Judicial Selection

Are Maryland’s Judicial Salaries Too Low?

Here is a link to an article in today’s Daily Record about the state’s Judicial Compensation Commission’s recommendation that Maryland’s judges should be given a raise. According to the article, the judiciary last received a raise in 2008. In 2009, the Commission recommended a $39,858 raise to be phased in over four years, but the plan was never put into law by the legislature.

All of Maryland’s judges are paid six-figure salaries. It’s an easy reaction to dismiss the Commission’s recommendation as an attempt by an already well-paid judiciary to get even more from the state’s coffers. This is particularly true when a recommendation like this is made in a time of public and private belt-tightening due to a down economy. Certainly, many will make that argument.

Good benefits, paid holidays, and strong retirement plans have historically been some of the draws of public employment as opposed to working in the private sector. The trade-off is generally making a lesser salary than would be earned in a comparable position in the private sector. As the article points out, most judges that came to the bench from a private legal practice took a pay cut to do so. But on the other hand, many judges come to the bench from other government positions or from private practice situations that may have been less lucrative than some others. Presumably, there are judges for whom taking the bench entails a pay raise.

This is issue is more complex than it initially appears, and I don’t have a clear answer. I can say that I have had the personal experience of working with many judges whom I believe provide value to the judicial system far in excess of their listed salaries. But I am not sure that Maryland’s economic (and political) climate has changed so much since 2009 that the proposed raise will be an easier sell to the General Assembly or the electorate.

Senate Republicans Continue to Shamefully Block Confirming Judicial Nominees

I mean, seriously. Even that hippie rag The New York Times recognizes this is a problem.

Nobody seriously contends that President Obama’s judicial nominees are any less qualified than those of the prior office holder, George W. Bush. Nonetheless, the Times’ editorial states that at a comparable point in time 61.4% of Bush nominees were confirmed as opposed to less than 50% of President Obama’s nominees.

Many of these nominees have already been approved once or even twice by the Senate Judiciary Committe. One of these is University of California law professor Godwin Liu, who has even been endorsed by Bill Clinton adversary Kenneth Starr for his “independence and openness to diverse viewpoints.”

These are qualified nominees. It’s unconscionable to not allow them to proceed to the Senate floor for a vote. The nation’s judiciary should not be used to play politics. In my view, confirmation of judicial candidates should be a one question process. Are they qualified? If so, confirm them. Quit worrying about ideological litmus tests. It all evens out in the end. When a Republican holds our nation’s highest elected office, they will have their turn. All this infighting does is deprive the country of the service of these qualified candidates while the politicians bicker back and forth.

Unfortunately, the majority of Americans do not understand the importance of this issue or the continuing harm it does to our judicial system. So don’t look for these Senators to get a flood of constituent calls demanding that this logjam be broken up.

Confirming Federal Trial Judges Should Not be a Political Football

Here is an article from the AP discussing the extreme problems President Obama has had in getting federal judicial nominees confirmed.

There are 854 federal judgeships. 102 of them are vacant. 47 of the vacancies have been labeled “emergencies” by the federal judiciary due to heavy caseloads. Although the Obama administration got off to a slow start, there are now 45 nominations awaiting a vote, with two of the nominees having waited for 13 months.

The article places primary blame for this on “[a] determined Republican stall campaign,” but also points out that Senate Majority leader Harry Reid (a Nevada Democrat), “has been unwilling to set aside the considerable time needed to force votes.”

The article says this has been delaying not only votes on nominees to appeals courts, but also nominees to trial courts. These consist of U.S. District Courts and local Washington, D.C. courts, whose nominees also must be confirmed by the Senate because Washington, D.C. is a federal enclave.

It has been such a problem that even Republican Senators Lamar Alexander and Bob Corker have taken the Senate floor to plead for a vote on an appeals court judge supported by both.

I disagree with, but at least understand, objecting to appeals court nominees on ideological grounds. But objecting to or delaying confirmation of trial court judges is just stupid. They don’t make policy. Having open judgeships just delays the courts in promptly resolving the cases on their dockets, and inhibits the parties’ ability to access the courts. Fewer judges means that all civil and criminal cases take longer to resolve than they should.

As I argue here, at a minimum there should be a streamlined confirmation procedure to fill seats on trial-level courts. Otherwise, cases sit unresolved and the country as a whole suffers for it. So get moving, Senators.

Why Can’t The Supremes Go To The Bench?

