England and Wales seek to diversify and expand judicial recruitment

Lord Kakkar, Chairman of the Judicial Appointments Commission (JAC), announced a new “forward programme” for judicial recruitment over the next five years. The programme “will enable aspiring judges to identify ‘clear pathways’ to office and help candidates decide which roles to apply for and when,” according to a news story in the Law Society Gazette.

“No longer will candidates have to decide whether to run the risk or not of applying for a Recorder exercise when they don’t feel quite ready, just in case there is not another one for a few years,” [Lord Kakkar] said. “[This will] allow candidates to plan for how to prepare for future applications by, for example, seeking mentoring or observing judicial work. It will also help the courts and tribunals with their resource planning of the recruitment exercises, and inform the sequencing of exercises to allow fee-paid appointees to gain sufficient sitting experience to become strong candidates in future salaried exercises.”


Aspiring rabbinical judges in Israel must now certify that they have not withheld a divorce

I have written previously about the rabbinical courts in Israel, a court system which shares jurisdiction with Israel’s civil courts on divorce, family law, and personal status cases, but which applies entirely different law. This disparity often leads to a race to the courthouse among dueling spouses in divorce cases. Among the most controversial aspects of the religious law is a husband’s traditional power to withhold permission for the couple to divorce, which can trap women in unhappy or abusive relationships. Of late, the rabbinical courts have attempted to respond by sanctioning these “recalcitrant husbands,” although not to the degree advocated by women’s rights groups.

In an important new ruling, Israel’s Chief Rabbi David Lau has announced that aspiring rabbinical judges will now have to certify they have personally have not refused to grant their own wives a divorce. While refusal to grant a divorce is not automatically disqualifying, it will have that practical effect on a candidacy. An official in Rabbi Lau’s office stated that “Disqualifying candidates to be rabbinical judges for having been divorce refusers constitutes a values-based statement that a man who does not listen to the instructions of a rabbinical court can never be allowed to be a judge in a rabbinical court.”


Ohio Supreme Court Justice (finally) agrees to recuse himself from all new cases in light of pending gubernatorial run

Ohio Supreme Court Justice William O’Neill, who last week publicly announced his intent to run for governor, has now announced that he will recuse himself from all new cases coming before the Court. O’Neill previously indicated that he would continue to hear new cases, a position which drew considerable criticism from the state auditor.

O’Neill is currently the sole Democrat holding statewide office in Ohio. He has said that he will remain on the Court until he formally enters the race in February. In the meantime, he will campaign and raise money for his gubernatorial run.

Justice O’Neill may be legally permitted to campaign for governor while still on the bench. In a series of cases over the past decade, the Supreme Court has affirmed the First Amendment rights of judges to solicit campaign funds and publicly state their general positions on policy issues. But First Amendment rights do not parallel professional responsibilities, and running a political campaign from the bench can do untold damage to the judiciary’s legitimacy.  Justice O’Neill is free to seek another elected job, but he should resign from his current one first.


New Orleans judge: “We do not feel secure” in own courthouse

A Louisiana state judge has publicly stated that she and her colleagues “do not feel secure” in the New Orleans criminal courthouse, citing a dwindling police presence and lax security measures at courthouse entrances.

Previously, at least three unarmed deputies usually were in place to supervise significant numbers of inmates, keep order over audiences and issue subpoenas upon judges’ orders. Recently there have been only two per courtroom, or on rare occasions one.

Officers of the court — such as attorneys and clerk staff — also generally are waved through metal detectors at the court’s two public entrances without being subjected to a search of their person or belongings. [Judge] Flemings-Davillier said that, too, needs to change.

“We are asking the sheriff’s office to reinforce the rules that we already have,” she said, “because they have been lax and we have had some security issues.”

The Orleans Parish Sheriff’s Office has stated that it is unaware of any specific threats or incidents that should make courthouse personnel uneasy.

