Fair Courts E-lert: Judicial Vacancy Crisis Continues

May 31, 2013

Judicial Vacancy Crisis Continues
Last week the Senate confirmed Sri Srinivasan to the D.C. Circuit Court of Appeals, with a vote of 97-0. According to the New York Times, “President Obama will soon accelerate his efforts to put a lasting imprint on the country’s judiciary by simultaneously nominating three [additional] judges to [the D.C. Circuit], a move that is certain to unleash fierce Republican opposition and could rekindle a broader partisan struggle over Senate rules. In trying to fill the three vacancies on the 11-member United States Court of Appeals for the District of Columbia Circuit at once, Mr. Obama will be adopting a more aggressive nomination strategy. He will effectively be daring Republicans to find specific ground to filibuster all the nominees.”

Republican Senator Chuck Grassley wrote an op-ed in USA Today blaming President Obama for the high level of judicial vacancies. He argued, “The truth is, President Obama has nominated people for fewer than 30% of the vacant judgeships in the federal courts: 55 of 79 vacancies have no nominee. Only eight of 32 judicial emergency vacancies have a nominee. We can’t act on nominations that haven’t been made. Even though Republicans make good-faith efforts to move nominees expeditiously, Senate Democratic leader Harry Reid of Nevada often unnecessarily forces a 60-vote threshold for confirmation. It happened again just last week. Republicans agreed to an up-or-down vote, but Sen. Reid filed cloture anyway to create the appearance of obstruction where there is none.”

A blog from the American Constitutional Society blamed Republican obstructionism for the slow pace of nominations: “Despite the practically non-existent recommendations for Texas’s judicial vacancies, Senators Cruz and Cornyn supported an amendment to the upcoming immigration bill that would create new judgeships in Texas. When pressed about his failure to recommend anyone for Texas’s existing judicial vacancies, Cornyn responded that it was the president’s job to nominate judges under Article II of the Constitution. He declined to mention that Senate customs make it nearly impossible for the president to nominate a candidate for a District judgeship over the objection of a home-state senator. In the last 100 years, only a handful of nominees have been confirmed over the opposition of a single home-state Senator. If both senators are in opposition, the nomination is doomed to fail.”
Sources: Michael Doyle, Sri Srinivasan Goes From Basketball Court To Appeals Court, Washington Post, May 26, 2013; Chuck Grassley, White House Sheds Crocodile Tears, USA Today, May 27, 2013; E. Sebastian Arduengo, A Troubled Path for Judicial Nominees, American Constitutional Society Blog, May 24, 2013; Michael D. Shear, Obama Plans 3 Nominations for Key Court, New York Times, May 27, 2013.


Montana Judicial Candidate Blames Secret, Outside Money for Defeat
The Center for Public Integrity published a piece in the Redlands Daily Facts chronicling 2012 Montana Supreme Court candidate Ed Sheehy’s experience with election spending by an outside group not required to disclose its donors. According to the article, “When Ed Sheehy looked at his mail one day last fall, he was startled to see his face staring back at him, posed alongside the notorious ‘Christmas Day Killer.’ Sheehy, as a public defender, had represented the man a year earlier. Now Sheehy was running for a seat on the Montana Supreme Court and someone was using the double-murder to accuse him of being soft on crime.” The article continues, “The mailer showed only that it was paid for by the ‘Montana Growth Network,’ a ‘social welfare’ nonprofit, registered under Section 501(c)(4) of the U.S. tax code. Montana election records revealed next to nothing about the organization, which, because of its tax status, is not required to disclose its donors. The nonprofit’s website says its goal is to make Montana ‘more business friendly.’” The mailers avoided disclosure laws by not explicitly asking people to vote for one candidate or against another, but instead urging the recipients to contact the candidates and to sign an online petition.
Source: Michael Beckel, Center for Public Integrity, Judicial Candidate Blames Mystery Nonprofit's Attacks For Defeat, Redlands Daily Facts, May 15, 2013.

Concern in Chicago Over Use of Political Consultants
According to an article featured in the Chicago Tribune, Illinois judicial candidates are increasingly using political consultants to plan and manage their campaigns. One of the candidates who won a 10-year term in November is quoted as saying, “‘I approached it like I was going to try a big case. I wanted to be fully prepared for anything that might come up… Once I had to deal with the electoral system, I felt I better understand it and get people who could help me understand it.’” But, the Tribune says, “With candidates already retaining consultants for next March's primary election, the role these consultants play has raised increasing concern. Watchdogs who have long lamented the political nature of judicial elections fear that the growing influence of money will taint campaigns that under Illinois Supreme Court rules are supposed to focus on legal experience instead of partisan political issues… Critics are also troubled by another all-too-common reality for political candidates, judicial hopefuls included. Candidates must make hefty contributions to the Cook County Democratic Party — usually about $30,000 apiece — in exchange for being slated, an influential endorsement in a county so heavily Democratic and one that brings an army of campaigners.” These consultants are supposed to “bring political savvy, navigating the networks of committeemen and precinct captains who can help candidates win slating, building candidates' name recognition and smoothing introductions to the racial, ethnic or neighborhood groups that candidates might not otherwise reach. In some races, consultants handle such political heavy work as trying to knock opponents off the ballot and basics such as schooling a candidate on how and when to approach commuters for support.”
Source: Steve Mills, Judicial Hopefuls Rely On Political Consultants, Chicago Tribune, May 22, 2013.


Governing Magazine: Performance Based Assessment for Judges
Governing Magazine has an article exploring the possibility of changing the culture in the judiciary towards a system that includes “performance-based innovation.” The article states, “Excellence in organizations, particularly in the public sector, is achieved through creating the conditions for innovation: desired outcomes are clearly specified, performance is measured regularly so that there is an objective standard against which to gauge success, and a strong organizational culture encourages learning and experimentation. These are not the conditions that prevail in most of our courts: instead, roles, not outcomes, are defined; performance is measured merely by adherence to procedure; and the culture is focused on assigning credit or blame.” The piece continues, “When viewed through the lens of organizational science, courts boggle the mind. External sources (the voters or elected officials) select the ‘partners of the firm’ (the judges) with little or no input from the court or even any understanding of what needs a court may have. Judges' vision of sharing power with each other is often no more than an office-sharing arrangement, as if they were solo-practitioner lawyers whose practice specialty is being a judge. The result is that it is a challenge for courts to establish and maintain a sense of unity, let alone an organizational culture of innovation.”
Source: Babak Armajani and Kevin Burke, Creating the Courts Americans Want, Governing Magazine, May 22, 2013.