Tag: judges
Danziger: Judge Not, Lest Ye Be Trumped

Danziger: Judge Not, Lest Ye Be Trumped

Jeff Danziger’s award-winning drawings are published by more than 600 newspapers and websites. He has been a cartoonist for the Rutland Herald, the New York Daily News and the Christian Science Monitor; his work has appeared in newspapers from the Wall Street Journal to Le Monde and Izvestia. He is represented by CWS Syndicate and the Washington Post Writers Group. He is the recipient of the Herblock Prize and the Thomas Nast (Landau) Prize. He served in the US Army in Vietnam as a linguist and intelligence officer, and was awarded the Bronze Star and the Air Medal. Danziger has published ten books of cartoons and a novel about the Vietnam War. Born in New York City, he now lives in Manhattan and Vermont. A video of the artist at work can be viewed here.

Lift The Blockade On Confirming U.S. Judges

Lift The Blockade On Confirming U.S. Judges

By Jonathan Bernstein, Bloomberg News (TNS)

Almost a month into the 114th Senate, the new Republican majority still doesn’t know what to do about filibusters of judicial nominations. The latest? An idea floated recently to eliminate filibusters on Supreme Court nominations (or, technically, to change cloture to a simple majority) seems to be DOA.

The background on this is that when Democrats went “nuclear” in fall 2013, reducing the votes necessary for ending filibusters on judicial and executive-branch nominations from 60 to a simple Senate majority, they omitted Supreme Court confirmations.

Democrats weren’t objecting to ideology-based filibusters against specific nominees, but to the across-the-board blockades preventing the president from filling any judicial vacancy at all. The filibuster that pushed Democrats over the edge was over three seats on the District of Columbia Circuit Appeals Court.

Even if the Republican position was indefensible, it isn’t off base to require some kind of supermajority to approve judicial candidates for the Supreme Court and for other seats on the federal bench.

Federal judges hold lifetime appointments. It’s a little bit weird that Ronald Reagan, George H.W. Bush and Bill Clinton all have considerable influence today because of their choices still serving not only on the Supreme Court, but on the lower courts as well. It’s consistent with the spirit of the Constitution to establish rules that reward mainstream selections. It shouldn’t be easy for a small, temporary majority to set its preferences in stone for a generation.

I’ve been floating a compromise that would prevent blockades of nominations by the minority party, but would also give some check against easy confirmations: requiring a number of Senate votes equal to the number of majority-party senators to block filibusters on judicial nominations. So with 54 Republicans right now, cloture would require 54 votes.

Now, of course, when the government is divided (as it is now, with a Democratic president and a Republican majority in the Senate), the Senate majority party can defeat any nomination without even needing floor votes; it can just kill nominations in committee, or refuse to bring them up for a vote. But in periods of unified government, this compromise would allow the president’s choice to be confirmed only if the president’s party was 100 percent united on the nominee — or, if the majority party wasn’t unified, it would need to find some votes from the other party.

This would still allow a unified party (controlling the presidency and a Senate majority) to confirm anyone it wanted. Presumably, though, anyone supported by the president and the party’s entire Senate caucus, or an equivalent number of votes drawn from both parties, would have to be someone in the mainstream. Otherwise, party moderates (and there are always moderates) might defect, and no crossover votes would make up for it. If support for a prospective nominee is going to be a tough vote for some in the party, that would encourage the president to make a less controversial or factional choice.

This kind of supermajority system — for all federal judges, including Supreme Court justices — gives at least some protection to minority points of view without allowing partisan blockades such as the ones Republicans put up in the last Congress. Senators who are looking for a compromise should consider the idea.

I’d also shift the burden from majority to minority; instead of needing 54 votes to invoke cloture and therefore defeat a filibuster, I’d require 47 votes to sustain a filibuster. Filibusters are justified in part because intense minority opinions are important; therefore, absent senators should count against the minority, not the majority.

Jonathan Bernstein is a Bloomberg View columnist. Readers may send him email at jbernstein62@bloomberg.net.

Photo: U.S. Senate Majority Leader Mitch McConnell, R-Kentucky, waits for the start of the State of The Union address by President Barack Obama on January 20, 2015, in the House Chamber of the U.S. Capitol in Washington, D.C. (Mandel Ngan/AFP/Pool/TNS)

Why Judicial Elections Are Idiotic And Bad For Law

Why Judicial Elections Are Idiotic And Bad For Law

By Noah Feldman, Bloomberg News (TNS)

Judicial elections are idiotic — but 38 states have them in some form. The U.S. Supreme Court grappled Tuesday with the contradiction inherent in using the electoral process to select public officials whose primary obligation is to be impartial. The precise question was whether a Florida rule that prohibits candidates for judicial office from personally soliciting campaign money violates the First Amendment. But the justices were really confronting was what to do about the strange phenomenon of judicial elections, a problem that goes to the essence of how the justices understand their own role. Unfortunately, their sense of judicial self runs headlong into their conception of the First Amendment.

