October 16th, 2018

Does Judicial Temperament Matter? (A Tale of Two Judges)

Supreme Court Justice Brett Kavanaugh during his confirmation hearing.

It was the worst of temperaments, and it was the worser of temperaments.

OK, not exactly the gold of Charles Dickens’ A Tale of Two Cities opener, but I needed something to compare the recent fiasco of Justice Brett Kanvanaugh‘s confirmation hearing with the removal of Queens Civil Court Judge Terrence O’Connor today.

Your familiarity with Kavanaugh’s angry, snarling, yelling screed will be assumed when members of Congress were calling for an investigation of potential sexual abuse.

Judge Terrence O’Connor, via NY Post

O’Connor was removed byNew York’s Court of Appeals today for his belligerence from the bench. You can read a summary of the details at this New York Law Journal article.

A sample of his conduct is this, from the opinion:

“Here, the record is replete with evidence supporting the Commission’s determination that, on numerous occasions, petitioner acted impatiently, raised his voice, and made demeaning and insulting remarks, often in open court. In so doing, he violated his obligation to treat those appearing before him with dignity and respect”

But the part that struck me most was this piece about the judiciary in general, about the need and duty to investigate potential misconduct, and why judicial temperament matters:

“Judges are also charged with promoting public confidence in the integrity of the judiciary through their own respect for the law. Public confidence in the integrity of the judiciary has long been recognized as essential to its vitality as well as our overall system of government. If the public trust in the judiciary is to be maintained, as it must, those who don the robe and assume the role of arbiter of what is fair and just must do so with an acute appreciation both of their judicial obligations and of the Commission’s constitutional and statutory duties to investigate allegations of misconduct.”

And that is the ultimate question for the public when it looks to the robe on the bench. Can we assume confidence and integrity with the rulings that come down?

 

September 28th, 2018

Saving the Supreme Court – 3 suggestions

Christine Blasey Ford, by Manuel Santelices. Used with permission.

Much will be written about the horror show yesterday before the Senate Judiciary Committee regarding the emotional testimony of Dr. Christine Blasey Ford and Judge Brett Kavanaugh. While there will be a million hot takes on its immediate significance, I’d prefer to look long term at the damage to the Court as an institution, and how to fix it.

Already suffering from deep politicization –made worse by the failure to the GOP to even give Judge Merrick Garland a hearing — it seems that the Court is doomed to have whatever shred of its integrity and dignity destroyed unless the Nation acts.

Over at Reason, however, Nick Gillespie sees no hope, and calls it “impossible.” In an article he wrote before the hearing, 3 Questions To Ask Yourself While Watching the Kavanaugh/Ford Hearings Today, he writes:

Is there any way to depoliticize the selection of Supreme Court justices? Almost certainly not, and it probably would be inadvisable in any case. The Supreme Court is part of the government after all, and the justices read the opinion polls and headlines too. They are selected by one politician (the president) and vetted by others (senators). Getting politics out of the process is impossible and ultimately, elections do indirectly change the makeup of the bench.

I disagree and offer my three ways to restore the integrity of the institution.

But before doing so, it’s important to note that when the Constitution was written, the average life expectancy was 36.  When you factor out all those that died in infancy and childhood, you obviously got a higher age, but it still would not have compared to today’s average age of 78.  Serving on the High Court was the culmination of a career.

Now, however, it is seen as a way to put someone on the Court for 30-40 years, thereby making each seat that much more potent. When you combine that with Congress’s continuing refusal to make tough decisions and instead pass its power to various agencies that make decisions without voter approval, you get a Court made even more powerful by virtue of the breadth of issues it must decide.

So how to deal with this? My three suggestions:

Term Limits. This is not a new idea and has been kicking around for awhile. If each jurist gets an 18 year term, with a new one picked every two years, you have regular turnover that reduces the impact of any one justice. After leaving the Court the judges can sit by designation in any District Court of Court of Appeals of their choosing, as retiring SCOTUS justices do now, and do so for life.

Pinch Hitters. As we saw with the Garland nomination, Senators have a motive to leave seats empty until a President comes along from their own party. This is, obviously, an insult to the Constitution. If the Democrats get a chance to get revenge and hold a seat open until the next election, they surely will do so. Additionally, there is sometimes an empty seat when judges must recuse themselves due to conflicts of interest, which was the subject of a satiric April Fool’s gag I wrote 10 years ago that had various justices recusing (or not) based on their participation in a fantasy baseball league. The gist of it was the recusal rules aren’t really all that clear and justices decide for themselves.

The solution? If there is a vacancy due to death, retirement or recusal, the Court pulls a name at random of a sitting Court of Appeals judge with 10+ years on the bench to sit by designation. This decreases the chance of Senators playing politics with the Court.

Advice and Consent. The Constitution says the President appoints the judges with the “advice and consent” of the Senate. But all too often, it seems, there is a request for consent without asking for that advice. The Judiciary Committee can agree, and make part of its rules, that it will provide to the President a list of 10 (or 20, or whatever) judges and that a hearing will be given for any one culled from that list. This, of course, requires actual cooperation among the Senators, who would choose the list members by a supermajority, thereby taking another step toward removing politics and eliminating extremist choices from either side. It would only be effective, obviously,  after the next election.

But you know what? This all presumes that the Senate actually wants the Court to be immune from politics. The more cynical view, and perhaps the more accurate one, is that Court nominations and fights are just another means of generating anger, which is then used for fundraising purposes.

So there are means out there to depoliticize the court. It can be done. The question is whether there is the will to do so.

 

September 25th, 2018

Judge Kavanaugh and the Art of Jury Selection

Judge Brett Kavanaugh, via Rolling Stone and Alex Brandon/AP/REX Shutterstock

As the Brett Kavanaugh confirmation spins wildly out of control with accusations of sexual assault, I’ve sat back and watched knowing that I’ve seen versions of this play before.

Those similar plays are not in politics, but in the course of jury selection.

This won’t take long.

Underlying virtually everything about the accusations is the concept of confirmation bias. Those who are hoping for a result, be it confirmation or rejection, will see the facts as they emerge with the spin that is most favorable to the conclusion that they want, in their hearts, to be reached.

It really isn’t that tough to see that, for varying reasons, a great many folks made up their minds before hearing all the evidence. And you know this because the witnesses haven’t even testified yet before the Senate Judiciary Committee.

The first example of this is Senate Majority Leader Mitch McConnell:

‘In the very near future, Judge Kavanaugh will be on the U.S. Supreme Court. We’re going to plow right through it and do our job.’

And the second is Senator Lindsey Graham, on the Judiciary Committee, demanding a vote ASAP:

 

These types of comments always accompany a ‘Don’t worry, we’ll be fair at the hearing’ attitude.

And this sounds like a version of Old West justice, “Don’t worry, he’ll get a fair trial before the hanging.”

Jury selection is a bit like that. A room fills with people who’ve lived lives that you know nothing about. And your job, in a very, very short time, is to see if you can root out those with biases — those who will, from the start of the trial simply be looking for information that will confirm their own biases about lawsuits of this type (whatever the type may be).

Hey, those biases may be great if they help you (as I always tell them)! But they can also be the death penalty of your case.

Every person that has uttered a conclusion on the Kavanaugh sexual assault allegations, regardless of which side they fall on, is utterly unsuited to be making a decision. Each and every one of them has reached a conclusion in advance of hearing all the evidence.

It’s true that, in this particular case, there are 100 jurors and 97% of them have already decided. But that isn’t the point of this post.

The point is about types of people and the way they form opinions and their ability to keep an open mind. A great many can’t do that, and those are the ones you need to find.

Sometimes, they expose themselves.