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.

June 30th, 2018

More SCOTUS; More Tissues

Back in 2009 when Justice David Souter retired, I wrote that I would love to see SCOTUS judges who had actually practiced law with living, breathing, broken humans sitting, at some point, in their offices.

This week, with Justice Kennedy’s announced retirement, Trump said he wanted yet another Harvard or Yale judge. As if we didn’t already have a bench stuffed with them.

Diversity takes many forms. Sometimes it is has to to do with gender, race, religion, etc. But there is another kind of diversity, and that goes with what we actually have done with our lives.

Hopefully, we won’t see yet another person who has spent a lifetime on the bench or in academia (or combined), and one that has lived a life (from the law-related perspective) with diversified experience.

My 2009 post regarding the filling of the Souter’s seat (by Judge Sotomayor) is re-printed here in full:

The SCOTUS Nominee and The Tissue Box Test

I want to talk about tissues and the law and Supreme Court nominees. As the legal blogosphere and political Washington buzz about the judicial philosophy President Obama will be looking for in a judge to replace Justice David Souter — and what underrepresented social niche the nominee will come from, be it female, black, Hispanic, gay, etc. — what I want to know is if the nominee has ever had a box of tissues on his or her desk. For clients.

I want a nominee that knows what it’s like to have someone cry in their office. I want a nominee that has been there when someone tells them that their mother/father/brother/daughter was arrested/injured/killed and that they are desperate for help.

I want a nominee to know what it’s like to see real people — not political philosophies or corporate giants trying to add a few cents per share to their earnings — in their office in distress, and to represent them. I want a nominee that has experienced being the last, best hope for a downtrodden individual and the problem brought in the door. I want someone who knows what it’s like to be the underdog against corporate or government interests.

I want a nominee to know what it’s like to make the rent. To pay an employee. From their own pocket and not someone else’s. To answer the phones. To argue the case. To battle against deception. To actually practice law in the real world instead of in the ivory tower under the protective wings of others.

Our court is stuffed with Harvard and Yale law school grads, most of whom I think never actually tried a case for a private client, financed a case, or fought for an individual before ascending to the lofty heights of the appellate bench.

Last week Norm Pattis wrote on why we need a trial lawyer on the Supreme Court.He said:

A trial lawyer knows about raw human need and the law’s rough edges. It is a trial lawyer’s job to find the intersection of terror, fear and tears with the high doctrine and principle of the law. Not one member of the current court has ever sat with a client and his family during jury deliberations to discuss what will become of a family should the client be sent to prison.

We don’t have anything resembling a cross-section of society on the court. We don’t have people who look at broken bodies up front and personal in their offices. That’s why we have the tissue box. It isn’t to wipe our own noses.

At Simple Justice, Scott Greenfield picked up the Pattis theme with this about the birth of the trench lawyer movement:

In the trenches, we experience life, along with the huddled masses who care far less about whether a judge is a constructionist or originalist or texturalist. We know the consequences of decisions, together with the consequences of delayed decisions. Our view is ground level, and our understanding of how badly the law can hurt comes from holding the hands of the maimed. We know that people lie, cheat and steal, but we know that isn’t limited to the defendants. We have philosophies, but we live realities.

Perhaps life’s experience representing individuals will mean something different to the practitioner-judge than the philosopher-judge when the government strips away rights. Or corporations do a cost-benefit analysis and determine a few deaths aren’t so bad for their product because the profits will still exceed the legal payouts.

If Obama wants a judge who “understands that justice isn’t about some abstract legal theory or footnote in a casebook” then he better find a lawyer who once had that tissue box on the desk for the clients.
———————–

November 13th, 2017

Subverting the Constitution

Brett J. Talley

The news, if you care about the courts and the constitution, was pretty awful last week. The lede in this LA Times story was the the Senate Judiciary Committee rubber-stamping a grossly unqualified and incompetent judicial nominee.

How do I know he was grossly unqualified and incompetent? Because he has just three years of actual practice and has never tried a case:

Brett J. Talley, President Trump’s nominee to be a federal judge in Alabama, has never tried a case, was unanimously rated “not qualified” by the American Bar Assn.’s judicial rating committee, has practiced law for only three years and, as a blogger last year, displayed a degree of partisanship unusual for a judicial nominee, denouncing “Hillary Rotten Clinton” and pledging support for the National Rifle Assn.

On Thursday, the Senate Judiciary Committee, on a party-line vote, approved him for a lifetime appointment to the federal bench.

