Donald Trump and the Depleted Bench

As we stand at the brink of the Trump Administration, most eyes appear to be on the imminent fate of the Affordable Care Act and anticipating a dramatically realigned foreign policy. To the extent that the law itself is an issue, there is also a great deal of attention placed on who President Trump will nominate to the United States Supreme Court.

Less visible has been the effect of a Republican-controlled Senate significantly slowing the process of judicial confirmations, with the result being that about 13% of the total judiciary is presently vacant. I wonder what the effects of demographics — boomer judges reaching senior status — have done to contribute to this state of affairs separate from the rugby of partisan politics. Regardless, within his first year in office, Trump will have the same impact on the judiciary that any of his predecessors was able to accumulate over the course of two complete terms. Only Franklin Roosevelt and George Washington will have had larger proportional impacts on the federal bench than Trump will have by about this time next year. Assuming Trump serves a single term, the likelihood is he will have nominated something like one in six of all federal judges — should he serve two terms, that number will rise even further.

And we have a pretty good hint out there of what Trump’s nominees are going to look like.

I’m tempted to commit to making an effort to profile the new nominees, but with 114 currently-vacant seats, and 13 more judges scheduled to retire or take senior status over the next year, that’s a bit overwhelming. More work than I care to do on my own. But I do think a look at some of the other picks made, especially for the 17 seats on the Circuit Courts of Appeal, will deserve some close attention. As for that most-important Supreme Court pick, frankly, I’m at a loss as to how to forecast, so I’ll just plain guess, and my guess is Diane Sykes of the Seventh Circuit, for a history of judicial deference to legislatures, avowedly originalist interpretation rubric, and a particularly strong Second Amendment holding. But that’s just a guess and I don’t have a lot of confidence in it.

So stay tuned.

Sofía Vergara Sued By Her Own Embryos

Over at the parent blog, Will Truman links to one of many articles floating around with the legally salacious concept that übersexy Columbian-American actress Sofía Vergara has been sued by her own embryos.

The basic story is this: Ms. Vergara (probably best known for her role on “Modern Family”) had a romantic relationship with a man named Nick Loeb. Mr. Loeb and Ms. Vergara apparently had serious discussions about having children together. But I’m guessing that Ms. Vergara did not want to interrupt or alter her entertainment career by altering her body with pregnancy and motherhood, so they used the services of a fertility clinic and created two embryos in vitro. Those embryos have been frozen and are in storage, and through the miracles of science we know they are female, and through other miracles of science it is apparently possible to implant them in a surrogate mother, in whom they would or at least plausibly could become viable and brought to term. Ms. Vergara and Mr. Loeb have since broken up, and Ms. Vergara no longer wants the embryos to be brought to term. Mr. Loeb does. So, there’s your basic disagreement.

Mr. Loeb previously brought suit in California to compel implantation of one or both of the frozen embryos in a surrogate. That suit wound up hitting a speed bump when Ms. Vergara’s lawyers served discovery on Mr. Loeb including asking questions about whether Mr. Loeb had, in any of his previous romantic relationships, paid for or otherwise consented to terminating pregnancies. Mr. Loeb refused to answer these questions on grounds of privacy and this resulted in some motion practice — which Mr. Loeb ultimately lost.

So rather than make those disclosures, on December 5, 2016, Mr. Loeb abandoned his direct suit against Ms. Vergara in California. Ms. Vergara’s attorneys had already filed and there was pending an independent motion to dismiss, and there may well have been judicial signals that the Court was amenable to granting the motion. As I can attest personally, such signals can have a powerful effect on strategic decisions.

Continue Reading

You Think You’ve Heard It All

One of my colleagues just reported to me that one of our clients was kidnapped on Friday. Yes, kidnapped.

The kidnappers were her relatives, who were upset at the lawsuit that our client had hired us to file and prosecute. They intimidated her into a car, drove her down to the courthouse in downtown Los Angeles, and told her that they’d leave her there without a phone, money, or keys unless she signed a request for dismissal form.1 She complied and was rewarded with a trip back home.

