Articles Posted in Judicial Selection

Here is a link to an article in today’s Daily Record about the state’s Judicial Compensation Commission’s recommendation that Maryland’s judges should be given a raise. According to the article, the judiciary last received a raise in 2008. In 2009, the Commission recommended a $39,858 raise to be phased in over four years, but the plan was never put into law by the legislature.

All of Maryland’s judges are paid six-figure salaries. It’s an easy reaction to dismiss the Commission’s recommendation as an attempt by an already well-paid judiciary to get even more from the state’s coffers. This is particularly true when a recommendation like this is made in a time of public and private belt-tightening due to a down economy. Certainly, many will make that argument.

Good benefits, paid holidays, and strong retirement plans have historically been some of the draws of public employment as opposed to working in the private sector. The trade-off is generally making a lesser salary than would be earned in a comparable position in the private sector. As the article points out, most judges that came to the bench from a private legal practice took a pay cut to do so. But on the other hand, many judges come to the bench from other government positions or from private practice situations that may have been less lucrative than some others. Presumably, there are judges for whom taking the bench entails a pay raise.

I mean, seriously. Even that hippie rag The New York Times recognizes this is a problem.

Nobody seriously contends that President Obama’s judicial nominees are any less qualified than those of the prior office holder, George W. Bush. Nonetheless, the Times’ editorial states that at a comparable point in time 61.4% of Bush nominees were confirmed as opposed to less than 50% of President Obama’s nominees.

Many of these nominees have already been approved once or even twice by the Senate Judiciary Committe. One of these is University of California law professor Godwin Liu, who has even been endorsed by Bill Clinton adversary Kenneth Starr for his “independence and openness to diverse viewpoints.”

Here is an article from the AP discussing the extreme problems President Obama has had in getting federal judicial nominees confirmed.

There are 854 federal judgeships. 102 of them are vacant. 47 of the vacancies have been labeled “emergencies” by the federal judiciary due to heavy caseloads. Although the Obama administration got off to a slow start, there are now 45 nominations awaiting a vote, with two of the nominees having waited for 13 months.

The article places primary blame for this on “[a] determined Republican stall campaign,” but also points out that Senate Majority leader Harry Reid (a Nevada Democrat), “has been unwilling to set aside the considerable time needed to force votes.”

Occasionally U.S. Supreme Court Justices find the need to recuse themselves from hearing a particular case. Generally this is because of a conflict of interest. The classic example is where a Justice owns stock in a company with a case before the Court. In the near future, we will see Justice Kagan recuse herself from hearing several cases that she worked on as Solicitor General before her nomination.

This has a strange end result. Most appellate courts have an odd number of judges. The Supreme Court has nine, the Court of Appeals of Maryland has seven. The reason for this is obvious- to prevent a tie.

The potential problem is that when the Supreme Court loses a member to recusal, the case is heard by an eight-member court. This raises the possibility of a 4-4 tie. This article from the Washington Post discusses a plan to fix this potential problem. Senator Patrick Leahy has proposed allowing retires justices to be recalled for particular cases to prevent a tie, and also to promote recusal in light of an appearance of a conflict. Retired Justices occasionally sit on every federal court we have, except for the Supreme Court.

U.S. Supreme Court Justice Anonin Scalia gave a speech in Bozeman, Montana on Wednesday, in which he stated that if the vote were held today, he doubts that he would get the 60 votes needed for confirmation.

Strangely, he seemed to be implying that would have been a bad result.
He blames the politicized nature of today’s confirmation process on some judges’ reliance on the “living Constitution” doctrine. Justice Scalia interprets the Constitution with the aid of an 1848 Noah Webster dictionary. Because apparently, none of the changes in the last 150 years are relevant to interpreting the document.

Judge Judy is pulling down $15 million a year for a show that lasts 22 minutes a day, exclusive of commericals.

I hate Judge Judy. People see her show and think it bears a resemblance to real court cases and real lawsuits, which it does not. And her behavior is flat-out unaceptable for a real judge.

Ron Miller and I have a tendency to get off-topic when we are collaborating on a case or project. One thing we have been talking about recently is judicial selection, spurred on by the recent nomination of Elena Kagan to the U.S. Supreme Court. Ron sees a lot more benefit in putting Harvard/Yale intellectuals on the Court than I do. His theory is that you are more likely to hit on a good candidate from that background that you are from say, UB Law grads. I know he will not think I did his viewpoint justice in the preceding sentence, maybe he will elaborate in his blog.

Related Information

The Baltimore Sun reports that the Senate Judiciary Committee has approved President Obama’s two most recent judicial appointments for Maryland. The nominees are Ellen L. Hollander, and James K. Bredar. This means that the next step in the confirmation process is for the nominations to proceed to the Senate floor for a confirmation vote by the full U.S. Senate.

Hollander has been a judge on the Court of Special Appeals of Maryland since 1994. For out-of-state readers, this is Maryland’s intermediate appellate court where appeals of right are heard by three-judge panels. It is a court of record, where opinions may published if they touch upon issues of broad significance. I have argued appeals before Judge Hollander. She was bright and well-prepared, and has a good reputation among the bar generally.

Bredar has been a United States Magistrate Judge since 1998. A magistrate is basically “judge light.” Typically they rule over pre-trial motions, settlement conferences, and discovery disputes and issue opinions that are then adopted or approved by Article III (confirmed by the Senate) judges. Magistrates may also preside over trials by the consent of the parties. Judge Bredar has the reputation of being a good trial judge and of having skill in mediating disputes between the parties to litigation.