And so while various politicos think and talk in terms of grooming judges for future higher judgeship where they can become activist in shaping policy and interpreting laws and the constitution in a way favorable to their political ideology, those of us in the trenches are forced to practice law in front of them. But this potential judge has never brought a case or even argued a motion:

“He’s practiced law for less than three years and never argued a motion, let alone brought a case. This is the least amount of experience I’ve seen in a judicial nominee,” said Kristine Lucius, executive vice president of the Leadership Conference on Civil and Human Rights.

Once upon a time, a judicial appointment was the capstone of a career spent in the law, with new judges bringing the wisdom of their decades of experience. Now it is turning into a political training ground for clueless baby lawyers.

But it is not enough to rail against Trump for doing this, because Trump only nominates. And nominating/appointing the most competent people to positions has not exactly been the hallmark of his administration.

Talley can only take the bench if the Senate says so. So far, the Judiciary Committee, which should know better than to sabotage the Constitution, simply bent over for Trump and took it. It is inconceivable that any person on that committee believes Talley has the competence for being a judge.

So what can go wrong? The people that will suffer are litigants who are force to come before him if the Senate continues the Judiciary Committee’s rubber stamping.

And if you think this will auger well for those of a conservative bent, under the theory that Talley is merely a political hack who will do their bidding, then I think you’re mistaken. Bad rulings lead to appeals. And delays. This is money and time. Getting a favorable ruling in the trial court only to be reversed on appeal is not a benefit.

There are many lawyers who, if a judge is about to commit reversible error, will stop the judge even if the ruling would favor them at trial. Because a tainted verdict is quite often a very bad problem. (Others, of course, will gleefully grab the bad decision and just worry about the ramifications later.)

The Senators know what they should do. The question is will they have the courage? Will they show respect for our Constitution? Will they allow incompetence to take the bench?

We will find out soon.

Addendum: I wrote this in 2009 about what I want to see in a SCOTUS nominee, but much of it holds true for lower level federal judges as well. I want to see experience: The SCOTUS Nominee and The Tissue Box Test

Elsewhere:

He has never tried a case, but Trump wants to make him judge for life (Phillips @ The Washington Post)

Brett Talley, a 36-year-old lawyer whom President Trump nominated for a lifetime federal judgeship, has practiced law for only three years and has yet to try a case….

…Talley’s lack of experience in the courtroom and his partisan commentaries, however, were repeatedly questioned by Democrats on the Judiciary Committee.

“Your overall qualifications and preparation for becoming a lifetime-appointed federal judge are a concern to me,” Sen. Dianne Feinstein (D-Calif.) said, according to her written questions to Talley.

Sen. Richard J. Durbin (D-Ill.) did not mince words, asking questions like: “How can you claim to be qualified for a lifetime appointment to supervise federal trials on a daily basis when you have never yourself tried a single case?” and “Do you think it is advisable to put people with literally no trial experience on the federal district court bench?”

Donald Trump’s Unqualified Judges (Mataconis @ Outside the Beltway)

Where [Trump] differs from those predecessors is in the percentage of nominees who have been rated “not qualified.” As can be seen [in the attached chart], he is far ahead of any of his four immediate predecessors in this category, with roughly 20% of his nominees to date receiving the rating.

Talley Ban (Greenfield @ Simple Justice)

He worked in the Alabama Attorney General’s office for a couple years, and now for DoJ since January. Talley’s is the resume for a senior associate position at Biglaw, and he would almost certainly get the job. It’s not a bad resume. It’s just not federal judge material…

…So what makes Brett Talley unqualified? It’s the package. He’s a legal kid, a babe in the legal woods. Born in 1981, a year before I graduated law school, he’s been admitted to practice ten years. Had he been in the trenches for all ten of those years, he still wouldn’t be qualified to serve as a federal district court judge. Nobody knows their ass from their elbow in so short a time. Nobody gains the breadth of legal, or human, experience without paying their lawyer dues. Regardless of the pieces that comprise the package, the sum total of the package is what matters. His package is almost empty.

February 16th, 2016

A SCOTUS Question – For presidential debates

Dear presidential debate moderators:

I offer up this question for our future presidential debates:

Over the last several decades, each time a Supreme Court judge needed to be replaced it became a matter of extreme partisan confrontation. We see this again today with the death of Justice Scalia.

People now live longer and presidents seek to fill the seats with ever-younger individuals, thereby making each seat more contentious.

How do you feel about term limits for Supreme Court judges (for example, 14 years) with the judges thereafter being returned to courts of appeals or district courts, at their discretion?

Wouldn’t the higher turnover for the seats make the issue less contentious, as well as open the seats up to more experienced people in their 50s and 60s?