June 30th, 2018

More SCOTUS; More Tissues

Back in 2009 when Justice David Souter retired, I wrote that I would love to see SCOTUS judges who had actually practiced law with living, breathing, broken humans sitting, at some point, in their offices.

This week, with Justice Kennedy’s announced retirement, Trump said he wanted yet another Harvard or Yale judge. As if we didn’t already have a bench stuffed with them.

Diversity takes many forms. Sometimes it is has to to do with gender, race, religion, etc. But there is another kind of diversity, and that goes with what we actually have done with our lives.

Hopefully, we won’t see yet another person who has spent a lifetime on the bench or in academia (or combined), and one that has lived a life (from the law-related perspective) with diversified experience.

My 2009 post regarding the filling of the Souter’s seat (by Judge Sotomayor) is re-printed here in full:


The SCOTUS Nominee and The Tissue Box Test

I want to talk about tissues and the law and Supreme Court nominees. As the legal blogosphere and political Washington buzz about the judicial philosophy President Obama will be looking for in a judge to replace Justice David Souter — and what underrepresented social niche the nominee will come from, be it female, black, Hispanic, gay, etc. — what I want to know is if the nominee has ever had a box of tissues on his or her desk. For clients.

I want a nominee that knows what it’s like to have someone cry in their office. I want a nominee that has been there when someone tells them that their mother/father/brother/daughter was arrested/injured/killed and that they are desperate for help.

I want a nominee to know what it’s like to see real people — not political philosophies or corporate giants trying to add a few cents per share to their earnings — in their office in distress, and to represent them. I want a nominee that has experienced being the last, best hope for a downtrodden individual and the problem brought in the door. I want someone who knows what it’s like to be the underdog against corporate or government interests.

I want a nominee to know what it’s like to make the rent. To pay an employee. From their own pocket and not someone else’s. To answer the phones. To argue the case. To battle against deception. To actually practice law in the real world instead of in the ivory tower under the protective wings of others.

Our court is stuffed with Harvard and Yale law school grads, most of whom I think never actually tried a case for a private client, financed a case, or fought for an individual before ascending to the lofty heights of the appellate bench.

Last week Norm Pattis wrote on why we need a trial lawyer on the Supreme Court.He said:

A trial lawyer knows about raw human need and the law’s rough edges. It is a trial lawyer’s job to find the intersection of terror, fear and tears with the high doctrine and principle of the law. Not one member of the current court has ever sat with a client and his family during jury deliberations to discuss what will become of a family should the client be sent to prison.

We don’t have anything resembling a cross-section of society on the court. We don’t have people who look at broken bodies up front and personal in their offices. That’s why we have the tissue box. It isn’t to wipe our own noses.

At Simple Justice, Scott Greenfield picked up the Pattis theme with this about the birth of the trench lawyer movement:

In the trenches, we experience life, along with the huddled masses who care far less about whether a judge is a constructionist or originalist or texturalist. We know the consequences of decisions, together with the consequences of delayed decisions. Our view is ground level, and our understanding of how badly the law can hurt comes from holding the hands of the maimed. We know that people lie, cheat and steal, but we know that isn’t limited to the defendants. We have philosophies, but we live realities.

Perhaps life’s experience representing individuals will mean something different to the practitioner-judge than the philosopher-judge when the government strips away rights. Or corporations do a cost-benefit analysis and determine a few deaths aren’t so bad for their product because the profits will still exceed the legal payouts.

If Obama wants a judge who “understands that justice isn’t about some abstract legal theory or footnote in a casebook” then he better find a lawyer who once had that tissue box on the desk for the clients.
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November 13th, 2017

Subverting the Constitution

Brett J. Talley

The news, if you care about the courts and the constitution, was pretty awful last week. The lede in this LA Times story was the the Senate Judiciary Committee rubber-stamping a grossly unqualified and incompetent judicial nominee.

How do I know he was grossly unqualified and incompetent? Because he has just three years of actual practice  and has never tried a case:

Brett J. Talley, President Trump’s nominee to be a federal judge in Alabama, has never tried a case, was unanimously rated “not qualified” by the American Bar Assn.’s judicial rating committee, has practiced law for only three years and, as a blogger last year, displayed a degree of partisanship unusual for a judicial nominee, denouncing “Hillary Rotten Clinton” and pledging support for the National Rifle Assn.

On Thursday, the Senate Judiciary Committee, on a party-line vote, approved him for a lifetime appointment to the federal bench.

And so while various politicos think and talk in terms of grooming judges for future higher judgeship where they can become activist in shaping policy and interpreting laws and the constitution in a way favorable to their political ideology, those of us in the trenches are forced to practice law in front of them. But this potential judge has never brought a case or even argued a motion:

“He’s practiced law for less than three years and never argued a motion, let alone brought a case. This is the least amount of experience I’ve seen in a judicial nominee,” said Kristine Lucius, executive vice president of the Leadership Conference on Civil and Human Rights.

