Gavel Grab

Archive for the 'Federal Courts' Category

Congressional Questions Highlight Bias Against Public Defenders

In an illuminating op-ed for the Huffington Post, Nan Aron, President of Alliance for Justice, outlines the importance of professional diversity in the judiciary, and the obstacles to achieving it. Only 14 percent of President Obama’s judicial nominees have been public defenders, and 3.2 percent have worked as civil rights lawyers. The professional discrepancy is blatant when compared with the 41 percent that have been prosecutors and the 72 percent who have worked as corporate attorneys.

Last week, Republican Senator Jeff Sessions’ line of questioning aimed at Paula Xinis highlighted the problem, Aron argues. Xinis, the nominee to the the District Court of Maryland, is a public defender and civil rights lawyer. Sessions’ “line of accusatory questions” suggested that her career path would make her biased to defendants on the bench. “The questions were absurd and unfounded,” Aron says, “but they could not be dismissed as such,” because they represent a much larger problem. Aron explains:

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Fox News Analyst: Politicians’ “Backroom Plots” Targeting Courts

justice-scalesFox News commentator Juan Williams takes aim at political gamesmanship aimed at courts in a blistering column for The Hill, headlined “The GOP’s judicial logjam.”  And despite the headline, he has blame to dish out on all sides.

Noting that the Republican-led Senate’s current rate of confirmation for federal judges puts it on pace to reach the lowest number of such confirmations since 1969,  Williams calls it “just one of the many political backroom plots being played out in the Senate over control of the nation’s courts.”  He writes that the GOP strategy has also emerged in the presidential race, as candidates take aim at a Supreme Court that is seeing dramatically lower approval ratings among Republican voters.   “Between the Senate Republicans’ success at clogging the judicial appointment process and the burst of harsh rhetoric, there is a growing risk of a serious erosion of the public trust in the nation’s judicial system,” Williams adds.

Meanwhile, he remarks that “Obama also is playing the dangerous game”: neglecting thus far to nominate anyone to fill 47 of 63 vacant seats on the federal bench.

“Can the Senate expect better results with a President Hillary Clinton or President Bernie Sanders? How about President Jeb Bush or President Donald Trump? Most likely it will be more of the same,” Williams concludes.

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Efforts to Diversify Federal Bench Gain Ground in NY

The Buffalo News reports a welcome increase in diversity among a pool of finalists for a seat as a magistrate judge on the federal bench in New York state.  The recommendations were made by a justice-scalesmerit selection committee charged with recommending candidates for one of three openings on the bench.  Unlike federal judges holding higher offices, magistrate judges do not require presidential nomination or U.S. Senate confirmation.

Noting that the federal bench in Buffalo is currently all male as well as all white, the paper reports that the five finalists include three women, one of whom is African-American.  Filling the vacant posts within the court system is urgent, the paper adds, noting: “The openings are significant because Buffalo’s federal courts are among the busiest in the nation and there’s a tremendous backlog of cases. One of the consequences is that the median civil case here now takes five years to reach trial.”

Justice at Stake advocates for diversity as an essential element of a fair and impartial court system.

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Editorial: Federal Judicial Nomination Process Only Getting Worse

The U.S. District Court in Idaho is just one of 29 federal jurisdictions to suffer a “judicial emergency” at the hands of a politicized nomination process, a Spokesman-Review editorial explains. Still, Idaho seems to have it relatively easy:

“despite the fact B. Lynn Winmill is the only full-time judge in the U.S. District Court for Idaho, which triggered the emergency declaration, the conference’s calculation of Idaho caseload per judge, at 451, is low compared to more than 1,200 for one Texas court, and 1,000 at another in California.”

The situation in federal courts has become increasingly dire over the last few decades. Both parties share the blame for the increased partisanship, and the editorial finds no signs of improvement. “The Senate has confirmed all of four District Court nominees this year, and one Circuit Court judge,” and the editorial contends President Obama has little motivation to even make a nomination for the vacant Idaho seat without some other confirmations in return.

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Federal Judge’s Recusal at Center of Lawsuit Against Hospital

There are more legal ripples involving a federal appeals court judge who, when he was the focus of an investigation by the Justice Department’s ethics unit several years ago, established a legal defense fund (see Gavel Grab).

The National Law Journal reports (in an article available by searching Google), “Judge Bybee Recusal at Center of Doctor’s Suit Against Hospital.” It says a doctor who is suing the hospital where he formerly practiced contends that Judge Jay Bybee of the Ninth U.S. Circuit Court of Appeals influenced a court panel ruling adverse to the doctor even though Bybee, after initially declining a request by the doctor to recuse from the panel in the case, later did step aside. Read more

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‘Judicial Emergency’ Declared in Federal Courts in New Jersey

The federal district courts in New Jersey are overloaded with cases, and the Judicial Conference of the United States has declared a “judicial emergency” exists there, reported, while pointing to inaction on several judicial nominations in the U.S. Senate.

