Recently in Judiciary Category

Kenneth R. Feinberg, partner and founder of Feinberg Rozen and administrator of the government's two outside-the-courts victims' compensation funds for September 11 and the BP Deepwater spill discusses mass injuries and alternative dispute resolution in the American legal system. Manhattan Institute's Center for Legal Policy also hosted an event featuring Mr. Feinberg which allowed for a more extended and comprehensive discussion of ADR and modern mass litigation.

In a new podcast, Steven Malanga, Manhattan Institute senior fellow and City Journal's senior editor, discusses his recent City Journal article "The Court That Broke Jersey" which argues among other things that "the state's activist judiciary has forced taxpayers to finance unprecedented educational and housing regimes."

New York Times, January 28, 2012, "Filibustering Nominees Must End": editorial calls for end of filibustering of judicial nominations.

New York Times, March 13, 2003, "Hold Firm on Estrada": editorial calls for Senate Democrats to refuse to hold a vote on nomination of Miguel Estrada. "The criticism [of the filibuster] rings hollow, given that some Republicans making it... voted to filibuster when President Clinton nominated Richard Paez" to the Ninth Circuit.

Might I suggest that the New York Times's criticism of the filibuster "rings hollow" today?

Of course, Paez got an up-or-down vote, got seated, and then proceeded to demonstrate why Republicans voted against him with a series of decisions abusing his judicial authority. The Bush-nominated judges who got seated by virtue of the Gang of 14 compromise after the original filibuster have served admirably without controversy, as surely as the several other judges who remained filibustered because of the compromise, such as Miguel Estrada, would have. (Disclosure: I have a case pending before one of those judges, Janice Rogers Brown. I also have two cases pending before the Ninth Circuit without panel assignments, and I'm adverse against Estrada's firm in one of those cases.)

There is a principled argument to be made against the judicial filibuster of nominations. After eight years of supporting such filibusters, the Times doesn't have the moral authority to make it until it admits its earlier mistake or until after eight years of Democratic administrations, whichever comes first. Barack Obama should nominate Miguel Estrada (just as George W. Bush nominated a filibustered Clinton Fourth Circuit nominee, Roger Gregory) before complaining about D.C. Circuit filibusters.

Newt Gingrich's attack on the judiciary is doubly unfortunate. It would be bad enough if it were simply wrong, but it's worse than that because there are kernels of legitimate grievances in Gingrich's critique that are buried in a decidedly radical view of the Constitution that would obliterate checks and balances and the ability of that document to protect limited government.

Let's start with the more wrongheaded aspects of the Gingrich analysis. Why attack Cooper v. Aaron, of all cases? That's a simple application of the Supremacy Clause: when the states and the federal government conflict, the federal government wins. That's before you get into the political problems of being perceived as defending racial segregation and opposing the Fourteenth Amendment powers of the federal government to end it. Whatever dog whistle advantage one is hoping to gain in the primaries will be more than overwhelmed by the soundbites used to alienate independents against you in the general election.

Ed Whelan and Matthew Franck have more than adequately refuted Gingrich's idea that Congress can remove judges by defunding judgeships; that's just incorrect as a Constitutional matter.

The "two out of three" rule—whereby Congress and the Executive could collude to override a Supreme Court decision—would have extraordinary consequences. A Democratic Congress and President want to ban guns? Any willingness of the Supreme Court to preserve the Second Amendment would have no effect. Congress wishes to pass the Elena Kagan Memorial Eat Your Vegetables Law? If the president signs it, what could the Supreme Court do? Beyond that, Congress could vote dictatorial powers for the president, cancel elections, bar speech criticizing incumbents (or just one political party)—two-out-of-three, so Congress passing, and the president signing gives the Court nothing to say about the matter. That's a lot of protection against Leviathan to give up just for the momentary satisfaction of overriding First Amendment protections against mandating that minorities participate in Christian school prayer.

What Gingrich doesn't understand is that the Constitution requires three-out-of-three agreement before limited government can act: Congress has to pass a law, the President has to sign it (with some rare veto override exceptions), and the judiciary has to be satisfied that the law is not outside the scope of the government's limited powers. As Roger Pilon points out, when Gingrich expresses upset at the overaggressive New Deal laws the Supreme Court signed off on, it was Congress and the President who acted outside their powers, and the Supreme Court that failed to act.

