Brookings: Topics - Courts

An Examination of the Judicial Conduct and Disability System

Russell Wheeler — Thu, 25 Apr 2013 13:30:00 -0400

Editor's Note: Russell Wheeler testified before the House Judiciary Subcommittee hearing on the federal judicial conduct and disability system on April 25, 2013. The Judicial Conduct and Disability Act of 1980 authorizes any person to file a complaint alleging that a federal judge has engaged in conduct "prejudicial to the effective and expeditious administration of the business of the courts." The text which follows is Russell Wheeler's opening statement.

Chairman Coble, Ranking Member Watt, Vice-Chairman Marino, and members of the Subcommittee: Thank you for this opportunity to testify at this oversight hearing examining the federal judicial conduct and disability system, and thank you for the oversight itself. Proper legislative oversight of the other two branches is a vital part of the checks and balances embodied in the Constitution. By way of summary, I believe the judicial branch is doing, overall, a very good job of administering the Act, which largely involves sifting through a high number of insubstantial and often frivolous complaints to find the few that justify further investigation.

Since September 2005, I have been a Visiting Fellow in the Brookings Institution’s Governance Studies Program and president of the Governance Institute—a small, non-partisan, non-profit organization that since 1986 has analyzed various aspects of interbranch relations. In both positions I have been especially interested, among other things, in various aspects of judicial ethics regulation.

Before assuming these positions I was with the Federal Judicial Center, the federal courts’ research and education agency, serving as Deputy Director since 1991. While at the Judicial Center and for about a year at Brookings, I assisted the six-member Judicial Conduct and Disability Act Study Committee, appointed in May 2004 by Chief Justice William H. Rehnquist and often referred to as the “Breyer Committee,” after its chairman, Associate Justice Stephen G. Breyer. The committee—Justice Breyer, two former chief circuit judges, two former chief district judges, and the Chief Justice’s administrative assistant— reported to the Judicial Conference of the United States in September 2006,[1] after which a renamed Judicial Conference Judicial Conduct and Disability Committee developed new, mandatory rules governing the processing of complaints, rules that the Conference approved in March 2008. [2]

Credit for the report and the subsequent rules goes in part to the House Judiciary Committee and its then-chairman, Representative F. James Sensenbrenner, who called attention in early 2004 to what he regarded as an improper dismissal of a judicial conduct complaint he had filed (the Breyer Committee subsequently agreed that the dismissal was improper)[3]. Chief Justice Rehnquist said in announcing the committee appointments, “There has been some recent criticism from Congress about the way in which the Judicial Conduct and Disability Act ... is being implemented, and I decided the best way to see if there are any real problems is to have a committee look into it.”[4]

The relatively few problems highlighted by the Breyer Committee, and the process enhancements in the 2008 rules, have no doubt led to improvements in how the federal courts handle complaints filed under the Act, although, as the Committee report documented, the courts had already been doing, overall, a very good job. In this statement, I describe the Breyer Committee’s methods and principal findings, and then offer a few fairly modest suggestions to strengthen further the judicial conduct and disability system.

The Breyer Committee and Its Work

At the outset, let me make very clear that I speak only for myself and in no way claim to speak for the Breyer Committee (which went out of existence after it filed its report) or for any former members of the committee or its small research staff (or, for that matter, for my two current affiliations).

What it did Working with two Judicial Center researchers and one from the Administrative Office of the U.S. Courts (and me as a coordinator of sorts), the committee selected two samples of complaints terminated from 2001-03: a 593-complaint sample, selected to overrepresent complaints most likely to have alleged behavior covered by the Act (e.g., the sample included a larger percentage of complaints filed by attorneys than in the initial unmodified sample and a lower percentage of complaints filed by prisoners) and a separate sample of 100 terminations drawn totally at random. It also identified 17 complaints terminated from 2001 to 2005 that received press or legislative attention—“high visibility complaints”.[5]

The research staff reviewed the 593 complaints and terminations to identify “problematic” terminations, based on committee-approved definitional standards[6] and after committee review of a subset of initial staff reviews to ensure the staff was applying the standards as the committee wished. The committee members alone reviewed the smaller 100-case sample without staff assistance. (The various forms for reviewing the complaints are in the report appendices.)