Occasionally U.S. Supreme Court Justices find the need to recuse themselves from hearing a particular case. Generally this is because of a conflict of interest. The classic example is where a Justice owns stock in a company with a case before the Court. In the near future, we will see Justice Kagan recuse herself from hearing several cases that she worked on as Solicitor General before her nomination.

This has a strange end result. Most appellate courts have an odd number of judges. The Supreme Court has nine, the Court of Appeals of Maryland has seven. The reason for this is obvious- to prevent a tie.

The potential problem is that when the Supreme Court loses a member to recusal, the case is heard by an eight-member court. This raises the possibility of a 4-4 tie. This article from the Washington Post discusses a plan to fix this potential problem. Senator Patrick Leahy has proposed allowing retires justices to be recalled for particular cases to prevent a tie, and also to promote recusal in light of an appearance of a conflict. Retired Justices occasionally sit on every federal court we have, except for the Supreme Court.

Of course, politics has reared its ugly head on Senator Leahy’s very practical idea. The dispute is over how to decide which retired Justice to recall in a particular case. Basically, how to prevent the Chief Justice or whoever makes the call from cherry picking a retired Justice of a particular ideological bent in an attempt to swing the outcome of a case.

First, I think its unfair to assume conduct like this would happen. I would hope anyone who was confirmed as Chief Justice would find the thought of doing this ethically repugnant. Second, we have had this in Maryland forever, and I have never heard of such an accusation being made about our Court of Appeals.

If it were up to me, I would do it the way they hand out overtime in union factories. Whoever had the most seniority woudl get offered the chance to sit first, and then go down the list of seniority until a retired Justice volunteers. Then when there is another case, you start where you left off on the list. Seems pretty fair, right?
Since this seems practical, it will probably never happen.

Scalia Says He Wouldn’t Be Confirmed Today, Like That Would Be Bad.

U.S. Supreme Court Justice Anonin Scalia gave a speech in Bozeman, Montana on Wednesday, in which he stated that if the vote were held today, he doubts that he would get the 60 votes needed for confirmation.

Strangely, he seemed to be implying that would have been a bad result.

He blames the politicized nature of today’s confirmation process on some judges’ reliance on the “living Constitution” doctrine. Justice Scalia interprets the Constitution with the aid of an 1848 Noah Webster dictionary. Because apparently, none of the changes in the last 150 years are relevant to interpreting the document.

Scalia stopped the speech twice. First to kick out a crying baby who was unable to maintain the proper Clarence Thomas- like silence, and then again to stop the clicking coming from the cameras of the reporters in the front row.

You know what’s funny? A searchable version of the1828 (no searchable version of the 1848 one) Noah Webster dictionary is available for free on the internet. It defines “jackass” as “the male of the ass.” No wonder Justice Scalia likes the old dictionaries, since my modern ditionary also includes “[a] foolish or stupid person; blockhead”.

Today’s Sign of the Apocalypse

Judge Judy is pulling down $15 million a year for a show that lasts 22 minutes a day, exclusive of commericals.

I hate Judge Judy. People see her show and think it bears a resemblance to real court cases and real lawsuits, which it does not. And her behavior is flat-out unaceptable for a real judge.

Does the Supreme Court Lack Diversity of Experience?

Ron Miller and I have a tendency to get off-topic when we are collaborating on a case or project. One thing we have been talking about recently is judicial selection, spurred on by the recent nomination of Elena Kagan to the U.S. Supreme Court. Ron sees a lot more benefit in putting Harvard/Yale intellectuals on the Court than I do. His theory is that you are more likely to hit on a good candidate from that background that you are from say, UB Law grads. I know he will not think I did his viewpoint justice in the preceding sentence, maybe he will elaborate in his blog.

Related Information

I would like to see a much broader range of experience. I think the Court is becoming too homogenous. It is full of former appeals judges, government lawyers, and academics. By way of example, once John Paul Stevens (I just love his keyboard work on Houses of the Holy) retires, there will not be a single member of the Court who has ever served in the military. I would bet that more than half of the current Justices have never tried a jury trial, and that no more than one of nine has ever represented an ordinary person in court outside of a pro bono program in some huge law firm. On this issue, the only “maybe’s” I can find are Anthony Kennedy and Sonia Sotomayor. Kennedy at one point took over his late father’s private practice, and at some point Sotomayor worked on her own, but I couldn’t find exactly what kind of work each did. But that’s only two possibles of nine. I think that is a real problem.