Where we need to distinguish is between legitimate judicial action—the exercise of the Article III judicial power to protect the citizenry from unconstitutional exercises of government power—and judicial activism, the misuse of the judicial power to act as a superlegislature to create new causes of action or to overrule legislation or constitutional provisions thought unwise. Part of the problem is Congressional laziness, a tendency to punt issues to the Supreme Court with poorly drawn legislation that grants large swaths of judicial discretion to interpret Congressional commands; for that, see Nick Rosenkranz. But the larger problem is judicial aggrandizement: courts dictating how prisons or school systems are to be run, finding ways to thwart the popular will for capital punishment, engaging in other social engineering outside of the legitimate judicial power. There, Gingrich has a smaller point: the original constitutional checks and balances have dissipated. He's correct that part of the solution is the appointment of judges that respect the rule of law, though that is an unfortunate uphill battle, given the enmity of much of the legal academy and one of the political parties to that position. But the other is to end the Congressional abdication of its impeachment authority.

As I pointed out five years ago, the 21st-century notion that "judicial independence" meant that judges were above Congressional criticism is a recent invention. The Founding Fathers anticipated that judges would get too big for their britches, and further anticipated that the check on such judicial aggrandizement was Congressional investigation and impeachment. As Alexander Hamilton wrote in Federalist No. 81:

It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.

This is an important potential reform that could do much to solve the problems of overreaching judges were it to become a once-again accepted mechanism. (That's quite some time away: there's not even a substantial minority, much less a two-thirds majority, of Congress that buys into this aspect of the constitutional structure.) It's a crying shame that that signal is being buried by the noise of the rest of Gingrich's wrongheaded proposals and the way he's selling these issues. Judge Mukasey is right: the Gingrich proposal needs a red pen taken to it.

On Tuesday, Senate Republicans (with the exception of Sen. Lisa Murkowski of Alaska) voted against an up-or-down vote for President Obama's nominee Caitlin Halligan, chosen to fill one of three vacancies on the U.S. Court of Appeals for the D.C. Circuit. The rejection of Halligan, general counsel with the New York County DA's office and former NYS solicitor general, is the second by the Senate who rejected Goodwin Liu's nomination to the 9th Circuit in May.

This raises an interesting question about the future of the judicial nomination process. Before a bi-partisan agreement was reached in 2005, there was a real legislative push mounting by Senate Republicans to eliminate the ability to filibuster judicial nominees. Will Senate Democrats now mount a similar effort? Will a new bi-partisan solution be reached? Or will the Obama Administration continue to face a Republican wall of opposition to its judicial nominees?

The WSJ states the following on the matter:

Again, in our estimation, all of this blocking is so much petty politics, the type of which both parties engage in regularly, to the detriment of the U.S. people. Call Republicans obstructionists, however, and they get defensive, arguing that Democrats did plenty to try to block Bush nominations. Ask Dems about the Bush years, and they'll refer to tactics taken up by Republicans under Clinton. And on and on -- all the way back, it seems, to the Supreme Court confirmation hearings of Robert Bork in 1987.

Yet, nearly a quarter-century later here we are: History proving, once again, to be a nightmare from which we have yet to awake.

What do you think about filibustering judicial nominees? Should there be a legislative fix? Let us know what you think on Twitter via #PoLforum

Last week, the New York Times revealed the results of a judicial vetting process conducted by the American Bar Association's Standing Committee on the Federal Judiciary consisting of fifteen members. The results uncovered that the committee opposed 14 of the approximately 185 potential nominees that the Obama administration presented for evaluation, declaring them "not qualified."

The NY Times reports that nearly all of the prospects given poor ratings were women or members of a minority group. This particular fact generated some criticism of the vetting process, more specifically the criteria used by and makeup of the ABA's committee. In almost three years, the number of President Obama's potential nominees deemed "not qualified" already exceeds the total number similarly declared by the ABA during the full eight-year administrations of Presidents Bill Clinton and George W. Bush. Though it is important to note, the Obama Administration has decided not to nominate anyone the committee declared "not qualified."

Administration officials are perplexed about the reasons for some of the low ratings, and in discussions with bar panel leaders, they have expressed growing frustrations, people familiar with those conversations said. In particular, they have questioned whether the panelists -- many of whom are litigators -- place too much value on courtroom experience at the expense of lawyers who pursued career paths less likely to involve trials, like government lawyers and law professors....