The purpose of both reviews was not to determine if the subject judges had committed misconduct or displayed performance-degrading disabilities but rather to assess whether chief circuit judges and judicial councils applied the statute as intended—mainly whether the chief judge conducted a “limited inquiry” (as the Act authorizes) sufficient to justify dismissing the complaint or concluding the proceeding, but not an inquiry that invaded the investigatory role reserved for a special committee.

Finally, staff, using survey instruments approved by the committee, interviewed current former chief circuit judges and staff.

What it found The committee concluded that 3.4 percent of the 593 stratified sample of terminations were problematic, as were 2.0 percent of the terminations in the 100 straight random sample complaints (not surprising given the larger sample’s oversampling of likely meritorious complaints). The Committee found a greater proportion of problematic dispositions among the high-visibility complaints (five of the seventeen), which it attributed to those complaints’ greater likelihood to confront the chief judge or circuit council with more decisions, and thus a greater chance of at least one incorrect decision. The Committee expressed concern that these five problematic dispositions could take on outsize importance because of their visibility, and convey an inaccurate impression to the public and would-be filers of the Act’s effectiveness.

To be clear, this was a methodologically rigorous analysis that let the chips fall where they may. (The non-partisan American Judicature Society praised the report for “not hiding the federal judiciary's dirty linen in the closet,” and for “thoroughly discuss[ing] situations in which the judiciary's performance was deficient [and] the causes that may be responsible”.[7]) The committee imposed strict—some might even say too strict—criteria in its review of the terminations it assessed. For one example, a complaint by a prisoner alleged that the person on the bench in a hearing in his case was a young man, probably the judge’s intern, not the judge. The judge informed the chief circuit judge that he had no intern at the time of the hearing and his law clerk was a middle-aged woman, after which the chief judge dismissed the complaint. The committee characterized the allegation as “bizarre, [but] not so outlandish as to be what our Standard 4 calls ‘inherently incredible,’” and classified the disposition as problematic because the chief judge did not obtain, or order his staff to obtain, the electronic recording of the proceeding to verify that the voice on the tape was that of the judge.[8]

These findings suggest that, despite occasional problematic dispositions, proper administration of the Act is by and large engrained in the culture of federal judicial administration. One might ask whether a replication of the research conducted on a more recent sample of cases would find the same low level of problematic dispositions. Obviously, we cannot know that without the replication itself, but there are reasons to suspect that such a replication would find performance at least as favorable as that found by the committee. One reason is the mandatory committee rules and the tougher enforcement and oversight regime they mandate. Also, though, the Breyer Committee findings track very closely those of an earlier study, conducted in 1991-92, using the same basic methodology, for the statutory National Commission on Judicial Discipline and Removal, chaired by former Congressman Robert Kastenmeier. The earlier study used only one modified random sample (of 469 complaints) and found a 2.6 percent problematic disposition rate (compared to the 3.4 percent that the Breyer Committee found in its 593-case sample). The difference is not statistically significant.[9]

Informal discipline outside the Act Finally, the committee interviews tracked a widely shared view within the federal judiciary, namely that informal resolution of misconduct and disability, perhaps in the shadow of the Act, is more extensive than resolutions that result from formal complaints. This is especially so as to performance-degrading disability, which is rarely the basis for complaints under the statute.[10]

Committee Recommendations and Additional Steps

The Committee offered twelve recommendations, principally to provide additional information to chief judges and councils including a vigorous role for the Conduct Committee; to provide additional information about the Act to potential users; and to enhance publically available information about the Act and its implementation. The judicial branch, mainly through the new rules, has adopted many of the recommendations. I am also aware of Professor Arthur Hellman’s specific proposals to improve the implementation of the Act, mainly in the areas of transparency, disqualification of certain judges in judicial conduct proceedings, and review of chief judge and council orders. Professor Hellman is probably the country’s leading expert on the federal judicial and disability system. In general I share his concerns and endorse his proposals, and add here only a few additional comments.

