Insights Offered on Working in the White House and Judicial Nomination Gridlock

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Category: Judges & Judicial Process, President & Executive Branch, Public, Sports & Law
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It was three years from the time Brett Kavanaugh was nominated by President George W. Bush to be a federal appeals court judge to the time when his nomination was approved in 2006. That certainly gave him a first-hand look at the difficulties of getting a federal judicial nominee approved by the U.S. Senate.

“It’s been a mess for decades,” Kavanaugh, who serves on the U.S. Court of Appeals for the District of Columbia Circuit, said Wednesday during an “On the Issues with Mike Gousha” program at Marquette Law School. Republicans have held up appointments by Democratic presidents. Democrats have help up appointments by Republican presidents.

Kavanaugh would not comment specifically on the current high-profile part of this recurring “mess,” in which President Barrack Obama’s nomination of Judge Merrick Garland to the Supreme Court has met a wall of Republican opposition in the Senate.

But Kavanaugh repeated a position he has held for years, one that was in line with the policy Bush advocated when he was president: “There really should be rules of the road agreed on by both parties ahead of time to fix the process. “ Kavanaugh said Bush, during his presidency, had suggested a policy in which nominations would get a vote in the Senate within 180 days. Kavanaugh supported that idea. Read more »

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Limited Terms for Justices Worth Considering, Appeals Judge Says in Hallows Lecture 

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Category: Federal Law & Legal System, Judges & Judicial Process, Public, Speakers at Marquette, U.S. Supreme Court
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Judge Albert Diaz began his E. Harold Hallows Lecture at Marquette Law School last week by saying that he was going to offer thoughts on life tenure for federal judges ”which I’m pretty confident do not reflect the views of many, if not all, of my judicial colleagues.”

But Diaz, a judge since 2010 on the U.S. Court of Appeals for the Fourth Circuit, thought the ideas he presented to be worth considering, especially at a time when concerns about the U.S. Supreme Court, including how justices are appointed, are getting so much attention.

In his Eckstein Hall lecture, Diaz outlined arguments for and against both life tenure for federal judges and election of judges. He traced the debate back to the U.S. constitutional convention in 1787 and the opposing views for and against life tenure. The former prevailed, of course.

“The act of judging is not for the faint of heart,” Diaz said. “Judging is a human endeavor” and decisions are “not always free from taint.” But it is difficult to decide what “on the front end,” i.e., in determining who will be a judge, would best minimize the chances of tainted judicial work.

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The Senate Must Consider Supreme Court Nominations in Due Course

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Category: Congress & Congressional Power, Constitutional Interpretation, Constitutional Law, Judges & Judicial Process, Political Processes & Rhetoric, Public, U.S. Supreme Court
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Ford-Potential-Nominees-to-CourtToday, the Senate Majority Leader, Mitch McConnell, announced the unprecedented decision that the United States Senate will refuse to consider any nominee put forward by President Obama during the remainder of his term in office to fill the current vacancy on the United States Supreme Court.  Senator McConnell said, “My decision is that I don’t think that we should have a hearing.  We should let the next president pick the Supreme Court justice.”

The refusal of the United States Senate to consider any nominee put forth by President Obama is a clear violation of the Appointments Clause of the United States Constitution.  Under the Appointments Clause (Article II, Section 2, Clause 2):

The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. . .

The role of the President is to appoint nominees to the United States Supreme Court.  The role of the Senate is to provide their “advice and consent” to the President on the specific nominee.

The meaning is “advice and consent” is clear and uncontroversial.  The Framers of the Constitution recognized that absolute monarchs such as the King of England had abused the power to appoint public officials.  This abuse was due to the monarch’s absolute power to appoint anyone they chose.  In response, the Constitution divided the power to appoint superior public officials and Supreme Court Justices between the Executive (the President) and the Senate.  The Framers of the Constitution diffused the appointment power, just as they diffused several other powers among separate branches of the federal government in order to guard against abuse.