Once upon a time, a judicial appointment was the capstone of a career spent in the law, with new judges bringing the wisdom of their decades of experience. Now it is turning into a political training ground for clueless baby lawyers.

But it is not enough to rail against Trump for doing this, because Trump only nominates. And nominating/appointing the most competent people to positions has not exactly been the hallmark of his administration.

Talley can only take the bench if the Senate says so. So far, the Judiciary Committee, which should know better than to sabotage the Constitution, simply bent over for Trump and took it. It is inconceivable that any person on that committee believes Talley has the competence for being a judge.

So what can go wrong? The people that will suffer are litigants who are force to come before him if the Senate continues the Judiciary Committee’s rubber stamping.

And if you think this will auger well for those of a conservative bent, under the theory that Talley is merely a political hack who will do their bidding, then I think you’re mistaken. Bad rulings lead to appeals. And delays. This is money and time. Getting a favorable ruling in the trial court only to be reversed on appeal is not a benefit.

There are many lawyers who, if a judge is about to commit reversible error, will stop the judge even if the ruling would favor them at trial. Because a tainted verdict is quite often a very bad problem. (Others, of course, will gleefully grab the bad decision and just worry about the ramifications later.)

The Senators know what they should do. The question is will they have the courage? Will they show respect for our Constitution? Will they allow incompetence to take the bench?

We will find out soon.

Addendum: I wrote this in 2009 about what I want to see in a SCOTUS nominee, but much of it holds true for lower level federal judges as well.  I want to see experience:  The SCOTUS Nominee and The Tissue Box Test

Elsewhere:

He has never tried a case, but Trump wants to make him judge for life (Phillips @ The Washington Post)

Brett Talley, a 36-year-old lawyer whom President Trump nominated for a lifetime federal judgeship, has practiced law for only three years and has yet to try a case….

…Talley’s lack of experience in the courtroom and his partisan commentaries, however, were repeatedly questioned by Democrats on the Judiciary Committee.

“Your overall qualifications and preparation for becoming a lifetime-appointed federal judge are a concern to me,” Sen. Dianne Feinstein (D-Calif.) said, according to her written questions to Talley.

Sen. Richard J. Durbin (D-Ill.) did not mince words, asking questions like: “How can you claim to be qualified for a lifetime appointment to supervise federal trials on a daily basis when you have never yourself tried a single case?” and “Do you think it is advisable to put people with literally no trial experience on the federal district court bench?”

Donald Trump’s Unqualified Judges (Mataconis @ Outside the Beltway)

Where [Trump] differs from those predecessors is in the percentage of nominees who have been rated “not qualified.” As can be seen [in the attached chart], he is far ahead of any of his four immediate predecessors in this category, with roughly 20% of his nominees to date receiving the rating.

Talley Ban (Greenfield @ Simple Justice)

He worked in the Alabama Attorney General’s office for a couple years, and now for DoJ since January. Talley’s is the resume for a senior associate position at Biglaw, and he would almost certainly get the job. It’s not a bad resume. It’s just not federal judge material…

…So what makes Brett Talley unqualified? It’s the package. He’s a legal kid, a babe in the legal woods. Born in 1981, a year before I graduated law school, he’s been admitted to practice ten years. Had he been in the trenches for all ten of those years, he still wouldn’t be qualified to serve as a federal district court judge. Nobody knows their ass from their elbow in so short a time. Nobody gains the breadth of legal, or human, experience without paying their lawyer dues. Regardless of the pieces that comprise the package, the sum total of the package is what matters. His package is almost empty.

 

 

 

 

February 16th, 2016

A SCOTUS Question – For presidential debates

SCOTUSDear presidential debate moderators:

I offer up this question for our future presidential debates:

Over the last several decades, each time a Supreme Court judge needed to be replaced it became a matter of extreme partisan confrontation.  We see this again today with the death of Justice Scalia.

People now live longer and presidents seek to fill the seats with ever-younger individuals, thereby making each seat more contentious.

How do you feel about term limits for Supreme Court judges (for example, 14 years) with the judges thereafter being returned to courts of appeals or district courts, at their discretion?

Wouldn’t the higher turnover for the seats make the issue less contentious, as well as open the seats up to more experienced people in their 50s and 60s?

 

February 14th, 2016

Scalia’s Most Important Decision

antonin-scalia-703664With the passing of Justice Antonin Scalia yesterday, the country immediately went into overdrive discussing his successor.

As it happens, one of the first posts on this blog discussed the worst Supreme Court decision ever, and Scalia was a part of it.

While many folks  consider Plessy v. FergusonDred Scott and Korematsu as the worst, there is one that, I think, clearly supersedes them.