The thing about the law is that it does not exist in the abstract. Certainly there are broad policy components to nearly everything the Court does. But having the brute mental horsepower to wrap your mind around those sort of weighty issues is not the whole ballgame. At some point, ALL law is ultimately applied to a specific situation. That is where the rubber meets the road. And we have a Court full of people who have never been there when that happens. We do not have one single Justice who made a career representing individual human beings.

And we never will. Never. The word you are looking for is “unconfirmable.” The day a real trial lawyer sits on the Supreme Court I will probably die from shock. We live in a world where Rep. Bruce Braley is shouted down on the House floor to cries of “trial lawyer.”
I did a minimal (and when I say minimal, I mean minimal) amount of research, and I found only two Justices who made representing real people a focus. Abe Fortas, who argued Gideon v. Wainright (the case establishing a right to counsel free of charge for defendants in criminal cases) and Thurgood Marshall who argued a case you probably have heard of, Brown v. Board of Education (school desegregation). Interestingly, Marshall also argued Murray v. Pearson in the Court of Appeals of Maryland, which resulted in the desegregation of the University of Maryland’s law school. That school’s law library is now named after Marshall.

Would the Senate confirm Thurgood Marshall today? I wonder. Just look at the recent controversy over some of his comments in the context of Elena Kagan’s nomination. In a speech in 1987 Marshall described the Constitution as originally drafted as a “defective” document. You know, because of that whole thing about it basically leaving out any rights for people who were not white males.

Kagan was a clerk for Marshall. She was attacked by Republican National Committee Chair Michael Steele as having shown “support for statements suggesting that the Constitution “as originally drafted and conceived, was ‘defective.’” First, what an insane system we have where a nominee is scrutinized over what she thought of a speech her former boss made in 1987! Second, Michael Steele should thank God every day that Thurgood Marshall held those views, since if he had not, there is a good chance Steele would never had the chance to go to Georgetown or to be Maryland’s Lieutenant Governor, what with him being African-American and all.

Imagine the controversy if Marshall himself was the nominee in 2010. Staff counsel for the NAACP? These kind of things are why we have the blandest Court possible. Lawyers who hold strong beliefs and who will go to court and fight for them on behalf of average Americans will never sit on a court where having no record to critique is actually an advantage in the confirmation process. So there you go. Don’t look for me or Bruce Braley on the Supreme Court anytime soon. But, you never know. Ruth Bader Ginsburg was counsel to the ACLU.

The U.S. Senate Impedes Access to Justice

The Baltimore Sun reports that the Senate Judiciary Committee has approved President Obama’s two most recent judicial appointments for Maryland. The nominees are Ellen L. Hollander, and James K. Bredar. This means that the next step in the confirmation process is for the nominations to proceed to the Senate floor for a confirmation vote by the full U.S. Senate.

Hollander has been a judge on the Court of Special Appeals of Maryland since 1994. For out-of-state readers, this is Maryland’s intermediate appellate court where appeals of right are heard by three-judge panels. It is a court of record, where opinions may published if they touch upon issues of broad significance. I have argued appeals before Judge Hollander. She was bright and well-prepared, and has a good reputation among the bar generally.

Bredar has been a United States Magistrate Judge since 1998. A magistrate is basically “judge light.” Typically they rule over pre-trial motions, settlement conferences, and discovery disputes and issue opinions that are then adopted or approved by Article III (confirmed by the Senate) judges. Magistrates may also preside over trials by the consent of the parties. Judge Bredar has the reputation of being a good trial judge and of having skill in mediating disputes between the parties to litigation.

Neither of these nominees are particularly controversial, but that does not mean they will be quickly confirmed. According to the Baltimore Sun’s Paul West, there are 23 other judicial nominees in line for a vote before Hollander and Bredar, and the recent nomination of Elena Kagan to the U.S. Supreme Court is expected to delay the process further. There may not be a vote until late fall.

I think that sucks. I understand, but do not really approve of, the intensely political nature of appointments and confirmations for federal appellate courts. Those courts make broad rules that will affect many cases, and may alter the development of our rule of law. But these delays and investigations into nominees for federal trial courts are just stupid. U.S. District Court judges simply direct traffic at the intersection of facts and law. I don’t mean to minimize the great responsibility they have, but they do not have a far-reaching effect on the development of law and public policy. The Senate should immediately develop a streamlined process for the confirmation of trial court judges. If they are qualified, they go on the bench. This will minimize delays, lessen crowded dockets, and promote the administration of justice.