However, the separation of the power to appoint into two pieces is not split 50-50 between the President and the Senate.  Rather, the split is made between the President’s absolute power to select any nominee he or she chooses, and the Senate’s power to accept or reject the nominee.  The intent of the Appointments Clause is to give the Senate a check on the President’s choice, in order to prevent nominations that result from corruption, cronyism, or the advancement of unqualified nominees (i.e., family members).  The Appointments Clause does not give the Senate any role in deciding who or when the President will nominate.

In fact, the Senate has no pre-nomination role at all in the appointment process.  The Senate’s only role under the Constitution arises after the President makes a nomination.  In this regard, it has often been remarked that the power of initiative lies with the President under the Appointments Clause. Read more »

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Justice Scalia at Marquette Law School

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Category: Education & Law, Judges & Judicial Process, Legal Education, Marquette Law School, Public, Seventh Circuit, U.S. Supreme Court
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Judge Diane Sykes introduces Justice Antonin Scalia at the dedication of Eckstein Hall

Judge Sykes introduces Justice Scalia

It seems to be common ground that it will be hard to imagine the United States Supreme Court without the late Justice Antonin Scalia. He was a force also in legal education more directly. That is, he was a teacher, and he taught his theories of constitutional and statutory interpretation with intellect and energy, even outside of his writings in the U.S. Reports.

 

Justice Scalia visited us at Marquette University Law School on two occasions. The first was in 2001 to deliver our annual Hallows Lecture, where some 500 people were with him in the Weasler Auditorium, while a group of the same size watched a video feed in the Monaghan Ballroom of the Alumni Memorial Union. For me, the more memorable moment in that visit came when the Justice first arrived to campus, where an overflowing group of law students awaited him in Room 307 of Sensenbrenner Hall. The dean at the time, Howard B. Eisenberg, told the students that I would introduce him, because “Without Professor Kearney, there would be no Justice Scalia here.” Even before I could say anything, Justice Scalia brought the house down with this interjection: “I thought that, without Justice Scalia, there would be no Professor Kearney here.”

Justice Scalia returned to deliver the keynote address at the dedication of Eckstein Hall on September 8, 2010. He relaxed his strictures on recording, and the entire ceremony can be seen here, with an account of it appearing in the Marquette Law Review. I especially recall this comment of Judge Diane S. Sykes, L’84, in introducing the Justice:

“So we are fortunate, indeed, that this history-making justice has joined us here today as we make a little history of our own. When Dean Kearney unveiled the plans for this beautiful building two years ago, he famously declared that Eckstein Hall will be ‘noble, bold, harmonious, dramatic, confident, slightly willful, and, in a word, great.’ It certainly is. And with the possible exception of harmonious—Justice Scalia has been known to say that one of his charms is that he likes to tell people what they don’t want to hear—the dean’s description of this distinguished and splendid building might likewise be applied to our distinguished and splendid visitor. So, ladies and gentlemen, please join me in welcoming the noble, bold, dramatic, confident, slightly willful, and, and in a word, great Justice Antonin Scalia.”

There are things to learn from the remarks of Justice Scalia and the other speakers that day, including then-Chief Justice Shirley S. Abrahamson, whether in the recording or the law review account linked above. My own recollection of Justice Scalia has appeared in the Milwaukee Journal Sentinel and can be found here.

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Transparency in Government Includes the Judiciary

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Category: Judges & Judicial Process, Political Processes & Rhetoric, Public, Wisconsin Law & Legal System
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Sun_and_Moon_Nuremberg_chronicleThe following commentary appears in this week’s Wisconsin Law Journal:

Transparency is the core value of a democratic society. In a democratic self-government, voters have the power to select and reject those who will wield the power of government.

The power of the vote is only meaningful if the voters have information upon which to act. This is where transparency in government comes in.

In the case of the governor, the voters need to know whether their tax dollars are being steered towards political donors and whether state resources are being used to advance partisan political purposes. This is why the prospect of executive-branch officials communicating through private emails, and taking other steps to hide the true reasons for executive decisions from the public, is so troubling.

