An Update on Federal Judicial Vacancies

The maintenance of an effective appointment process for federal judges is important because adequate staffing is critical to the function of the judiciary. Appointment delays and prolonged vacancies create a shortage of judges. A shortage of judges in turn contributes to case backlogs that make it extremely difficult for courts to administer justice in a timely manner. By many accounts, however, the appointment system does not work well. Because of the power of federal judges to decide important constitutional questions in particular, presidents and congressional leaders spar over the “qualifications” of judicial nominees, with the Senate frequently refusing to confirm even remarkably well-qualified candidates entirely because of perceived ideological differences.

The present is a particularly important time for filling judicial vacancies because the 2012 presidential election is only about a year away, and the appointment process slows down considerably during election season. So, how are the President and the Senate doing?

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When the Witness Woofs

When a New York teenager had to testify against her father, claiming he raped and impregnated her, she shared the witness box with a helper.  According to The New York Times, that helper was Rosie, a specially trained golden retriever who comforts and encourages traumatized or stressed individuals.  Rosie has a highly developed sense of empathy, and will nuzzle, snuggle or lean against someone who is experiencing stress or trauma.  Psychologists sing the praises of service dogs like her, and courts in several states have ruled that witnesses who are especially vulnerable, such as children in sexual abuse cases, may be accompanied by canine helpers.

As you might imagine, approval of Rosie and dogs like her is not universal.  Everyone agrees that Rosie is adorable, but therein lies part of the alleged problem.  Defense attorneys fear that Rosie gives credibility to the child witness that may or may not be justified.  One of the public defenders in the case, David S. Martin, protested that each time the child witness stroked the dog’s fur, “it sent an unconscious message to the jury that she was under stress because she was telling the truth,” adding “There is no way for me to cross-examine the dog.”  Although the lawyer for the prosecution in this case refused to comment about Rosie for the article, Ellen O’Neill-Stephens, a Seattle prosecutor who is a proponent of dog-helpers in court, said “Sometimes the dog means the difference between a conviction and an acquittal.”

The past several decades have seen a great deal of discussion about the difficulty of dealing with child witnesses in a criminal trial, and there have been many judicial experiments – some effective and some not. 

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Ozanne v. Fitzgerald: Haste Makes Waste

On June 23, I participated in a discussion concerning the Wisconsin Supreme Court’s decision in Ozanne v. Fitzgerald, 2011 WI 43, on the Wisconsin Eye public affairs show “Legally Speaking.”  Rick Esenberg and I continued our ongoing difference of opinion regarding this litigation, which seems to generate an endless supply of novel and contentious legal questions.  You can view the program at this link.

My criticisms of the unusual procedural posture of the case, and of the lack of wisdom exhibited by the four member majority’s rush to resolution, are fully stated in the video.

For the remainder of this post, I would like to expand on my criticism of the majority’s legal conclusion that the legislature lacks the power under the State Constitution to submit itself to the jurisdiction of the courts under the Open Meetings Law.

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