Judge bashing in the land of the free … Politicians turn on the judges as courts address gerrymanders … Poor quality of Trump’s judicial nominees … Selection process breaks down … Nick Bonyhady reports
Australia experiences periodic political outbursts against the judiciary from the likes of demagogues like Peter Dutton and easily bidden ministers like the “Yarra Three”. However, the gold standard of judicial sledging by the legislative and executive arms of government can be found in the US of A.
The American judicial system has long been flawed. Judicial elections force candidates to run like politicians, accepting money from lawyers, insurance companies and unions in a fashion that several academic studies suggest ultimately influences judges’ decisions at trial.
The money raised from these sources in turn pays for outrageous attack ads. One 2014 ad spruiked Michael Oster, a former county president of the Young Republicans and candidate for an Ohio county judgeship, as the “only candidate for judge who has put our worst criminals to death row”.
Another ad from 2008 claimed that Louis Butler, the only black judge on Wisconsin’s Supreme Court, had “found a loophole” to allow a career criminal to “molest another child”. The claim that Butler had found a loophole was highly misleading. In reality, as a barrister he had argued correctly that a prior judge had failed to apply proper procedure. Nonetheless, Mike Gableman, the white judge who ran the ad, won his election, as did Michael Oster in Ohio.
Despite the alarming nature of these judicial attack ads, the United States’ court system is supposed to have some inbuilt protections.
Most state judges run unopposed, which saves them from the ugly spectacle of judicial races, while federal judges are appointed by the president, subject to senate confirmation.
However, the well-established processes in the senate committee have largely broken down. During Barack Obama’s presidency, Republicans began to refuse to return the blue slips when they disliked a nominee for partisan reasons. Democratic Chairman Patrick Leahy, determined to uphold tradition, then refused to bring those nominees on for a hearing.
In one of the most egregious cases, a judicial position in North Carolina was held open for the entirety of Obama’s term. A similar fate befell Merrick Garland, the moderate Republican nominated by President Obama to the Supreme Court, who was refused a hearing by senate Republicans.
Under President Trump, the senate then confirmed arch-conservative Justice Neil Gorsuch to the court. Republicans have also begun to ignore the blue slips of Democrats on the committee and disproportionately appointed judges to red states, where the senators are likely to return positive slips.
Some dubious confirmations have occurred as a result. Gregory Katsas, a former deputy White House counsel for President Trump, now sits on the US Court of Appeal for the District of Colombia. While in the White House, Katsas worked on the Trump Administration’s response to the Mueller investigation – a matter that may well come before his court.
Ryan Holte, a mid-30s Republican ideologue, has been confirmed by the senate committee for a position on the Court of Federal Claims, which has jurisdiction over financial claims against the US government. Holte has never tried a case.
As an appointee Holte was not subject to an ABA rating, because the claims court is exempt from the ABA’s rating process.
The ABA’s efforts to remain non-partisan has hardly helped it retain credibility with Republicans. Echoing a widely held sentiment in the past, in December last year, Republican Senator Ben Sasse described the organisation as “a liberal organisation that has publicly and consistently advocated for left-of-center positions for more than two decades now”.
At the same time the ABA has been something of a damp squib when it comes to Trump. In 2016, The New York Times revealed that the ABA’s media law committee had commissioned a report on Donald Trump’s extensive history of litigation that concluded he was a “libel bully” who concocted meritless suits against his opponents.
It also noted that he had never won in court. However, the Times also reported that “the bar association refused to publish the report, citing the risk of the ABA being sued by Mr Trump”. For its part, the ABA said that it did not object to the report itself, but did have a problem with its use of partisan language to criticise Trump, who was already a candidate for president. The report was later published by the Media Law Resource Centre.
Some of Trump’s blatantly alarming nominees have not made it onto the court, including Brett Talley who is married to the White House counsel’s chief of staff, who was nominated by Trump to the Federal District Court for Alabama.
Slate reported that Talley had anonymously defended the KKK online. He became the third nominee since 1989 to receive an ABA rating of “not qualified” and the senate judiciary committee subsequently recommended to the White House that Talley’s nomination be withdrawn.
In December 2017, a video of the confirmation hearings of Matthew Spencer Petersen, who Trump nominated to the District Court of Columbia, went viral. In the video, Republican Senator John Kennedy asks Petersen basic legal questions, which the nominee, who had never tried a case, is repeatedly unable to answer. Demonstrating the low threshold set by the ABA, Petersen had received a “qualified” rating. Petersen also withdrew.
Yet as bad as things are in the Washington, they are worse in the states. Gerrymander cases in North Carolina and Pennsylvania have brought judges and lawmakers into open conflict.
“While Democratic candidates for the state’s 18 US House seats tend to capture about half of the statewide popular vote, that’s translated into just five of the 18 seats in each election held since the 2011 redistricting.”
As a result, in January this year the Pennsylvania Supreme Court struck down the electoral map as an instance of partisan gerrymandering. The Republican state legislature was invited to submit a new map, which it did, but it was rejected by the Democratic governor.
Faced with such legislative intransigence, the court drew the new map. The political analysis site Five Thirty Eight suggests says the result will be six safe Democratic seats and eight safe Republican seats, with the rest being competitive – a far fairer result than the one it replaced.
“Threats of impeachment directed against justices because of their decision in a particular case are an attack upon an independent judiciary, which is an essential component of our constitutional plan of government.”
The impeachment effort, which lacks the support of the Republican leadership in the state, is unlikely to succeed.
A similar process occurred in North Carolina. Republican leaders of the North Carolina General Assembly made a statement on February 7, 2018 saying that the state supreme court’s “decision to legislate from the bench will have profound consequences, and they should immediately reconvene their panel and reverse their order.”
Representative Justin Burr is leading an effort on behalf of his party in North Carolina to redistrict judicial electorates. North Carolina Policy Watch, a local progressive think tank, notes that in the new proposals 16 registered Democratic judges will have their electorates collapsed into one of their neighbours, whereas the same will happen to just five Republicans.
The same thing will happen to 39 percent of African American superior court judges – far more than their white counterparts.
“At the federal level, an astounding 92 percent of President Donald Trump’s court nominees have been white. Of Trump’s 87 judicial picks, just one is black and one is Latino – the worst presidential record on judicial diversity since Ronald Reagan.”
Trump and the Republican-controlled senate have been confirming those picks at a record rate – four times as fast as the Obama administration.
For all the furore, there is an end in sight. The US Supreme Court has taken on two gerrymander cases, one from Wisconsin and another from Maryland. In previous years, the court has been loath to rule on such cases it feared that it lacked a standard to hold state legislatures to, but its hand has been forced by state cases.