Two nominees for Israel’s Supreme Court were confirmed this week. Alex Stein, a Brooklyn Law professor who was born in the Soviet Union, will join current Tel Aviv District Court judge Ofer Grosskopf on the country’s highest court. They will replace Yoram Dinziger and Uri Shoham, whose terms end later this year.
The nominations were not without controversy. Stein has lived in the United States for the past 14 years (he previously lived in Israel), but has a reputation as a conservative and was strongly supported by current Justice Minister Ayelet Shaked. The confirmations also came just a week after another Tel Aviv District Court judge, Khaled Kabub, withdrew his candidacy for the Supreme Court. Kabub, an Israeli Arab and a Muslim, faced stiff confirmation headwinds after another Israeli Arab, George Kara, was appointed to the court last year.
I have previously documented recent threats to the proper functioning of the court systems of India and Kenya. In India, appalling delays and overflowing dockets, combined with strife at the highest levels of the judiciary, have undermined with the effectiveness of the system and overall public confidence. Now, unfortunately, related news has been announced: the country’s lower courts face almost 6,000 judicial vacancies. Even for a country of more than one billion people, that number is shocking.
Kenya has faced a different set of challenges in recent months, after its Supreme Court invalidated a presidential election and was subjected to ongoing threats and attacks. This week’s news is of a less violent sort, but one that is perhaps even more problematic for the judiciary: more than 50,000 cases in the court system have been pending for a decade or more. And the total case backlog stands at more than 315,000.
These stories keenly illustrate the idea of judicial interdependence: courts must operate fairly and efficiently to earn public confidence, and they need adequate resources to be able to do so. When courts are properly resourced and properly run, they earn confidence and more resources–a virtuous circle. But when they are poorly run or under attack, they become inefficient and lose both resources and legitimacy–a vicious circle. The Kenyan and Indian judiciaries are locked into the vicious circle right now.
Georgia Superior Court Judge Ralph Van Pelt, Jr., a twenty-year veteran of the bench, will be opposed for reelection for the first time after a local attorney threatened “blood sport” against him.
In late 2016, prominent local attorney Bobby Lee Cook wrote to Judge Van Pelt: “I want you to finish your two years remaining on your term and to qualify for re-election — if you have the stamina and resolve! There is nothing so interesting as a Northwest Georgia election where politics for generations has been a ‘blood sport.'” Cook was apparently infuriated by Judge Van Pelt’s position that Cook’s daughter–herself a local judge–was not qualified to serve as the circuit’s chief judge.
Cook, a lawyer since 1949, considers himself to be a local power broker. He has represented many prominent Georgia families and was portrayed in the film “Midnight in the Garden of Good and Evil.” Cook credits himself with placing Van Pelt on the bench in 1996.
Last week, attorney Melissa Hise announced that she would challenge Judge Van Pelt in May’s election. Cook says he supports Hise’s candidacy but has nothing to do with it.
Van Pelt is more suspicious. “As a general rule,” he said, “I don’t believe in coincidences.”
Poland’s ruling party, the Law and Justice Party (PiS), recently implemented new rules that place judicial selection and retention in the hands of the legislature. The new rules are part of a larger set of deeply controversial set of judicial reforms that have virtually ostracized Poland from the rest of the European Union.
Now the head of the National Council on the Judiciary, Poland’s top judicial body, has resigned his position to protest the new rules, claiming that they violate the country’s constitution and infringe upon judicial independence. It is an important move, albeit a symbolic one, since the PiS has a dominant majority in the legislature and shows no signs of slowing its reform agenda.
Jonathan Remy Nash (Emory) has posted his new article, Judicial Laterals, on SSRN. It is a short and interesting empirical study of “lateral” moves by sitting judges, either from a state court to the federal bench, or vice versa.
Nash’s data set confirms many intuitions about such lateral moves. Unsurprisingly, a move from state court to federal court is overwhelmingly more common than a move from federal to state. Judges do occasionally leave the federal bench to join a state court, but almost always to “step up” within the court hierarchy (by moving, for example, from a federal district court to a state supreme court). Nash also examined connections between lateral decisions and factors such as the professionalism of the state court, the length of the judicial term on a state court, and the expected judicial salary.
The study was understandably limited to moves from one judicial position to another. But at some point it would also be very interesting to explore judges who leave the bench entirely for other legal (or law-related) jobs. We are accustomed to thinking about a judgeship as a capstone of a legal career, but there is no shortage of judges who leave before their terms are up to seek a different opportunity outside the courts. In recent years, for example, both state and federal judges have resigned their seats to take appointed political positions, run for elected office, enter academia, create think tanks, or even join the private sector.
The systemic explanations for these moves might well be complex and varied. State judges might be motivated in part by mandatory retirement ages, looming reelection or retention campaigns, higher salaries, better quality of life, or restlessness to try something new. Federal judges, with lifetime job security, are giving up something more. What motivates the change for them?
Perhaps some day we will be able to dive more deeply into that question. In the meantime, I commend Professor Nash’s piece to the reader.
The Dallas Morning News has a good story about the impact of longstanding federal judicial vacancies in Texas. For all the attention that President Trump has received regarding his judicial nominees, relatively few have been confirmed at the district court level. The article gives us a good look into districts where judicial emergencies stemming from longstanding vacancies are, unfortunately, a way of life.
Effective Monday, the Court of Common Pleas of Mercer County, Pennsylvania will be down to two full-time judges. One of those judges, Robert G. Yeatts, recently assured the public that courts will stay open for business, using retired judges to “run the courts as much as possible.”
Fortunately, the state politicians responsible for filling the seats seem aware of the problem and plan to add new judges as soon as possible. But this story beings into sharp relief the courts’ dependence on others for their most basic resources.