Upon receiving the request for dismissal, the clerk called my colleague up and said that it “looked fishy” so she was seeking some clarification before she filed it. And no, we hadn’t authorized a dismissal. So the moral of the story is, a good clerk is among the most valuable things a court can have.


Photo by inkjetprinter

  1. Bear in mind, she lives in an exurban community north of a rugged mountain range about two hours’ drive from downtown. []

Constitutional Nondefense

For one of those days when I really need something to help me sleep, or the next time I get an argument about a politician declining to defend a state’s law because it’s unconstitutional, there’s a 70+ page survey and analysis available in Columbia Law Review.  The upshot is basically that a blurring of the line between law and politics is going to be inevitable, and moreso in an era of closely divided government and high partisan tensions. Decent survey of such decisions, inspired, of course, by a rash of decline-to-defend decisions with respect to defense of marriage laws.

According to the author, the standard is, or at least ought to be, good faith, acknowledging that day-to-day political issues are inevitably going to play a part in making these sorts of decisions:

So long as executive officials seek in good faith to engage in genuine interpretation of what the Constitution requires, the fact that their interpretive approaches are not identical to those engaged in by judicial actors does not render them illegitimate, or purely political. 114 Colum. L. Rev. 213, 281.

This sounds good as a restatement of existing law and practice, but it doesn’t tackle the problem that “good faith” may be something that partisan opponents will be reluctant to concede. That, however, is probably a purely political problem rather than a legal one.

A Judge No Moore

Alabama Court of the Judiciary, Case no. 46, in re Roy S. Moore, Chief Justice, Supreme Court of Alabama:

Based upon the clear and convincing evidence of Chief Justice Moore’s violations of the Canons of Judicial Ethics, his disregard for binding federal law exhibited in the January 6, 2016, order, and his history with this court, it is the unanimous judgment of this Court that Chief Justice Moore should be suspended from office without pay for the remainder of his term.

I’m old enough to remember when Chief Justice Moore disgraced the state of Alabama by defying the United States Supreme Court’s injunction to remove a Ten Commandments monument from the state Supreme Court’s grounds. Moore had bought and paid for the monument with his own money, but it nevertheless was a (rather obvious, in my opinion) violation of the federal Establishment Clause. Moore refused to do it, and found himself in contempt of the United States Supreme Court. The monument was later removed against his wishes, and he found himself facing ethics charges before the Alabama Court of the Judiciary. His defense was that “to acknowledge God cannot be a violation of the Canons of Ethics. Without God there can be no ethics.” Unimpressed, the Judiciary Court suspended him after less than two years’ service in his state’s highest judicial office.

He went on to run for Governor of Alabama twice, each time failing to secure the Republican party’s nomination; he formed an exploratory committee to run for President in 2012 but never declared his candidacy and briefly flirted with a third-party bid. Instead, he ran again for election to the Chief Justiceship of Alabama and was returned to that position by the voters in November of 2012.

There, he distinguished himself by what may best be described as “Obergefell denialism,” instructing Alabama probate judges to ignore the U.S. Supreme Court’s holding in Obergefell v. Hodges, with an elaborately-written and researched order (based upon pretty flimsy intellectual theories) that purported to justify ignoring a ruling that Moore found repugnant. For this, he was suspended from the bench in early May of this year, and the opinion cited above represents the end of the legal road for the remainder of his term (which expires in 2019). Governor Bentley will now be tasked with naming an interim replacement for this scofflaw jurist.

There is no disqualification preventing Moore from once again seeking election to this judicial office in 2019 despite his twice having been suspended from it for open disrespect of the nation’s highest court. A better demonstration of the risks of having the voters directly elect judges is hard to imagine.

That Time When The ACLU Sued Alabama For Pro-Muslim Religious Bias

A fascinating set of facts underlies an RFRA claim brought by the Alabama ACLU on behalf of a Christian woman arising out of an attempt to renew her driver’s license. As with most effective pleadings, the complaint is written such that after reading it, the reader is moved to immediately state, “Of course this is what ought to happen.” One wonders what exactly the state could say in response. And an important lesson that the state doesn’t get to tell individual people what their religious beliefs are (see paragraph 18).