And that is Bush v. Gore, for the simple reason that every other SCOTUS decision could ultimately be overturned by We the People.  Scalia was one of the five votes in the per curium opinion.

Laws can be changed. The constitution can be amended. But what happens when the act of democracy itself is suspended?

In that case, then power has been removed from the citizenry.

There was, at the time, only one way to deal with the Florida debacle: Every legally cast vote must be counted. But Bush v. Gore suspended the act of counting votes.

And this, therefore, must stand as part of the Scalia legacy.
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P.S. — Scalia took his place in Turkewitz family history 10 years ago when he responded to a letter my brother wrote him regarding the issue of secession. You can read it here.

 

December 23rd, 2015

New York’s Judicial Diversity

NewYorkCourtofAppeals

New York’s top court, the Court of Appeals

New York has announced seven potential replacements for the Court of Appeals seat vacated by Judge Susan Read, who retired this year.  And New York’s judicial selection for its highest court — and the reason that I write — looks nothing like the potential nominees for Supreme Court of the United States.

As previously noted here when discussing Court of Appeals nominees, I want to see practicing lawyers (or judges that used to be practicing lawyers) get elevated to the top bench. I want to see the same at SCOTUS, using a method I called the “tissue box test,” but that is never seen.

There is a stark disparity in the origins our our state/federal judiciary, which I discussed in 2011 by showing where each of them attended law school. The line-up at the time looked like this on SCOTUS — and it’s tough to miss the homogenous nature of the Harvard/Yale lineup:

Chief Judge John Roberts: Harvard Law School
Antonin Scalia:  Harvard Law School
Anthony Kennedy:   Harvard Law School
Clarence Thomas: Yale Law School
Ruth Bader Ginsburg:  Harvard Law School
Stephen Breyer: Harvard Law School
Samuel Alito: Yale Law School
Sonia Sotomayor: Yale Law School
Elena Kagan: Harvard Law School

But it looked like this on New York’s top court:

Chief Judge Jonathan Lippmann: NYU Law School
Carmen Beauchamp Ciparick: St. John’s University School of Law
Victoria A. Graffeo:  Albany Law School
Susan Phillips Read:  University of Chicago Law School
Robert S. Smith:  Columbia Law School
Eugene F. Pigott, Jr.:  University at Buffalo Law School
Theodore J. Jones:  St. Johns University School of Law

And what does the line-up of potential judges look like to replace Judge Read? Like this:

Michael J. Garcia, attorney in private practice (Kirkland & Ellis LLP) – Albany law School
Hon. Judith J. Gische, Associate Justice, Appellate Division, First Department; – SUNY, Buffalo
Caitlin J. Halligan, attorney in private practice (Gibson, Dunn & Crutcher LLP) – Georgetown
Hon. Erin M. Peradotto, Associate Justice, Appellate Division, Fourth Department – SUNY Buffalo
Benjamin E. Rosenberg, General Counsel, New York County District Attorney’ s Office – Harvard
Rowan D. Wilson, attorney in private practice (Cravath, Swaine & Moore, LLP) – Harvard
Stephen P. Younger, attorney in private practice (Patterson Belknapp Webb & Tyler LLP) – Albany Law School

One of the problems we currently have in SCOTUS selection is the part about them serving for a lifetime in the same seat. Presidents then try to pick young judges — late 40s or early 50s — that might sit on the bench for 20-30 years. Or potentially longer. With people living longer lifetimes, and slower turnover for a seat, the stakes have risen dramatically from the days the republic was founded. And there are plenty of people out there who think that should change.

Rather than the top court being the capstone of a long career, during which, hopefully, much was learned, it becomes the career itself and folks learn on the job.

But a 14-year term — which is what New York has — and a mandatory retirement age, leads to constantly changing seats. That leads to a different variety of judges, as we don’t have as much stake in any one judge as the federal equivalent.

While I limit myself here to an analysis of law schools — to the degree that this shows some variety — Scott Greenfield over at Simple Justice thinks there is not enough diversity, based instead on philosophy:

But in law, diversity isn’t built on gender or race, or ethnicity or ancestry. It’s built on legal philosophy, and legal experience.  And what you don’t see are two things: lawyers who spent a day of their career working in the trenches on behalf of a criminal defendant, and lawyers who didn’t get a (often sizeable) paycheck from an employer.

There are many ways to view diversity, of course. Greenfield says that the lack of a criminal defense attorney or person with solo or small practice experience shows a lack of diversity. I, on the other hand, see the bar that SCOTUS has established with its Harvard/Yale fixation, and am happy to see that bar easily vaulted by people coming from diverse places.

This post isn’t about which New Yorker should sit on our high court, but rather, about the need for limitations on the power of any one individual. And that comes, in large part, from having a constantly changing dynamic bench from a diverse legal background instead of a stagnant one from a homogenous legal background. For the stagnant homogeneous ones attain too much power.