In the case of the state Legislature, the voters need to know whether lawmakers are exercising their power independently. Our representatives in the state legislature shouldn’t act as mere conduits for self-serving laws drafted by special-interest groups. Wisconsin was a leader, through the creation of the Legislative Reference Bureau in 1901, in our nation’s history in insisting that legislators draft their own laws.

The role of our state judges, in enforcing the value of transparency in government, is vital. This role has two components. First, it is essential that our state judges enforce transparency on the other two branches of state government. Second, our state judges must comply with the need to be transparent within their own judicial branch. Read more »

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Making a Murderer: Oh-So-Many Talking Points

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Category: Civil Rights, Constitutional Law, Criminal Law & Process, Evidence, Judges & Judicial Process, Legal Ethics, Legal Practice, Legal Profession, Popular Culture & Law, Public, Wisconsin Law & Legal System
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635874987555624158-XXX-IMG-NETFLIX-MAKING-A-MUR-1-1-VGCTGMDU-78432434As the winter break winds down, it’s definitely worth your time to start binge-watching Making a Murderer, a recent Netflix documentary on a real-life criminal case. A very close-to-home criminal case, at that.

The documentary, filmed over 10 years, follows Steven Avery, who was convicted in 1985 of sexual assault. He maintained his innocence and, indeed, 18 years later DNA evidence exonerated him. After he was released, he sued Manitowoc County for his wrongful conviction. It looks as though that lawsuit starts digging up some very unsavory conduct among officials in Manitowoc County.

But then—Avery is arrested for the murder of photographer Teresa Halbach. Several months later, his nephew Brendan Dassey is also arrested.

I’ll stop there with plot. If you’ve been around Wisconsin, you’ve probably heard of the case. If you’ve been on the Internet in the last couple of weeks, you’ve almost surely heard of it. But you must watch it.

For law students, there’s so many teachable moments. For everyone, there’s so much to talk about. Read more »

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Judge Maxine White: Aiming to Provide Well-Run, Fair Courts, not Oprah Episodes

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Category: Judges & Judicial Process, Milwaukee, Public, Speakers at Marquette, Wisconsin Court System
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What can you expect from the courts in Milwaukee County?

A system that does everything well, from the ultimate decisions down to the way people are received at the security points at the entrances to buildings.

A system that is well run and staffed by well-trained people in every role.

A system where people feel safe in the courthouse and people, especially crime victims, are treated with respect.

A system that handles cases of all kinds in a fair way, providing a fair forum without politics .

A system that does all it can to be sure civil cases as well as criminal cases, small claims as well as high-profile  major crimes, are handled effectively, professionally, and as promptly as possible.

Those are among the goals set out Wednesday by Judge Maxine White, who recently became chief judge of the first judicial district of Wisconsin (which is to say, Milwaukee County). She spoke at an “On the Issues with Mike Gousha” program at Marquette Law School. Read more »

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In Memory of Justice Patrick Crooks

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Category: Judges & Judicial Process, Public, Wisconsin Court System, Wisconsin Law & Legal System, Wisconsin Supreme Court
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Justice CrooksJustice N. Patrick Crooks was the epitome of a lawyer and judge who lived to serve. In his fifty-two-year legal career, he served as a captain in the office of the Judge Advocate General at the Pentagon and then as a lawyer in private practice in Green Bay, before becoming a Brown County circuit court judge and then justice of the Wisconsin Supreme Court. In 1994 he was named Wisconsin Trial Judge of the Year by the Wisconsin Chapter of the American Board of Trial Advocates. Justice Crooks served on the trial bench for nineteen years and on the Wisconsin Supreme Court from 1996 to his passing, in chambers, last week on September 21.

I was honored to work for Justice Crooks as his clerk during the Wisconsin Supreme Court’s 1999-2000 term.

Justice Crooks approached each case with fresh eyes and an impartial mind. He reasoned through cases carefully and understood that he had a solemn role in deciding a case. Justice Crooks believed in the law and the justice system. Every case was fully analyzed and researched before oral argument. Opinions were to be written to guide lawyers, judges, and Wisconsin citizens. Justice Crooks was proud of his work on the trial bench and felt that his knowledge of the trial courtroom was important to his understanding of cases on appeal.