My other thought here is that the complaint is very, very narrative in its statement of facts, and particularly aspiring litigators need to look at that style of pleading with caution. This sort of thing can be done effectively as it’s done here in Allen v. English. I’m informed by my colleagues that narrative-style “Here’s the story” pleadings are done often in both family law and probate.

Which makes me squirm in my seat. Continue Reading

When Lawyers Do Bad Things

The story is compelling, and told in an interesting way, a way that tries to keep the narrative where it ought to be but avails itself of the multimedia opportunities of the internet. Good job, L.A. Times. And … whoa. Petty interpersonal hate and prosecuting grudges too aggressively is something lawyers are hardly immune from, but this is really breathtaking.

The Jailhouse Lawyer

Christopher Zoukis sounds fairly reasonable in this article. I gather from the context that it’s condensed from a phoned interview with the journalist whose name appears on the byline, although Mr. Zoukis speaks with his own voice. An optimistic voice, a voice that suggests that he might want to become an actual lawyer, an actual attorney, upon his release from prison.

Mr. Zoukis, it seems, is a “jailhouse lawyer,” one of those autodidacts in the law who gain enough knowledge even as prisoners to access the legal system.  In fact, it looks like he brought some suits, or ghost-wrote some suits for his fellow prisoners, that have substantial moral and legal merit. (Not saying if they are winners, just that the claim isn’t one I’d laugh out of court.) On the one hand, it’s a wonder and a joy that they are able to do so, that incarceration and punishment for their crimes does not mean that justice is barred to such people. On the other hand, their claims are often, shall we say, “spurious,” and the lack of formal legal training and substantial experience and guidance through legal reasoning can make it difficult for the judicial system to sift wheat from chaff in their pleadings.

I’m not sure what to think of Mr. Zoukis’ claims of reformation, either: on the one hand, you want to give people the benefit of the doubt and a chance to demonstrate that they really have reformed and changed; on the other hand, he committed some pretty serious crimes, crimes that are incident to a very high recidivism rate, and he confesses as part of his explanation for his own behavior problems with addiction. So should he at some point after completion of his sentence apply for membership in the bar, I’d want a very searching look into his character and behavior after release.

Quasi Partisan Judicial Campaign Speech

Kentucky has nonpartisan judicial elections, and various provisions of the state’s Code of Judicial Conduct purport to limit the kinds of things that a candidate for judicial office (including but not limited to a sitting judge) can say to the public. In Wednesday’s case of Winter v. Wolnitzek, the Sixth Circuit gave a split-down-the-middle decision about the issue with respect to actual and proposed political maneuvers by three different candidates for judicial office in the Commonwealth of Kentucky. Unlike some press I’ve seen that claims that “judicial candidates now have a right to lie to the voters” in their campaign literature, here’s what was actually at stake:

Robert Winter’s campaign literature identified him as a “lifelong Republican” and informed voters that his opponents were registered Democrats. The Judicial Conduct Commission, which enforces the Code, sent him a “probable cause” letter, stating that his mailers may have violated the canon prohibiting “campaign[ing] as a member of a political organization.”

Incumbent Allison Jones asked voters to “re-elect” her, even though she was initially appointed to her seat, and she promised to “work with the legislative and executive branches to ensure that the law provides stiff penalties for heroin dealers and that the judiciary has the tools necessary to reduce recidivism among heroin addicts that are arrested and sentenced.” Her “re-elect” statement, the Commission wrote in its probable cause letter, potentially violated the canon prohibiting “false and misleading statements.” And her “stiff penalties” comment potentially constituted an impermissible “commitment” on an issue likely to come before her court.

Cameron Blau, an aspiring judge, wants to give speeches supporting the Republican Party, to hold Republican fundraisers, to seek and receive endorsements from Republican candidates, and to donate to candidates and to the party. The Code bans all of that, which left Blau “fear[ful] [to] engag[e]” in any of it due to the risk of public reprimand, disbarment from the practice of law, or eventual suspension without pay and removal from office.

Slip op. at 2-3 (internal citations removed).

Long story short: Winter and Jones won, and Blau mostly lost. No, the Constitution does not say that judicial candidates have a right to knowingly lie to the public. Continue Reading