Three nominees are awaiting confirmation, and one of New Jersey’s two Democratic senators, Robert Menendez, has accused Senate Republicans of “slow-walking” the appointments. Senate Republicans have rejected this kind of criticism, saying they are giving fair treatment to President Obama’s nominees.

Since the start of 2015, four district judges have retired or taken part-time status, out of 17 U.S. district judges in New Jersey. State residents face frustrations and a logjam in using the federal courts, much as they have until recently found delays in state courts too, the article said: “Until recently, attempts to fill vacancies on the bench within the state’s own system of courts were stymied as Governor Christie battled with Democratic legislators over the fate of nominees.”

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Scholar’s Concern: When Politicians Browbeat Our Courts


Sen. Ted Cruz, a Republican candidate for president, recently introduced a bill to bar federal courts from ruling on state marriage laws. In Huffington Post, a legal scholar calls the measure “bullying” and akin to declaring “war on the independent judiciary.”

Cruz introduced in April his Protect Marriage from the Courts Act of 2015. “Judges have taken an unprecedented activist role to strike down state marriage laws,” he said at the time.  But Law Professor Alex Glashausser of Washburn University in Topeka, Ks. writes at Huffington Post that Cruz’s approach is misguided, and like court defunding legislation recently signed into law in Kansas (see Gavel Grab), a kind of court bashing:

“This legislative attempt to restrain the judicial branch violates the separation-of-powers doctrine, and the invitation to state judges to ignore a Supreme Court decision makes a hash of the constitutional enshrinement of federal law as ‘the supreme Law of the Land.'”

“If the political branches wield necessities like jurisdiction and budgets as weapons for browbeating courts into submission, the damage to judicial independence will in turn erode the rule of law.”

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Opposing Sides Don’t Seek Recusal of Judge in Hastert Case

Both the prosecution and defense involved in former House Speaker Dennis Hastert’s criminal proceedings have given notice they do not object to U.S. District Judge Thomas Durkin continuing to preside over the case.

Judge Durkin had openly discussed issues that might lead a party to seek his recusal when he presided over Hastert’s arraignment earlier this week (see Gavel Grab). They included his donating, as a lawyer in private practice, $1,500 to Hastert congressional campaigns and his having worked in private practice with Hastert’s son. The judge said he was confident he could handle the case impartially.

According to Politico, Judge Durkin will continue to preside over the proceedings against Hastert.

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Judge in Hastert Case Vows Impartiality, Yet May Recuse

Judge Durkin

Judge Durkin

The federal district court judge conducting former House Speaker Dennis Hastert’s arraignment, who as a private lawyer had donated $1,500 to Hastert campaigns, openly addressed issues about fair and impartial courts on Tuesday.

Judge Thomas Durkin, according to Politico, “announced at the hearing that he was provisionally recusing himself due to several personal and family ties to Hastert, Hastert’s relatives and the Republican Party, as well as lawyers on both the defense and prosecution teams.” He also said that if both sides concurred, his recusal could be waived. The judge said he was confident he could be impartial.

The Washington Post reported on the proceeding in a somewhat different manner, saying Judge Durkin “acknowledged that the potential appearance of a conflict of interest created grounds for disqualification. Durkin gave Hastert and prosecutors until Thursday to review his disclosures and determine whether to waive his offer to step aside.”

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In-Depth Report: A U.S. Judge Struggles With Mandatory Minimums

With debate mounting in Washington over changing mandatory minimum sentencing laws, Senate Judiciary Chairman Charles Grassley of Iowa remains one of their strong defenders. But a federal judge seated in Iowa has variously described his own sentencing under the laws as “unjust and ineffective,” “gut-wrenching,” and leading to “prisons filled, families divided, communities devastated.”

The Washington Post has published a lengthy article featuring U.S. District Judge Mark Bennett of Sioux City and his struggle to carry out his judicial oath to administer justice when he strongly believes that hewing to the mandatory minimum sentencing laws often result in a miscarriage of justice instead.

“My hands are tied on your sentence,” the judge told one defendant. “I’m sorry. This isn’t up to me.” He has faced the scenario scores of times, according to the Post: “For more than two decades as a federal judge, Bennett had often viewed his job as less about presiding than abiding by dozens of mandatory minimum sentences established by Congress in the late 1980s for federal offenses.” Read more

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