No Harm, No Foul — But How Do You Know If There Was Harm?

Yesterday, the U.S. Supreme Court agreed to hear a case that gives the Court an opportunity to clarify a longstanding ambiguity in harmless error law.  Even if a defendant’s procedural rights have been violated at trial, a conviction will not be reversed on appeal if the error was harmless.  However, the Court has at different times articulated the harmless error standard in two different ways, without ever clearly indicating whether the two formulations are substantively different and, if so, which one is preferred.

In the new case, Vasquez v. United States (No. 11-199), the defendant’s cert. petition focused squarely on this ambiguity, arguing that the majority opinion below (635 F.3d 889 (7th Cir. 2011)) rested on one formulation, while the dissenting opinion rested on the other.  In Vasquez’s view, the choice of harmless error standard is more-or-less dispositive in his case, thus making the case an appropriate platform for deciding which standard is the right one.  In its response, however, the government disputes that there is any substantive difference between the standards.

Here are the (allegedly) competing standards.

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A.B.A. Rejections of Obama Judicial Nominees

Speaking through its judicial vetting committee, the A.B.A. has rejected fourteen of President Obama’s potential nominees for the federal bench. The overall rejection rate was 7.5 percent, a rate three and a half times that for the eight-year administrations of both President George W. Bush and President Bill Clinton.

Why has the A.B.A. been less enthusiastic about the Obama judicial nominees? One simple theory is that the organization is more conservative than many think. It used to be assumed the A.B.A. had a liberal bias, but the rejected nominees are Obama-style liberals.

Another theory involves the experiences and career paths of the nominees. Most were government lawyers and academics, but the A.B.A. apparently wants significant trial experience. The A.B.A., like the general public, may think that “true” lawyers are litigators.

The most troubling theory for the high rejection rate is that the A.B.A. continues to imagine a white, male federal judiciary. Eight of the fourteen rejections are African American or Hispanic, and nine are women.

President Obama could still seek Senate confirmation for his nominees, but regardless of what he decides on that score, the rejections provide new perspectives on the A.B.A. The emerging image is hardly attractive.

 

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Generalist Versus Specialist Judges

The Federal Circuit and a few other counterexamples notwithstanding, American courts are not substantively specialized.  By and large, the American judge is thus a generalist.  For better or worse, our judiciary seems to be holding out against the  pressures toward specialization that have so marked the contemporary legal and medical professions. 

Is this a good thing?  In the law review literature, there are plenty of calls for the creation of this or that new specialized court.  Certainly, specialization leads to quicker and more efficient decisionmaking.  But should we expect the specialized judge also to render decisions that are substantively better?

This is the question that lies at the heart of Chad Oldfather’s new article, “Judging, Expertise, and the Rule of Law.” 

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