The Fair Courts E-Lert: NYU Law Review Online Symposium on Judicial Independence; Outside Group Enters Arkansas Supreme Court Race

May 4, 2018


NYU Law Review Online Symposium on Judicial Independence and Rule of Law in the Trump Era

In the Trump era, courts have been put on defense. The President has suggested courts should be blamed for terrorist attacks, targeted judges for their decisions, and pardoned a government official who refused to follow a court order. In November 2017, the Brennan Center for Justice brought together judges, advocates, scholars, journalists, and bar leaders to help assess the nature and extent of threats to the courts in the current political environment, and inform strategies and tactics for promoting the rule of law.

On Tuesday, the NYU Law Review published articles and responses coming out of the discussion, including an analysis by Judge Nancy Gertner on judging in a time of Trump, a national experiment by Michael Nelson and James Gibson on how criticism of the Supreme Court affects public support for the Court, and a piece by Shirin Sinnar on the dependence of oversight institutions within the executive branch on unwritten norms, among other pieces. The symposium articles assess the seriousness of current threats to the courts, grapple with potential solutions for protecting the courts and bolstering the rule of law, and examine the way such threats impact public perception of the courts.


Outside Group Enters Arkansas Supreme Court Race

On May 22nd, Arkansas Supreme Court Justice Courtney Goodson will compete in a nonpartisan general election against Arkansas Department of Human Services Chief Counsel David Sterling and Arkansas Court of Appeals Judge Kenneth Hixson to remain on the bench. With more than two weeks before the election, the race has already attracted outside spending: according to the Associated Press, the Judicial Crisis Network, a national conservative group, has spent more than $160,000 on ad buys opposing Justice Goodson. In 2016, the Judicial Crisis Network spent more than half-a-million dollars on television ads opposing Justice Goodson in the race for Chief Justice of the court, claiming that “Goodson’s message to trial lawyers is clear: it’s your court.” All of JCN’s 2016 television spending was untraceable dark money.

According to the AP, the candidates themselves in total have only spent around $45,000 on the race. Douglas Keith, of the Brennan Center for Justice, told the AP this means, “outside spending really could swamp what the candidates end up spending themselves. And voters won’t ever know where that money really comes from.”

If no candidate receives more than 50 percent of the vote in the May 22nd general race, the two candidates with the largest vote shares will compete in a runoff election on November 6, 2018.


San Francisco Superior Court Judges Face Controversial Challenge from Public Defenders

Four public defenders in San Francisco are mounting a rare joint challenge to four San Francisco Superior Court judges in the upcoming June election. The candidates’ spokesperson told the SF Gate, that the campaign is in part a reaction to President Trump’s large number of federal judicial appointments.

One of the challengers argued that the “conservative judges,” all four of whom are registered Democrats appointed by Republican governors, are “out of touch” with the politics of San Francisco. The challengers also tout the need for judges with greater diversity of experiences and perspectives. One candidate noted, “I would be bringing my perspective as a mom and a person of color and a homeowner and a lesbian [to the bench].”

However, many have critiqued the campaign. Assemblyman David Chiu (D-San Francisco), expressed concern regarding the “politicization of the bench,” and State Sen. Scott Wiener (D-San Francisco), added “This whole notion that these are ‘Republican appointees’ is absurd.” Presiding Justice in the California First District Court of Appeal, J. Anthony Kline, argued that “the effect of their effort threatens to undermine the independence and integrity of [the court],” and that “judges may think twice about ruling against politically influential parties, lawyers, or interest groups.”

The election will take place on June 5th.



Trump Confirming Judicial Nominees at Record Pace

The Hill reports that President Trump is on pace to have more judicial nominees confirmed in his first two years than recent presidents. Trump already holds the record for the most confirmed circuit court judges in a president’s first year, and recently-scheduled votes for nominees make it likely that “as soon as next week,” the Senate will have confirmed “more circuit nominees for Trump than President Obama, President George W. Bush or President Clinton got confirmed by the end of their second year in office.”

To keep up this pace, the Senate is breaking with recent precedent. Last week, Mitch McConnell (R-KY) prepared a floor vote for Michael Brennan, nominee to the 7th Circuit Court of Appeals – despite Sen. Tammy Baldwin (D-WI) refusing to return her blue slip, which historically allowed home-state senators to halt nomination proceedings for a judicial nominee. If confirmed, Brennan would be the second Trump nominee confirmed despite missing a blue slip.

The Senate has confirmed 33 of the Administration’s judicial nominees: 15 to courts of appeals, 17 to district courts, and Supreme Court Justice Neil Gorsuch.