Election May Be Peak Of Obama’s Court-Appointment Power
The Los Angeles Times is noting that a Republican takeover of the United States Senate would likely mean that President Obama’s ability to control federal judicial appointments has peaked. The Times also notes that “… legal experts say it’s a record of unprecedented achievements in judicial diversity. Women make up 42% of his confirmed nominees, more than double the average of his five predecessors combined, while African Americans make up 18% and Latinos 6%. Eleven openly gay judges now serve…”
Photo from the LA Times report, “Obama’s best chance to influence the judiciary may be passing,” 11/2/14
There are still vacant seats, but you may recall the dust-up last November when Senate Democrats nixed the longtime filibuster rule for most judicial nominations, which allowed the president to select more liberal judges who would have had no chance under the old rules.
Less well known, after the filibuster change, is that Senate Judiciary Committee Chairman Patrick J. Leahy has continued what the Times calls a “… strict interpretation of arcane committee traditions, which effectively granted veto power over nominations to home-state senators.” That means the “… logjam was broken only in the 19 states with two Democratic senators. Often Obama has declined to nominate judges in states with Republican senators, leaving seven crucial appeals court seats, including the one on the 7th Circuit in Chicago, without a nominee.”
If you wonder what the election means for the nation’s courts, start with this LA Times report.
Magazine Notes High-Stakes Court Cases
Mother Jones magazine is offering a rundown on five states where electing state supreme court justices has become a high-stakes political battle, complete with spending millions of dollars on attack and counter-attack ads. The piece offers some familiar names for anyone who follows the judicial policy wars, like Texas and North Carolina, and some places where you might not have noticed conflict, like Tennessee.
In particular, the magazine notes that Florida, also home to significant fights over the governor’s office and of course a vital presidential swing state, has seen dramatic increases. Florida, says reporter A.J. Vicens, “… ranked near the bottom of the list between 2000-09 in terms of judicial candidate contributions, with nominees raising just $7,500 during that entire period. But that changed in the 2011-12 cycle, when three Supreme Court judges were up for retention votes, with candidate fundraising coming in at more than $1.5 million and independent spending topping $3.1 million.”
For court watchers, it may be interesting that the increased spending is happening in some states with “retention” models, which are believed to decrease political efforts in the judiciary. In those states, voters can only decide whether or not to keep or dismiss a judge – as opposed to choosing between candidates. California, for example, uses a retention system for its high court, although a huge majority of lower court judges run unopposed.
Read the Mother Jones take here: These states are witnessing big-money slugfests—to elect judges
ICE Holds Down Under ‘Trust Act’ Policy
Some new numbers are confirming that law enforcement officials are holding fewer immigrants on behalf of federal immigration authorities. The change comes under policies of the Trust Act that went into place earlier this year and follow court decisions on the “holds.” The Associated Press reports that “… immigration officials say local authorities across the U.S. released thousands of immigrants from jails this year despite efforts to take them into federal custody, including more than 3,000 with previous felony charges or convictions.”
The AP story explains that “… the Trust Act limits the ability of local law enforcement to comply with Immigration and Customs Enforcement requests to hold immigrants longer than their scheduled release date to give ICE time to take them into custody.” Immigration issues are nearly always “civil,” not criminal issues.
California’s San Diego County was among the five counties nationwide with the most federal immigration requests declined, according to newly released ICE data. Santa Clara, Los Angeles, Alameda and Miami-Dade, FL, were the other four. In northern California, the number of detainees transferred to ICE custody fell 53 percent during fiscal year 2014, according to ICE. In the Los Angeles area, the number fell by 15 percent. Similar figures weren’t available for San Diego, but in fiscal year 2013, immigration authorities requested that 3,020 detainees be transferred to ICE custody from San Diego and Imperial counties, reports the AP.
See the story via California public radio here: Immigration Holds Plummet In First Year Of California’s Trust Act
SEC ‘Steering’ Cases To Judges It Appoints
It turns out the Immigration Courts are not the only justice system where prosecutors get to argue in front of judges hired by their side of the justice equation. The Wall Street Journal is reporting that the Security and Exchange Commission (SEC) is “… increasingly steering cases to hearing in front of the agency’s appointed administrative judges. Perhaps not surprisingly, the trend has resulted in a “winning streak” for the federal agency.
The WSJ says that “… thanks in part to enhanced powers granted in the 2010 Dodd-Frank financial-reform bill, the SEC lately has been using the administrative judges for complicated cases, including several involving insider trading.” The insider trading cases were usually taken to federal court, but resulted in some high-profile losses. As with the immigration courts, the civil cases can be handled in ways that criminal cases cannot.
“It’s fair to say it’s the new normal,” says one SEC official in the Journal’s report. Not surprisingly, some critics are arguing that actual courts, not admin courts, should handle such lawsuits.
Read more here: SEC Is Steering More Trials to Judges It Appoints
Even China Looks For Civil Court Reform?
For those wondering about transparency in American courts and the demise of our “rule of law” culture, given the rationing of justice in civil courts, there’s a great report in Foreign Policy magazine about China. It seems reform is afoot, and Fordham University Professor Carl Minzner notes that the Chinese “… have made judicial transparency a priority, with some provincial court authorities target=”_blank”>striving to make all of their verdicts available online. Central authorities have partially revived concepts of judicial professionalism that had gone into eclipse during the later years of Hu Jintao’s administration. One example is the attempt to separate out legal disputes and court cases from the poorly-defined petitioning channels many citizens use in practice to resolve their disputes.”
He also adds that “… authorities are experimenting with insulating judges from interference by local officials. Pilot reforms in six provinces remove control over the funding and appointment of local judges from the hands of county authorities, vesting it instead with provincial courts. This does not mean a repudiation of any core policies. Far from it. Beijing’s commitment to maintaining social stability above all else remains unchanged. But central authorities appear to be gambling that recentralizing control over the court system will help curb social dissatisfaction by combating incestuous relationships between local judges and government officials that are the source of many citizen grievances.”
Compare and contrast here: What Does China Mean By ‘Rule of Law’?