Gavel Grab

Presidents have a prerogative to fill congressionally authorized court vacancies, and for President Obama to do so on the U.S. Court of Appeals for the District of Columbia Circuit does not constitute “court-packing,” scholar Russell Wheeler says by way of rebutting a Wall Street Journal editorial (see Gavel Grab).

Wheeler (photo), an expert at The Brookings Institution on judicial nominations, offers his assessment in an American Constitution Society blog post. He quotes remarks in 1996 by then-Chief Justice William Rehnquist to make a point that Obama has a prerogative to leave his stamp on the D.C. Circuit Court.

Some Republican senators are arguing that the 11-member court should be reduced by three judges, a proposal opposed by Justice at Stake (learn more from Gavel Grab). The court currently has a 4-3 majority of judges appointed by Republicans. An Obama nominee, Sri Srinivasan, was expected to come before the Senate on a procedural vote and perhaps a final vote today.

Justice Rehnquist said in the context of President Franklin D. Roosevelt’s successful efforts to stem anti-New Deal decisions by the Supreme Court through appointments (but not through adding new seats to the court, which critics derided as “court-packing”):

“[T]he doctrine of judicial independence does not mean that the country will be forever in sway to groups of non-elected judges. When vacancies occur … on any of the federal courts, replacements are nominated by the President, who has been elected by the people of Read more

Our courts need a “culture of performance-based innovation” in order to reduce public dissatisfaction, a Minnesota judge and a co-author write in a Governing magazine essay. 

Hennepin County District Judge Kevin Burke and Babak Armajani, chair for the Public Strategies Group, are authors of the commentary, entitled “Creating the Courts Americans Want.” And what Americans want, they say, is courts “that are as good as their promise by being fair, efficient and effective.”

Read more

For years the judges on San Mateo County’s bench all tended to come from similar backgrounds, either that of a prosecutor or of a civil litigator. There were no former public defenders, and only one Asian American judge – Elizabeth Lee.

The San Francisco Examiner reports that a shift in this trend occurred in 2010, when two public defenders, Judge Leland Davis III and Judge Donald Ayoob (photo), were appointed to serve on the San Mateo County Superior Court.

Davis is now the lone African American judge serving in the county, and Ayoob is the sole Arab-American, the article notes. Read more

Tags: California

For the first time in seven years the U.S. Senate is poised to seat a new judge on the U.S. Court of Appeals for the District of Columbia, a highly influential court that decides many contentious regulatory issues in the nation’s capital.

The Senate is expected to vote on Thursday on President Obama’s nomination of Sri Srinivasan for the D.C. Circuit, according to a Roll Call article. If Srinivasan is confirmed, it will be a breakthrough for the Obama administration. Because the Senate Judiciary Committee unanimously approved the nomination, the Justice Department official is expected to win confirmation.

Earlier, Senate Republicans twice blocked the president’s nomination of New York attorney Caitlin Halligan to the court, and the 11-member court’s four vacancies are seen by some as symbolic of of increasing partisan warfare over judicial nominations in Washington. Read more

Political deal-making in appointing top judges and court-stacking are among the dangers posed by legislation introduced in Kansas to change the way judges are selected, a Lawrence Journal World editorial says. It warns of a likely “heated ideological battle next year about the role and significance of the state’s highest court.”

The editorial dissects three late-session proposals introduced by Republican Rep. Lance Kinzer (see Gavel Grab). The proposals would eliminate merit selection for the Court of Appeals and Supreme Court and replace it with a federal-style appointment-and-Senate-confirmation system; if that fails, reduce from 75 to 65 the mandatory retirement age for these judges; and split the Supreme Court in two, with a Court of Criminal Appeals handling criminal cases and the Supreme Court handling civil cases.

The editorial sees at play the guiding hand of politicians unhappy with court rulings, and it identifies perils of the proposals:

“It’s no secret that Gov. Sam Brownback and many state legislators are upset with the Kansas Supreme Court and its decisions on a number of issues — particularly its ruling that the state isn’t fulfilling its constitutional mandate to properly fund K-12 education. Rather than work to pass legislation or amend the constitution to deal with specific issues like school finance, however, legislators are choosing to attack the courts in ways that could potentially upset the intended balance of power among the three branches of government. Read more

Tags: Kansas

In these other dispatches about fair and impartial courts:

• Former Michigan Supreme Court Justice Diane Hathaway’s lawyer, Steve Fishman, argued Monday that she shouldn’t go to jail, despite admitting in January that she committed bank fraud. Fishman declared that Hathaway should perform community service or volunteer work instead of serving time in prison, according to the Detroit News.
• A new report released last week by New York court officials states that the process for appointing acting justices to the state’s Supreme Court has become too costly and needs to be reformed. Currently, the state’s chief administrative judge can appoint a lower court judge as an acting justice temporarily, says Thomson Reuters, but this can be costly since the acting justices are paid the difference in salaries between their own and those of Supreme Court justices.

New Jersey Gov. Chris Christie, who has repeatedly attacked the state’s Supreme Court as liberal activists, berated Justice Barry Albin this week. On Friday, before a State Bar Association conference, Justice Albin had urged the public to help protect impartial jurists from retribution by politicians, while stopping short of naming Christie (see Gavel Grab).

According to a (Newark) Star-Ledger article, Christie said the following:

“He can say, as far as I’m concerned, whatever he wants to say. He can be as wrong as loudly as he wants to be. But it’s interesting that they pick and choose when it’s appropriate for them to be speaking out on things and they get to be judge and jury on that.

“It’s very interesting. But, you know, Justice Albin …went down to the bar association and played to the cheap seats like the grandstander that he is. So, he can do what he wants to do.” Read more

Tags: New Jersey

On Monday, the U.S. Senate voted to confirm Sheri Polster Chappell to be U.S. District Judge for the Middle District of Florida, and Michael McShane (photo) to be U.S. District Judge for Oregon.

Chappell was confirmed on a 90-0 vote, while McShane was confirmed on a voice-vote, according to the Hill’s Floor Action Blog. McShane had been waiting more than a year for a confirmation vote.

“I want to express my concern for the growing partisanship that is dragging down our efforts to fill these judicial vacancies across our nation,” said Sen. Bill Nelson (D-Fla.). “Obviously these nominees should be confirmed without needless obstacles. …We are clearly going in the wrong direction in this Senate.”

An Oregonian article reports that McShane is the fifth openly gay federal judge appointed by President Obama. According to the White House, there has only been one other openly gay federal judge in the nation’s history who was confirmed.

In these other dispatches about fair and impartial courts:

• On Monday, the Texas House of Representatives rejected a measure that would detach pensions for them from the pay of district judges, and prevent them from raising their own pensions. According to the Dallas Morning News, Rep. Jason Isaac, the sponsor of the amendment, said he proposed the budget change in order to serve the citizens of his district, and not himself.
• The Texas Senate and House of Representatives passed legislation last week aimed at strengthening the State Commission on Judicial Conduct. The commission is charged with investigating complaints of judicial misconduct, but Andrew What of Texans for Public Justice argues that the commission rarely punishes judges, reports KERA News.