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Supreme Court Roundup Part Two: King v. Burwell

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Category: Constitutional Law, Health Care, Judges & Judicial Process, Marquette Law School, Public, U.S. Supreme Court
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Obama_signs_health_care-20100323On October 5, I participated in an event at the Marquette University Law School entitled “Supreme Court Roundup” with Cato Institute Scholar Ilya Shapiro.  The event was sponsored by the Law School Chapters of the Federalist Society and the American Constitution Society.  A previous post contained my remarks on Obergefell v. Hodges (the “Gay Marriage case”).  What follows are my prepared remarks on King v. Burwell (the “Obamacare case”).

The issue in this case was whether the Affordable Care Act’s tax credits are available in States that have a federal health insurance exchange rather than a state exchange. In Section 36A, the Affordable Care Act (commonly known as “Obamacare”) states that tax credits “shall be allowed” for any “applicable taxpayer.” Then, in Section 36B, the Act provides that the amount of the tax credit depends in part on whether the taxpayer has enrolled in an insurance plan through “an Exchange established by the State.” (emphasis added).

In King v. Burwell, the U.S. Supreme Court, in an opinion written by Chief Justice John Roberts, held that Section 36B allows tax credits to be used for insurance purchased on any exchange created under the Act, including insurance purchased on a federal exchange.

I want to be clear.  I make the following statement with the intent to be as objective and non-partisan as possible.  This litigation was nothing more than a post hoc attack on the Affordable Care Act, using one isolated provision of the law read out of context in order to arrive at a nonsensical meaning, which then used a manufactured theory of legislative intent – a theory without a shred of contemporaneous support in the legislative history – in a desperate attempt to prop up the nonsensical meaning.

The background of how this case arose is illuminating. Read more »

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Supreme Court Roundup Part One: Obergefell v. Hodges

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Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Judges & Judicial Process, Marquette Law School, Public, U.S. Supreme Court
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b599a34c0d512e42e3f5277e172bbebcd745dd98Today marks the beginning of the United States Supreme Court’s 2015-2016 Term, and coincidentally it also marked my participation in an annual event at the Marquette University Law School entitled “Supreme Court Roundup.”  Along with Cato Institute Scholar and Supreme Court expert Ilya Shapiro, I was invited by the Law School Chapters of the Federalist Society and the American Constitution Society to share my perspective on three cases from the Supreme Court’s docket last year.  The cases we discussed included Obergefell v. Hodges (the “Gay Marriage case”), King v. Burwell (the “Obamacare case”) and Yates v. United States (the “fish case”).  Thanks to the law students for the invitation and a special thank you to Mr. Shapiro for his participation.  What follows are my prepared remarks on the Obergefell case.

I call this case “Thurgood Marshall’s Revenge.”

In Obergefell v. Hodges, the Supreme Court held that state laws denying marriage licenses to same sex couples violated the Equal Protection Clause of the United States Constitution.

Justice Kennedy’s majority opinion in Obergefell is notable for what it does not talk about. The majority opinion does not rely upon the theory that marriage is a fundamental right and that therefore state laws infringing upon the right to marriage must be subjected to strict scrutiny. Nor does the majority opinion rely upon the theory that homosexuals are a suspect class, thereby subjecting state laws that treat homosexuals different than heterosexuals to strict scrutiny under the Equal Protection Clause.

The methods by which the Court has traditionally determined whether to apply heightened standards of review to legislative acts – strict scrutiny, intermediate scrutiny, heightened rational review – are what are known as “heuristic devices.” These are artificial aids to problem solving. The Constitution does not use the phrases “strict scrutiny” or “suspect class,” but by creating artificial rules that group cases under these headings, the Supreme Court has developed a methodology for defining the outer boundaries of state policing over individual freedom.

