Fair Courts E-Lert: Senate Moves Forward with Nomination of Justin Walker to Influential D.C. Circuit

Federal Courts

Senate Moves Forward with Nomination of Judge Justin Walker to Influential D.C. Circuit

On May 6, the Senate held a confirmation hearing for the nomination of Judge Justin Walker to the D.C. Circuit Court of Appeals, the second most influential court in the country.

Days before Walker’s hearing, D.C. Circuit Chief Judge Sri Srinivasan asked Chief Justice John Roberts to “assign another circuit to look into a complaint filed by the progressive advocacy group Demand Justice, which questioned the timing and circumstances of Judge Thomas B. Griffith’s retirement announcement in early March,” according to the New York Times. Srinivasan’s request was denied by Roberts on May 8.

The complaint by Demand Justice had been prompted by reporting from the New York Times that Senate Majority Leader Mitch McConnell (R-KY) had been directly contacting Republican-nominated judges eligible for senior status or retirement and urging them to do so.

Walker’s nomination has been controversial; as a protegee of McConnell, former Kavanaugh clerk, and one of the youngest federal judges at 38 years-old, he has only served as a federal judge in Kentucky for 6 months.

Federal Judiciary Requests Additional $36.6 Million from Congress for Covid-19 Response

The federal judiciary has requested additional funding and legislative changes from Congress to help federal courts respond to the Covid-19 pandemic. Previously, the judiciary was awarded $7.5 million in relief funding via the CARES Act, the $2 trillion relief package signed by the President in late March.

On April 28, the judiciary sent a letter to the leaders of the Senate and House Committees on Appropriations requesting an additional $36.6 million in funding for “emergent needs such as enhanced cleaning of court facilities, health screening at courthouse entrances, information technology hardware and infrastructure costs associated with expanded telework and videoconferencing,” among other costs for probation and pretrial services and costs related to security.

 The judiciary also urged Congress to implement 17 legislative changes, including proposals intended to protect incarcerated people and criminal defendants, address administrative court matters after the pandemic, and alleviate certain statutorily imposed deadlines in bankruptcy cases. “The underlying objective behind each proposal is to ensure that the federal [j]udiciary continues to meet its constitutional mandate while protecting the health and safety of court personnel, litigants, and the public,” the judiciary wrote.

State Courts

Increasing Number of State Supreme Courts Address Unconscious Racial Bias in Jury Selection

An increasing number of state high courts are working to mitigate the impact of implicit racial bias in jury selection, according to The Marshall Project.

In 1986, the U.S. Supreme Court held that race discrimination in jury selection is unconstitutional in Batson v. Kentucky, and since then, prosecutors have been required to provide a “race neutral” reason for striking prospective jurors. Despite Batson, the discriminatory use of preemptive strikes has continued across the country because courts have been willing to accept almost any reason from prosecutors as race neutral, even if the result is an all-white jury.

Over the past two years, however, state supreme courts in Washington, Connecticut, and California have taken steps beyond Baston to protect against race-based jury selection. Earlier this month, North Carolina became the latest state to strengthen protections against jury selection bias, with the state’s high court issuing a decision that trial judges are required to provide more scrutiny for allegations of racial discrimination in jury selection.

Ohio Judge Postpones In-Person Jury Trial after Controversial Decision to Proceed Amid Pandemic

While most state and federal courts have opted to suspend in-person jury trials to prevent the spread of Covid-19, a judge in Ashland County, Ohio, insisted on proceeding with what is thought to be the nation’s first in-person jury trial since the outbreak of the pandemic.

The defense attorney in the case, Adam Stone, repeatedly asked Common Pleas Court Judge Ronald Forsthoefel to postpone the trial, citing concerns about the spread of Covid-19 and reluctance from jurors about going to court. But Forsthoefel insisted on moving forward, even though the prosecutor’s office had no objection to the delay.

On May 6, Forsthoefel ultimately agreed to postpone the trial after the Ohio Association of Criminal Attorneys filed a writ of prohibition asking the Ohio Supreme Court to intervene. (The justices previously voted to allow the trial to proceed so long as Forsthoefel complied with social-distancing measures). In his order, Forsthoefel said that he decided to postpone the trial because he did not want to force the justices to “make snap decisions about a number of important constitutional questions unique to our current health crisis.”