The justices’ questions were revealing — and they said more about their conception of the judicial role than about how to solve the issue in Williams-Yulee v. the Florida Bar. Justice Sonia Sotomayor, who seemed most sympathetic to the Florida regulation, drew lessons from her own experience. “It’s very, very, very rare,” she observed, “that either by letter or by personal call that I ask a lawyer to do something, whether it’s serve on a committee, help organize something, do whatever it is that I’m asking, that that lawyer will say no. Isn’t it inherent in the lawyer­-judge context that people are going to say yes?”

Obviously, Sotomayor is correct. And the instinct to obey the authority figure isn’t limited to the Supreme Court. Justice Stephen Breyer made the broader point drawing on his experience and that of his brother, a federal district judge in San Francisco: “It’s a sort of a joke,” he began, “but it’s so true in the experience of the court of appeals that I had, my brother in the district court, district court judges I know, in state and federal systems, that the normal response … by a lawyer to a judge in any minor request or, you know, something normal, the answer is yes.”

Pause for a moment to think of what this means. The justices are acknowledging that, relative to lawyers at least, they’re basically omnipotent. When they ask for something, they get it. In this sense, they are closer to princes or bishops than they are to ordinary public officials.

Justice Antonin Scalia’s line of questioning made the justices sounded more like cardinals. He asked one of the lawyers whether the state could regulate certain judicial activities because they were beneath the dignity of the judge. He described what he called “an interest in judicial dignity. There are certain things that are infra dignitatem, as we say.” Later in the argument he returned to the concept, asking the lawyer for the state whether he was “relying on” the judicial dignity argument — an invitation the lawyer declined.

Justice Elena Kagan, the past dean of the Harvard Law School (where she hired me, among other questionable decisions), wanted to know about the constitutionality of the federal canon of judicial ethics that prohibits judges from soliciting money on behalf of nonprofit groups. “Who cares whether I solicit funds on behalf of my old law school,” she asked. “It doesn’t have anything to do with what rulings I’m going to issue, who I’m going to favor, who I’m not going to favor.”

The justices, in other words, were clearly thinking about this case in terms of their own conception of what it means to be a judge. The context, however, makes things more complicated.

Today’s justices are careful to remain aloof from even the appearance of connection to politics. The idea that judges in the states must dirty their hands by running for office strikes the justices as undignified and even coercive.

For the court’s liberals, then, it’ll be tempting to uphold the Florida regulation on the ground that judicial elections are special. The trouble is that, deep down, the justices seem to understand that judicial elections are preposterous. Given that their very structure would seem to undercut the possibility of impartiality, it’s hard to say with a straight face that the state should be allowed to limit free speech to keep such elections “clean.”

On the other side of the scale lies the First Amendment, which applies with its greatest force when political speech in the balance. Justice Anthony Kennedy has been a leading voice on the current court arguing that free speech outweighs almost all campaign-finance restrictions. For him, it would be difficult to treat judges running for office differently from other candidates. His free-speech pronouncements have tended to be absolute rather than context specific. Any special solicitude for keeping elections clean would tend to support campaign- finance regulation.

Judicial elections are therefore problematic for Kennedy, too. His instincts may tell him that judges are different — and the justice who cares most about the concept of dignity can hardly be deaf to the concern of preserving the dignity of his office. Yet Kennedy’s jurisprudence points toward freedom of speech as an absolute value for electoral candidates. To announce a free-speech right for judicial elections would be to acknowledge that judicial elections are no different than any others.

In a perfect world, I think the justices would strike down judicial elections as inherently unconstitutional. Then they could make the whole problem go away. But the states are laboratories of democracy, as Justice Louis Brandeis once said. Within those laboratories, the experiment is allowed to go terribly wrong. Judicial elections have been with us for almost 200 years, and despite the efforts of retired Justice Sandra Day O’Connor, they aren’t going to disappear anytime soon. Until then, judicial elections are a classic example of a hard case. And you know what they say about hard cases: They make bad law.

Noah Feldman is a Bloomberg View columnist. Readers may send him email at nfeldman7@bloomberg.net.

Photo: Scott* via Flickr