The chairman since August of the bar association's vetting committee, Allan J. Joseph, would not confirm any negative ratings but defended the panel's work as fair-minded and independent. Its members, he said, are all volunteers who, as a matter of public service, put in long hours reading candidates' writings and conducting confidential interviews about them with dozens of judges and lawyers.

The Senate refused to approve most of Bush's nominees to the Fourth Circuit, and Barack Obama has dominated the appointments process: five of the fourteen sitting judges are Obama appointees. That makes the total nine Democrats to five Republicans—and one of the Republican appointees was originally a Clinton nomination renominated by Bush as part of a compromise. The Baltimore Sun notices that the jurisprudence of the court has changed.

Bankruptcy Judge George C. Paine remained a member of the Belle Meade Country Club, which effectively prohibits female and African-American members, even after they rebuffed his efforts to desegregate. The Sixth Circuit refused to hold this sanctionable in a 10-8 vote because of Judge Paine's efforts to desegregate, but the Committee on Judicial Conduct reversed, noting that under Canon 2C, "Membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge's impartiality is impaired." No sanctions will accrue against Judge Paine given his pending retirement, but other judges are on notice.

This is a much more far-ranging decision than people realize, because organizations that practice invidious discrimination—same-sex fraternities—are quite common. We know we can't always trust Wikipedia, so take this list with a grain of salt, but articles on that site (which are largely written by bragging fraternity members) Judge Harry Edwards (D.C. Circuit) is a member of the all-male Alpha Phi Alpha, Judge James Singleton (D. Alaska) is a member of the all-male Tau Kappa Epsilon, Roger Gregory (4th Circuit) is a member of the all-male Omega Psi Phi. Will they be required to renounce their memberships in organizations that practice invidious discrimination? (Fraternities have a greater effect on society than country clubs.)

An important Federalist Society white paper on how trial-lawyer-stacked judiciaries are vetoting civil justice reforms in a number of states, and looking at a number of upcoming state-court cases challenging caps on damages.

Left-wing thuggishness is disturbingly common there, and not just in the recent unsuccessful union demonstrations to protect their special-interest privileged status from taxpayers.

• I'm not particularly surprised that the math shows that the University Wisconsin undergraduate and law schools racially discriminate against whites: such racial discrimination is a matter of course in higher education, and I'm surprised that there aren't more entrepreneurial conservative activists taking this sort of thing on in the courtrooms instead of just writing op-eds. What surprises me is the brazenness with which students and administrators violently shut down a press conference on the subject, and how the left defends such violations of freedom of speech. [CHE (with great link roundup); see also OL]

• "[O]n September 16, [University of Wisconsin-Stout (UWS) theater professor James] Miller placed a new poster on his office door in response to [the university's] censorship. The poster read 'Warning: Fascism' and included a cartoon image of a silhouetted police officer striking a civilian. The poster mocked, 'Fascism can cause blunt head trauma and/or violent death. Keep fascism away from children and pets.'" The university demanded he take that poster down because of the reference to "violent death." FIRE is on the case.
• Why hasn't Wisconsin Supreme Court Justice Ann Walsh Bradley faced any discipline for making false allegations against a fellow justice? [Blaska]
• Meanwhile, though Governor Scott Walker won a victory for taxpayers against unions, the victory may only be termporary. In previous rollbacks of excessive union benefits—even rollbacks caused by bankruptcy, patient unions just waited for a future friendly government, and got those same excessive benefits restored retroactively. [Greve @ Fed Soc]

Georgia Superior Court Judge Douglas C. Pullen has "approved more than $33.8 million -- substantially more than any other judge in the Chattahoochee Judicial Circuit -- in contributions to dozens of charities, universities and other organizations in Columbus and around the state." Pullen has been honored for his cy pres awards of other people's money by one of his beneficiaries (including a YouTube video), and has directed millions to his alma mater, which gave him an honorary degree and where he will teach a law course. I'm quoted as part of a Columbus Ledger-Enquirer investigation into the ethics investigation pending against Pullen.

Judge Pullen's actions seem remarkably similar to those of Judge Ward in the Google Buzz case.

One unaddressed aspect of the story: judges who know that a class action settlement will eventually give them lots of money to distribute to their favorite charities may be incentivized to make rulings that make a larger class action settlement possible, as well as to approve an unfair class action settlement. Defense attorneys need to take a stronger stand against abusive cy pres. Earlier.