Instead of using the Obergefell case as an opportunity to develop and clarify how the concepts of strict scrutiny and suspect class inform the Court’s interpretation of the Constitution, the majority opinion simply ignores these heuristic devices altogether. In doing so, the majority seems to be belatedly embracing the view of Justice Thurgood Marshall in a 1973 dissenting opinion. Read more »

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Access to Justice in a Civil Context

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Category: Federal Civil Litigation, Human Rights, Judges & Judicial Process, Legal Profession, Pro Bono, Public, Wisconsin Civil Litigation
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ATJ-reportIndigent defendants in criminal cases, and select civil matters (i.e., child in need of protective services petitions, termination of parental rights petitions, Chapter 51 petitions, and Chapter 980 petitions), are entitled to the appointment of counsel when they cannot afford representation. Either the state public defender’s office represents the individual, or an attorney is appointed by the county. It is imperative that individuals facing some form of deprivation of their individual liberty and freedom, as in the aforementioned scenarios, be represented.

But, what happens in other types of civil matters, where there is no right to counsel? What happens when a person or family faces a legal issue that will affect their rights, health, safety, economic security, and overall well-being? All people, regardless of socioeconomic status, should have access to the justice system. While some individuals may be able to handle a matter pro se, meaningful legal assistance or full representation is often needed to assist individuals in asserting and defending their rights.

The Wisconsin Access to Justice Commission (WATJC) is one entity working toward “improving the administration of justice by supporting civil legal services to those who cannot afford them”. In 2011, Wisconsin became one of only four states nationally, and the only state in the Midwest, that failed to provide any state funding for civil legal services. The 2015-2017 budget appropriates $500,000 per year of the biennium for civil legal aid service to abuse victims. This sum is well below the other neighboring states. Minnesota, for example, appropriated over 12 million dollars per year of its biennium for civil legal services. According to WATJC, the average budget for indigent civil legal services in other Midwestern states is $7.6 million. While Wisconsin falls well below that average, it is at least an improvement that the current state budget appropriates some funding, albeit for a very specific class of litigants.

There are a variety of agencies that offer legal assistance and full-representation to indigent clients in civil matters. From my experience working at Centro Legal, I am aware that many more people were in need of assistance than that organization had the capacity to handle. While I cannot speak for other agencies, my best guess is that they also have more work than they can take on, and that as a result many people are turned away because there just isn’t the capacity to represent them. There are notable efforts to coordinate volunteer attorneys and to help people be matched with an attorney that would be willing to take on a case for a reduced rate. With low levels of funding from the state to support agencies already offering civil representation, the difference must be made up somehow. Whether it is volunteering to represent someone, participating as a volunteer at one of the several clinics offering brief legal advice, offering a reduced rate in certain circumstances, or offering support to practitioners that incorporate as a non-profit and offer reduced rates for indigent or modest means clients, all lawyers have a role to play in ensuring that access to justice and the legal system is not limited by one’s socioeconomic status. We all have a stake in improving access to civil legal service for people who cannot afford an attorney.

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The Wisconsin Supreme Court’s Caperton Moment

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Category: Election Law, Judges & Judicial Process, Public, Wisconsin Law & Legal System, Wisconsin Supreme Court
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wisconsin-supreme-courtThe definitive litmus test for the impartiality and competence of the Wisconsin Supreme Court took the form of a lengthy opinion issued in response to the consolidated action State of Wisconsin ex rel. Two Unnamed Petitioners v. Peterson (2015 WI 85) by our state’s highest court on July 16, 2015. They failed this test miserably. In that one day, the court managed to squander the entirety of its judicial capital and to risk making itself into a tribunal that is an insult to the distinguished jurists who have come before them. This is about much more than the unjustified halting of a bipartisan probe into potentially severe violations of Wisconsin’s election laws — it is a prime illustration of the corrosive and corruptive influence that money has on politics and, in particular, judicial politics. These decisions are more misguided and indeed may possibly be more corrupt than the decisions reached by the West Virginia Supreme Court that led to the now-famous United States Supreme Court decision Caperton v. A.T. Massey Coal Co. (556 U.S. 868) and inspired John Grisham’s best-selling novel The Appeal. Read more »

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