Since 2005, the United States District Court for the Eastern District of North Carolina has had an open seat, the product of partisan bickering in the Senate. George W. Bush nominated attorney Thomas Farr for the seat in 2006, but Senate Democrats failed to process the nomination. Barack Obama subsequently nominated two different women to the seat during his presidency, but both nominations were blocked by Senate Republicans. Now Donald Trump has come full circle, re-nominating Farr for the same seat. And despite deep opposition by Democrats, Farr’s nomination advanced out of the Senate Judiciary Committee yesterday on a straight party-line vote.
It’s unclear who benefits from this partisan rancor, but it is very clear who loses: the courts and the public. For a dozen years since Judge John Malcolm took senior status, the Eastern District has been down an active district judge. Given that the district is only authorized to have four active judges, the court has been operating at only three-quarters capacity for more than a decade — and through no fault of its own.
I have no opinion on whether Mr. Farr is the right man for the job. But the public should reject as outlandish that the seat was not filled by someone long ago.
Russell Fagg, who recently retired from a life-appointed position as a United States District Judge in Montana, announced yesterday that he will seek the Republican nomination for the U.S. Senate from that state. The winner will oppose incumbent Jon Tester in 2018.
Judge Fagg is hardly the first jurist to seek a position in another branch of government — former Alabama Chief Justice Roy Moore recently won the Republican Senate nomination in that state, and another former Alabama Chief Justice, Sue Bell Cobb, is running for governor. In the other direction, many Supreme Court Justices (among them John Jay, William Howard Taft, Hugo Black, and Sandra Day O’Connor) came to the bench after extensive careers in the executive and/or legislative branches.
Judge Fagg is touting his judicial experience — more than 25,000 cases during a 22-year career. And there is something to be said for having a jurist’s mindset in the legislature — one that is capable of coolly and dispassionately evaluating complicated matters. Of course, having that mindset does not mean that one will use it, and the Senate has not exactly been a paragon of reasoned deliberation in recent years. But it will be interesting to see whether — and how — Montana voters account for Judge Fagg’s third branch experience as the race heats up.
Governor Jerry Brown has signed a bill requiring judicial candidates in California to appear on the ballot with “actual government job titles” rather than fanciful designations designed to elicit emotional voter reaction. In recent elections, candidates have sought and received ballot designations like “Child Molestation Prosecutor” and “Gang Murder Prosecutor.” Under the new law, candidates will have to list either their formal job titles (e.g., “City of Los Angeles Deputy City Attorney”) or provide a short, neutral description of their work (e.g., “Attorney at Law”).
The bill had broad bipartisan support, and it is not hard to see why. Allowing candidates to select their own designations may spur the voter reaction needed to win (who doesn’t love a “Gang Murder Prosecutor”?), but badly poisoned the impartiality and legitimacy of California’s elected judiciary. How could any criminal defendant hope for a fair trial before a judge who owed his election to that prosecutorial slogan? Even if the judge was able to transition to a mode of impartial decisionmaker — which many prosecutors have done with great success — who would believe it?
This was, then, an eminently sensible move. But Californians should hardly be complacent. The state’s more than 1500 trial judges are still chosen by popular election, and there is little reason to be confident that merely removing the most egregious designations from the ballot will improve matters much. Over the years, the state’s judicial elections have been poisoned by ethical lapses, the flow of money into campaign coffers, and political dog-whistling. And there is an alternative: the state uses gubernatorial appointment to fill unexpected vacancies on the trial court (due, for example, to death, retirement, or promotion), and that process that could be extended to all trial court selection. True, it would take a constitutional amendment, but many states have done just that over the past 70 years.
I am not holding my breath just yet. But until serious judicial election reform comes to the Golden State, Californians are merely editing out the worst excesses of a lousy system.
In an interesting example of governmental interdependence, the High Court of Australia will consider this week whether seven Members of Parliament should be disqualified from their elected positions because they hold dual citizenship. Australia requires its MPs to be Australian citizens; the affected legislators are all technically dual nationals, most of whom share citizenship with New Zealand.
That a court should have to make this decision is not itself particularly intriguing. But there are several unusual and interesting dimensions. First, the hearing will take place over three days — significantly longer than, say, the one hour that the U.S. Supreme Court typically allows for cases of similar importance. Second, the decision will have significant ripple effects, especially if the MPs are ruled to be ineligible. Australia’s narrow governing coalition may be put at risk, new elections will have to be called, and earlier decisions made by the MPs (two of whom are also government ministers) could be challenged. Third, the problem might have been avoided long ago: the dual-citizenship issue has been on the political radar for two decades or more, but all efforts to amend the country’s Constitution to address it have lost steam. Ultimately, the High Court will have to make a legal decision with potentially profound political consequences.
Some additional reactions from Down Under can be found here and here.
These are tumultuous political times in Catalonia, which voted last week to declare independence from Spain. (The Spanish government argues that the vote, and any subsequent action, are illegal.) The independence declaration, which may come Tuesday, has spurred the regional judiciary in Barcelona to request extra police presence. Currently the court building is protected by police loyal to the Catalan government; the President of the High Judiciary of Catalonia is requesting further presence by the National Police force.
This blog has been closely following the Democratic primary elections for county judge in Brooklyn, New York, where voters were forced to choose between candidates approved by the Democratic party machine and a group of “insurgents” running on an independent slate. The election took place earlier this month, and the results are … flabbergasting.
Continue reading “Brooklyn judicial elections take an even more dismaying turn”
The Ontario Judicial Council has issued its disciplinary opinion regarding Justice Bernd Zabel, the Hamilton-based trial judge who wore a red “MAKE AMERICA GREAT AGAIN” baseball hat into his courtroom on the day after the U.S. presidential election last November. The hat, of course, is associated with Donald Trump’s presidential campaign. It is uncontested that Judge Zabel wore the hat into his courtroom, stated “Just in celebration of a historic night in the United States,” and then removed the hat, placing it on the dais with the MAGA phrase visible to all in the courtroom. He presided over about ten matters before taking a recess, at which point he removed the hat from the courtroom. The hat did not return after the recess.
Unsurprisingly, Judge Zabel’s behavior spurred sharp reactions, including 81 formal complaints from a variety of public interest organizations, lawyers, and law professors. (I informally critiqued his actions on this blog as well; see link above.) Interestingly, however, none of the formal complaints came from any lawyers or parties before Judge Zabel that day. Indeed, lawyers in the courtroom that day, and those who have appeared before Judge Zabel in the past, defended his overall judgment and integrity even as they classified the events of that morning to be a professional mistake.
Judge Zabel, too, quickly realized his error. After the Globe and Mail ran a story about the incident two days later, the judge made a public apology in his courtroom. He explained that he was trying to make a humorous gesture, that in retrospect it was entirely inappropriate, and that he sincerely regretted the decision. Later, Judge Zabel sought out private lessons on judicial ethics from another member of the bench.
The judge’s contrition notwithstanding, the Hearing Panel of the Ontario Judicial Council on Monday suspended Judge Zabel for 30 days without pay. This was the most severe sanction they could issue, short of removing the judge from office. In my view, it was too harsh a sanction, supported by surprisingly slipshod reasoning. More below.
Continue reading “Ontario judge who wore MAGA hat into his courtroom receives 30-day suspension without pay; did the Ontario Judicial Council overreact?”