Changing the American legal system

[Primula Baggins]

Hi, Idylle! I'm glad you're here.

[nerdanel]

So, to continue the conversation in this thread , I wanted to talk about an important issue: whether judges should be directly elected or voted out of office. In my view, the answer is a resounding no. I am a strong supporter of the American federal system, which allows voters direct input into the selection of two branches of government, but insulates the third. Federal judges are selected in a political confirmation process, but once confirmed cannot be removed (nor their salaries decreased) unless they commit misconduct that warrants impeachment.

Two sets of US state judicial elections this week, in my view, illustrate why the federal system is the preferable model. Being equal opportunity, I shall share with you an illustration of right-wing bad behavior, followed by an illustration of left-wing bad behavior. I find both equally repugnant.

The former comes from Iowa, where conservatives outraged by the state's judicially-catalyzed legalization of same-sex marriage voted out of office three state supreme court judges who voted in favor of that decision. I am deeply disappointed by this decision: judges are charged with interpreting the state constitution, and should not be removed simply for reaching a result that conservatives prejudiced against gay rights do not like.

Nor should judges be removed for failing to reach a preferred liberal result with respect to gay rights. To that end, I put my money where my mouth is, and voted this week that California Supreme Court Justice Ming Chin - who voted against same-sex marriage in the court's landmark 2008 decision, and again in 2009 - should continue to serve. I did so because I see Justice Chin as an able jurist who has not committed any misconduct deserving of removal. He reached one decision that I think is legally and morally incorrect, but my view is that that should not justify his removal (because in my preferred legal setup, we would not be voting on whether he could continue to serve at all). To be sure, I was much happier to vote that Justice Carlos Moreno - who twice voted for same-sex marriage (the second time as the lone vote) - could continue to serve. But both men are able justices and will deservedly continue their public service on the court (neither was removed).

Finally, I promised some liberal bad behavior regarding judicial elections, furnished via my beloved city of San Francisco. State Superior Court Judge Richard Ulmer is a white, male former Republican (now independent) judge who by all accounts has done a solid job during his time on the bench. Challenger Michael Nava, backed by a significant portion of the electorate, decided to challenge for his seat solely because Ulmer (in Nava's view) did not have the right demographic attributes. Nava is a gay Latino Democrat, and those attributes were a majority of his platform. It was accepted nearly unanimously that Ulmer was the more qualified, experienced candidate, but Nava somehow viewed his ethnicity, his homosexuality, and/or his political affiliation as making him worthier to serve as a judge in San Francisco. In my view, this is reprehensible - at least as egregious as the Iowans who ousted three judges for ruling in favor of the civil rights of a group whom they dislike. Fortunately, Ulmer won the election, but with a strikingly small 52-48 margin. The entire San Francisco bench rallied around him - male and female, gay and straight, Republican and Democrat - as well they should have. To me, this election showcased the very worst in San Francisco identity politics, and I am ashamed that 48 percent of the San Francisco electorate endorsed Nava's behavior.

See here for a pro-Ulmer op-ed prior to the election from the SF Chronicle: http://articles.sfgate.com/2010-10-17/o ... rior-court
Here is a letter from the LGBT Bay Area Reporter discussing Nava's defeat: http://www.ebar.com/news/article.php?se ... ticle=5205

From Des Moines to the Castro, this election makes the case, in my view, for judicial independence from the political process. Judges should not be subservient to the tyranny of the majority, as a significant part of their role is to safeguard minorities from that tyranny. Nor should judges be subject to removal because a minority prefers people of a different race or sexual orientation who are "like them". (The latter concern is correctly addressed through the judicial appointments process; and I think that in San Francisco at least, the legitimacy of the demand for proportionate minority representation on the bench is viewed as beyond question.)

[axordil]

nel--

I agree on all points.

It's not only the tyranny of the local majority that's a potential issue now, either, thanks to Citizens Fecking United. Piss off anyone, anywhere, who's rich and powerful--and you paint a bullseye on yourself as large, anonymously funded groups move in, which they did in Iowa.

However--without review elections, what apolitical mechanism would you propose for discipline when judges go bad?

[Túrin Turambar]

Two sets of US state judicial elections this week, in my view, illustrate why the federal system is the preferable model.

To begin with an asinine nitpick, the three-way separation of powers is not part of America's federal character. Having a federal system merely says that the country is composed of a union of states and provinces with governments in their own right. Canada, Australia, Germany and India are all federal countries that don't share America's system of government.

To make a more worthwhile contribution, though, I agree that judges shouldn't be elected. That said, I also think that they should have far less influence over policy than they do in the U.S., so maybe it's a necessary safeguard. Still, the Federal Supreme Court has ultimate power over all other courts on constitutional matters, and it's judges are not elected.

