McDonald nomination passes Connecticut House

The controversial nomination of Andrew McDonald to the Chief Justice of Connecticut barely passed the state House of Representatives on Monday, by a 75-74 voted. Several Democrats joined Republican opposition to make the vote extremely close.

McDonald had previously received an “unfavorable” report when his nomination led to a 20-20 committee vote. In the leadup to the House debate, outside groups accused Republicans of opposing McDonald because of his sexual orientation. Republicans again fiercely denied that charge in the House. And indeed, most of the debate centered on McDonald’s decision to join a slim 4-3 court majority which struck down the Connecticut death penalty. That decision spared the lives of two men on death row who had been convicted of killing the wife and daughters of state Rep. William Petit. Petit firmly fought against McDonald’s nomination.

The nomination now moves to the state senate, where Republicans hold a slim effective majority.



The new and old style of politics in judicial selection

Earlier I reported on the deadlock in the Connecticut Judiciary Committee over the nomination of Justice Andrew McDonald to become that state’s next Chief Justice. The entire legislature will take up the nomination next Monday. In the meantime, certain trolls have apparently posted homophobic slurs about McDonald on the internet. (McDonald, a former Democratic legislator, is openly gay.) And in response, a left-leaning lobbying group called True Justice has created a digital ad accusing Republican opponents of McDonald’s nomination of “hate” and “homophobia.” The Republican leadership has been insistent that its opposition has nothing to do with McDonald’s sexual orientation, which seems wholly plausible since it was never an issue when McDonald was originally confirmed to the bench five years ago.

To be clear, it certainly does appear that Republican opposition to McDonald’s ascension is politically based — they would prefer someone with more conservative (or less liberal) credentials. This intersection of law and politics is perhaps unavoidable in the modern age, but it still hurts the credibility and perceived impartiality of the judiciary. Legislative Republicans would be better off confirming an accomplished jurist to the position for which he was duly nominated, and liberal agitators would be better off by not trying to turn every policy decision with which they disagree into hysteria and name-calling.

Meanwhile, Hawaii’s federal district court will soon have new judges, thanks in large part to tried-and-true backroom politics. This article lays out the interesting negotiations between the White House and Hawaii’s Democratic senators to get a number of federal judicial nominees confirmed. Score one for the old style of politics.

Federal courts ban employees from engaging in partisan campaign activity

The United States Courts have quietly imposed a new ban on campaign donations and partisan political activity by court employees and administrative staff. The new rule went into effect March 1.

An Administrative Office spokesman told the ABA Journal that only “bright-line” partisan activity–not issue advocacy–is prohibited. Moreover, court employees may still donate time and energy to charities, religious organizations, and professional organizations.

This is a sensitive area, which requires a carefully balanced policy. The courts are surely motivated by the need to appear politically neutral and unbiased, a concern that applies to court employees as much as judges. But the “bright line” that the Administrative Office suggests is quickly likely to become blurry in practice. Is a donation to an advocacy group like the National Rifle Association or Planned Parenthood a partisan activity within the meaning of the new rule? Such organizations are so closely tied in the public mind to a particular political party that they can raise the same specter of partisanship even if the organizations themselves are technically nonpartisan.

There are also First Amendment issues at stake. Federal judges are bound by a Code of Judicial Conduct, which limits their ability to engage in partisan political activity as a matter of professional ethics. But the Supreme Court has concluded that notwithstanding prevailing codes of conduct, state judges retain First Amendment rights to speak on political matters. Court employees (who are not bound by a judicial code) would seem to have an even stronger argument for First Amendment freedoms.

The Administrative Office is keeping the new policy largely internal for now, and has said that it will address individual questions as they come up. I predict that this is likely to turn into a headache for the AO going forward.




West Virginia’s appellate court crisis

Odd things are happening on the West Virginia Supreme Court.

On February 16, Chief Justice Allen Loughry was demoted and replaced as chief by Justice Margaret Workman. The unusual move, which followed a vote by the court’s other members, was apparently precipitated by a spending scandal. The court system spent more than $360,000 on Loughry’s office space since he joined the court in 2013, including a $32,000 couch. Loughry and the state court administrator pointed fingers at each other. The administrator has since been fired. In light of the crisis, the state senate voted to assume immediate legislative oversight of the judicial branch’s budget.

Shortly before these events transpired, Loughry also undertook a massive administrative reorganization of the West Virginia court system, consolidating 27 court divisions into only six. Several court administrators lost senior positions, and at least two supreme court justices strongly opposed the move. Justice Robin Davis told a reporter:

“I voted against the Court’s most recent Administrative Office reorganization for two critical and distinct reasons…. First, there is an appalling lack of clarity in the newly structured Court Services Division because there is no longer a distinct chain of command for each of the different types of courts comprising the judiciary.

“Collapsing magistrate courts, drug courts, family courts, and circuit courts under the same umbrella of supervision will severely hamper and drastically delay response time in answering critical questions and responding to the needs of these courts.

The “purported efficiency” of streamlining the division will in fact, actually restrict citizens’ access to justice and judicial resources, she stated.

As this crisis unfolds, legislators are separately debating whether to add an intermediate court of appeals to the state judiciary. West Virginia is one of only nine states without an intermediate appellate court, meaning that all appeals must be heard by the state supreme court, or not at all. Republicans in the legislature are pushing the change, with support from the U.S. Chamber of Commerce.

There are many advantages to adding an intermediate appellate court. For one, it would streamline the supreme court’s workload. It also carries the potential to lower the stakes of electing supreme court justices: if the supreme court were not the only appellate body in West Virginia, major donors would have less incentive to finance supreme court candidates. (And the historical corruption on the West Virginia Supreme Court as a direct result of election financing is well documented.) Of course, the same problem might just be manifested in the intermediate appellate court as well, but there is at least a chance for reform. Against these advantages is the cost: the tag for a new appellate court would be many millions of dollars.

It will be fascinating to see how these developments play out.  Can/will structural reform to the West Virginia courts bring an air of ethical reform as well?

Georgia judge faces contested election after prominent local attorney promises “blood sport”

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.”


Some thoughts on the Wendy Vitter nomination

I am quoted toward the end of this story on the nomination of Wendy Vitter to be a federal district judge in the Eastern District of Louisiana. As I pointed out in the story, the EDLA is down two full-time district judges and desperately needs people to step in and roll up their sleeves: the district has the second-highest number of pending cases in the country, and the sixth-worst number of trials completed during the last fiscal year.

The story emphasizes that many observers are happy with Vitter’s nomination — she has more than 100 criminal trials under her belt as a state prosecutor, and generally seems to be well-respected within the New Orleans legal community. Still, detractors raise three objections to her nomination: her lack of federal litigation experience, her marriage to a former U.S. Senator, and her Catholic faith.  None of these should derail her nomination.

Continue reading “Some thoughts on the Wendy Vitter nomination”

Federal courts will remain operational during government shutdown

The Administrative Office of the U.S. Courts has announced that all federal courts will remain open for during the current government shutdown, using reserve funds that can last approximately three weeks. The AO further explains:

If the shutdown were to continue past three weeks, and exhaust the Judiciary’s resources, the Judiciary would then operate under the terms of the Anti-Deficiency Act, which allows work to continue during a lapse in appropriations if it is necessary to support the exercise of Article III judicial powers. Under this scenario, each court and federal defender’s office would determine the staffing resources necessary to support such work.

Funding is the court system’s most prominent externally acquired resource. Hopefully the courts’ ability to work through cases is not adversely affected by a long shutdown.