What just happened? October 2017 roundup

The month in a nutshell: politicians debate how to choose judges, judges debate how to choose politicians, and the Supreme Court’s opposition to courtroom cameras becomes increasingly hard to justify

The intersection of politics and the law dominated court news in October, as debates over judicial selection raged at both the state and federal level. In North Carolina, the ongoing battles between the governor and legislature over judicial selection methods culminated in a legislative veto override, a cancellation of judicial elections for 2018, and current proposals to limit all judicial terms to only two years. This seems a transparent and clumsy effort to give the Republican-dominated legislature a chance to heavily influence the state judiciary, and there will surely be more wrangling in the coming weeks. Meanwhile, in California the governor signed a bill that would limit the designations a judicial candidate could use on the ballot, preventing candidates from running as a “Child Molestation Prosecutor,” for example.  It’s a bandage on a much deeper problem infecting judicial elections in that state, but it was a bandage nonetheless. At the federal level, the President continued to nominate people to the bench, and the Senate is slowly processing those nominations, with one nomination finally advancing for a seat that has been vacant for twelve years.

However, judges also turned the tables last month, acting and opining on the selection of legislators and other politicians. In Australia, the High Court had to determine whether seven individuals holding dual citizenship were eligible to serve in the national legislature. In Kenya, the Supreme Court felt the fallout of last month’s decision to re-run the presidential election: Justices were repeatedly threatened, and only two were able to appear for an emergency hearing to postpone the election in late October. On a less serious note, a former federal judge in Montana announced plans for a Senate run, again suggesting an open doorway between the branches of government.

As its October 2017 Term began, the U.S. Supreme Court maintained its longstanding opposition to courtroom cameras, even dispatching Justice Breyer to argue against courtroom cameras in a television interview on CBS. This moment of terrific irony may have been lost on the court, but it highlighted the increasing isolation of its “no broadcast” position among American courts. Indeed, during the same month, the D.C. Circuit permitted a live audio broadcast of a high-profile appeal, and state judges in Iowa and Illinois indicated their support for video broadcasts of trial and appellate proceedings. And even though Judge Posner’s latest book and interview offered disappointingly little in the way of substance on the courtroom cameras issue, the simple fact that it was included among his recommendations has raised the profile of the issue further. The Supreme Court may still hold out on courtroom broadcasts for a while, but the needle is unquestionably moving away from the Court’s current position.

Macfarlane on Posner on pro se litigants

Katherine Macfarlane (Idaho) has posted her new article, Pro Se Prisoners’ Posner Problem (Missouri Law Review, forthcoming), on SSRN. It is a review of Judge Posner’s recent self-published book, Reforming the Federal Judiciary.  Cribbing from the abstract:

This book review … is focused on what Posner deemed the book’s “most important theme”—“the need for better treatment by the federal courts of pro se litigants.” His staff attorney proposals offer the most reform potential. This review examines the assumptions underlying Posner’s desire to assist pro se litigants, including the conclusions that pro se litigants are: “very often poorly educated and/or of limited intelligence”; “ignorant of the subtleties of the law”; and “basically fairly normal people who because of bad luck, psychological problems, poor judgment, lack of family support, or other internal or environmental misfortunes, simply have great difficulty living a law-abiding life.” In examining Posner’s newfound empathy for the pro se, this review will argue that empathy is a poor proxy for meaningful institutional change, concluding that though Posner has identified unjustifiable structural inequality, he has stopped short of fixing it. If pro se litigants deserve equal treatment, then eliminate all staff attorney programs. Assign pro se cases directly to judges’ chambers, make staff attorneys law clerks, and allow the new law clerks to work directly with jurists like Richard Posner.

Macfarlane’s review lucidly points out the strengths and weaknesses of Posner’s discussion of the treatment of pro se litigants — and there are indeed many strengths and weaknesses.  The review is a good, short read for those who want a summary of Posner’s arguments — and a clear-eyed analysis of the argument’s shortcomings.

Kenya’s Supreme Court schedules, then fails to attend, emergency hearing to postpone presidential election

Kenya’s court-ordered repeat presidential election is scheduled for today, and the situation is a mess. Opposition leader Raila Odinga has asked his supporters to boycott the event, and there appears to be widespread confusion about how the process is supposed to work.  The country’s electoral chief himself has stated that he has no faith that the country can deliver a free and fair election.

Within this maelstrom, there was a last-minute effort this week to ask the Kenyan Supreme Court to postpone the election. A hearing was apparently scheduled for Wednesday morning. But only two of the seven justices showed up for the hearing, making it impossible for the court to hear and render a decision. Among the missing justices was Philomena Mwilu, whose driver/bodyguard was shot and killed Tuesday night.

Early reports from today’s election have already centered on violence and clashes between police and protesters.