[Voronwë the Faithful]

To begin with an asinine nitpick, the three-way separation of powers is not part of America's federal character. Having a federal system merely says that the country is composed of a union of states and provinces with governments in their own right. Canada, Australia, Germany and India are all federal countries that don't share America's system of government.

nel never said that the three-way separation of powers was part of America's federal character. The point that she was making was that she was distinguishing between the U.S. federal judiaciary system (in which judges are not elected) and that of some of the states, in which judges are elected.

Or at least so I understood her to be saying.

[nerdanel]

Two drive-by clarifications, for now:

1. To be clear, I understand that the three-way separation of powers is not mandated by the word federal. When I said, "[T]he federal system is the preferable model," what I meant was, "The way that our federal system is structured is the preferable model" - not that a separation-of-powers-based structure derives automatically from the federal character of the system. (This misunderstanding reminds me of when I wrote something about the UK House of Lords/Supreme Court and referred to it as the "high court" in lower-case - as we would colloquially call our (US) Supreme Court - and Aravar was confused whether or not I was referring to the UK High Court, which isn't particularly high on the totem pole at all )

2 - You're right that SCOTUS has final decision-making ability over constitutional matters and its justices are not elected. However, there are several important points to be noted here:

a. The Supreme Court grants cert in only 8-12 state cases per year, a fraction of its already-small docket. For all practical intents and purposes, the state supreme court will be the final arbiter of federal constitutional issues in > 99 percent of the cases before it.

b. Ordinarily, the Supreme Court will only grant certiorari in a state case where (a) there is a conflict on an important federal question between a federal court of appeals and a state supreme court; or (b) between two state supreme courts on an important federal question.

c. There is a doctrine that could be called the "independent and adequate state ground" doctrine: if a state court decision can be justified based on an independent state-law ground, thee Supreme Court will not review the decision because it would not change the outcome of the case (though whether or not an IASG exists is itself a federal question). Put differently, if a state supreme court gives alternative/distinct federal and state holdings for its reasoning, or issues even extended dicta on a federal constitutional question, the Supreme Court will not review the decision. This gives savvy state court judges-of-last-resort, to whom both federal and state questions have been presented, the opportunity to "immunize" their opinions from Supreme Court review. The Court justifies this based on its preference against advisory opinions, the doctrine of constitutional avoidance, limited resources, and federalism. Of course, none of these reasons are mandatory jurisdictional bars, but in practical terms, they decrease the availability of Supreme Court review of state decisions.

Beyond these considerations, the decisions of the Iowa and California Supreme Courts on same-sex marriage were unreviewable because they only posed state constitutional questions. To the extent a minority wants to claim protection from discrimination based solely on state law, the remote possibility of Supreme Court review turns to nonexistent.

Ax: it's not clear to me that a mechanism beyond impeachment is needed. Are there specific judges within the federal system whom you believe are unimpeachable but should be removed nonetheless? If so, what conduct have they committed?

[axordil]

Specific judges? No, I don't track them they way you sort of have to. But I would say those with an ongoing reversal rate higher than 50% (I call it the Carswell standard ) should be suspect on grounds of insufficient mastery of the law.

[Holbytla]

Federal judges are selected in a political confirmation process, but once confirmed cannot be removed (nor their salaries decreased) unless they commit misconduct that warrants impeachment.

Why should anyone be afforded that security?
What should judges be virtually untouchable and how does that make them better judges?

[Voronwë the Faithful]

Because when judges are subject to the whims of the electoric, they tend to get removed not because they are incompetent but because someone with a lot of power, money and influence doesn't like them.

Edited to add: As former Justice Sandra Day O'Connor pointed out, that is one of the most insidious results of the Citizen United decision.

[River]

Well, for one thing, appointing judges for life leaves them unburdened by popular opinion. Given that, in the US, it is in the power of judges to strike down laws as unconstitutional regardless of how much people might like those laws, I think it is very important, if not critical, that they be able to do their jobs without the dangling threat of losing their jobs because their decision was unpopular. Just because the majority likes it doesn't make it right and, unlike politicians, it is not a judge's job to please.

[Griffon64]

Yep. Unlike politicians, who will/have to bend to the whim of the majority, I prefer judges to actually be afforded the opportunity to get it right. Right in this case defined as, in compliance with law/constitution/that kind of thing. I think it is important to have it this way.

[nerdanel]

But I would say those with an ongoing reversal rate higher than 50% (I call it the Carswell standard ) should be suspect on grounds of insufficient mastery of the law.

Within the federal system, I haven't heard about any trial court judges getting reversed by the court of appeals at a rate greater than 50 percent. The closest candidate might be Judge Manny Real of the Central District of California, notorious in the western federal system (Google him for some wild stories about judicial misbehavior*). And even then, I'm not sure that his actual reversal rate is 50 percent.

As for court of appeals judges being reversed by the Supreme Court, I'm not sure what the actual numbers are. There are a group of 9th Circuit judges who are statistically likelier than average to have participated in decisions that are reversed by the Supreme Court. Judge Stephen Reinhardt is probably the best known (there was a joke going around lawyers' blogs a while ago that the Supreme Court is now requiring lawyers petitioning for cert from one of his decisions to use a picture of his face as the cover page, for easiest processing of the cert grant.) It's entirely possible (though I can't represent that it is *true*) that the Supreme Court reverses Judge Reinhardt's decisions when they grant cert more than 50 percent of the time. However, even his most vitriolic opponents do not deny Judge Reinhardt's undeniable mastery of the law; if anything, they feel he is too devilishly clever (someone I know who is not a Judge Reinhardt devotee explains, "You read his opinion, and you're nodding along the whole time, because it seems a perfectly sensible interpretation of the law - and then you get to the end, nod your head at the conclusion, and say, "'WAIT. What did I just agree to?'") Most of the other judges I know of who are likely to be reversed by the Supreme Court are similarly capable: they just have very different interpretations of the law on certain discrete issues than does the high court. For Judge Reinhardt, these issues include the death penalty and individual civil rights issues (e.g. 1983 lawsuits).

There is a point of bona fide disagreement among lower appellate judges what their role should be. Some believe that their task is to decide the case as they deduce that the Supreme Court would - sometimes even consulting sources other than directly binding Supreme Court cases to deduce how the Court might be likely to decide a case. Others believe that their task is to decide the case as they believe is right, taking into account all binding precedent, and letting the Supreme Court sort out if a different result is warranted. This, too, can lead to differences in reversal rate - among perfectly qualified judges acting in good faith.

You should bear in mind that, even of the judges who are more often reversed by the Supreme Court, they are still reversed on a very small number of the overall cases they've decided that year - probably less than 1 percent. This is a function of their judicial competence, the fact that reasonable (legally-trained) minds cannot disagree on the correct result in a majority of the cases that come before the federal courts of appeals, and the fact that the Supreme Court has limited review ability. Bear in mind that when the Supreme Court does grant certiorari, they reverse the lower courts at a rate of 70 percent. Also, consider that the Supreme Court is particularly likely to grant cert where the circuits have split, meaning that, again, (probably reasonable) judicial minds have disagreed.

So I'm not sure that a 50 percent reversal rate would be a viable measure at the court of appeals level (if indeed the Supreme Court was literally reversing 50 percent of the hundreds or more decisions that an appellate judge made in a year, I think that person would be a candidate for impeachment - and would attract widespread public condemnation). On the other hand, examining whether the Supreme Court reverses a judge in 50 percent of the cases in which they grant cert is not a good test. Imagine that they grant cert in two cases per year of a particular judge, and reverse one. Even if this was done over a long period of time, a reversal of one case a year doesn't say anything at all over the quality of the judge (same for granting four, reversing two, or granting six, reversing three - these are hard cases, and on most of them, reasonable minds will disagree). Also, bear in mind that the Supreme Court itself will often split badly in reversing an appeals panel. It hardly seems fair to think poorly of a lower court judge who gets reversed 5-4, 6-3, or via a fractured plurality, even multiple times a year. (I will concede, however, that if a judge is routinely and repeatedly getting reversed 9-0 by the Supreme Court - or the Supreme Court has to direct a lower court to comply 3-4 times, as rarely happens - perhaps this warrants closer attention.)

At the district court level, I think Harrold Carswell's situation was exceptional. It's not something I've encountered personally, so far - caveat for Manny Real's situation; now I want to know what his reversal rate is.


*Actually, now that I think about it, he's the one answer I know of to the question I asked you: he would probably be a good candidate for removal for judicial misbehavior short of impeachment, and he has faced disciplinary investigations before.

[Aravar]

(This misunderstanding reminds me of when I wrote something about the UK House of Lords/Supreme Court and referred to it as the "high court" in lower-case - as we would colloquially call our (US) Supreme Court - and Aravar was confused whether or not I was referring to the UK High Court, which isn't particularly high on the totem pole at all )

As an aside the High Court is, in practice, quite high on the totem pole. Most actual litigation is conducted in the County Courts. It just won't seem very high up iif you're studying, where most of the decisions you'll read are probably Court of Appeal or higher.

Because High Court Judges have appellate jursidction in matters such as insolvency there are areas where their decisons are of great weight.

As to the main subject of discussion, over here High Court Judges and above are appointed and can only be removed by an address to the Crown by both Houses of Parliament. Although this provision is now contined in the Supreme (now Senior) Court Act 1981 it dates back to the Act of Settlement of 1701.

While this appears to give massive political control to Parliament, IIRC the provison has never actually been used, although now and again some judges have retired after some faux pas.

[axordil]

nel--

I think I would count cases where SCOTUS won't grant cert as a de facto upholding of a appeals court decision, at least for purposes of a judge's "batting average."

I'm glad to hear Carswell's record was exceptional for the district courts. It SHOULD be, no?