The role of the Conduct Committee The Act is clear that the chief judge, upon receipt of a complaint, may undertake a “limited inquiry” but “shall not undertake to make findings of fact about any matter that is reasonably in dispute.”[11] A complainant may appeal a chief judge’s dismissal order to the judicial council, but a judicial council’s “denial of a petition for review of the chief judge’s order shall be final and conclusive and shall not be judicially reviewable on appeal or otherwise.”[12] Perhaps because of some reported instances in which chief judges appear to have dismissed complaints after making findings of fact of matters reasonably in dispute—dismissals affirmed by the respective judicial council—Rule 21 seeks, in the words of its commentary, “to fill a jurisdictional gap.” It authorizes the Conduct Committee to consider, on petition of a dissenting council member or on its own initiative, whether the chief judge should have appointed a special committee. This is an important role for the Conduct Committee, even if it would be needed rarely. I tend to agree with Professor Hellman that a statutory change would help to clarify the Conduct Committee’s authority in such situations, rare as they may be.

In a related vein, the Breyer Committee recommended that the judicial branch monitor the Act’s administration periodically, but doubted that “a full-blown replication of our research would be necessary each time. This was a labor-intensive process for us, for our staff, and for the judges and supporting personnel in the circuits.”[13] The Conduct Committee has taken an important step in this direction by examining of some of the universe of terminations it receives from the circuits and doing so in a manner the highly respected Committee chair, Judge Anthony Scirica, characterizes as similar to the Breyer Committee’s review. Just as the Breyer Committee published summary data on its review of the terminations it examined and explained why some terminations were problematic, the Conduct Committee might release similar periodic summary analyses.

Providing information on how the Act has been interpreted The commentary to Rule 3 states that the “responsibility for determining what constitutes misconduct under the statute [“conduct prejudicial to the effective and expeditious administration of the business of the courts,” 28 U.S.C. § 351(a),] is the province of the judicial council of the circuit subject to such review and limitations as are ordained by the statute and by these Rules.”

The judicial branch needs a transparent way of accessing the decisions of the judicial councils (and chief judges) in order to allow chief judges, council members, and other process participants and observers a means of identifying and assessing the determinations the councils are making—accessing what some have called the common law of judicial misconduct and disability.

One of the Breyer Committee’s main recommendations was for selected orders to be posted on the judicial branch website “in broad categories keyed to the Act’s provisions, and . . . with brief headnotes.”[14] This recommendation is embodied to a degree in the Rules’ promise that the Conduct Committee “will make available on the Federal Judiciary’s website . . . selected, illustrative orders, appropriately redacted, to provide additional information to the public on how complaints are addressed under the Act.”[15] The Conduct Committee’s forthcoming on-line Digest of Authorities can make a valuable contribution to this end.

The Act itself also requires each circuit to make available in the court of appeals clerks office all written orders implementing the Act’s provisions.[16] The Rules bolster that provision by suggesting the courts’ websites as an optional form for making the orders public, and, in terms of transparency and ease of access, website postings are obviously the better option.[17] A preliminary review of circuit practices as I prepared this statement suggest that these circuits do so[18]:

First	All orders from 2008 following, ranging in number from 14 to 45 per year.
Seventh	All orders since 2011 (93 in 2012, for example) with earlier years available on website archives.
Ninth	794 orders, from 2006 and later
Tenth	About 500, since January 2008
DC	Orders from 2011-2013 (53, for example in 2012)

Two other circuits (the Second and Fifth) have posted a small number of orders in high-visibility complaints, and the Federal Circuit has posted 24 orders from 2008, 2009, and 2010.

These postings are surely a positive, if incomplete, step. At the risk of sounding unappreciative of the posting circuits’ efforts, however, analyzing the orders, to compare dispositions of similar complaints, or to assess how different chief judges and councils define or interpret the statute and the governing rules, would require wading into an undifferentiated mass of orders (including routine council orders affirming chief judge dismissals), identified only by date, case number, and, in some circuits, a generic description (e.g., “Order, Chief Judge” or “Order, Judicial Council”). A more helpful typology is necessary (along with indicating the page length of each order as a rough way to identify non-routine orders).

Enhanced orientation for chief circuit judges

The Breyer Committee recommended an individual, in-court orientation program for each new chief circuit judge, provided by an experienced current or former chief judge and a member of the Administrative Office General Counsel’s office who staffs the Conduct Committee, and that the Federal Judicial Center develop a common core curriculum for the program to promote uniformity in the Act’s implementation. The recommendation, along with others, for on-tap resources, was designed to ensure “‘that the chief judge is not out there alone’.” [19] I do not believe the Conduct Committee to date has requested the Federal Judicial Center to develop such a program, or some other program toward the same end. It is worth exploring, however, whether the Center is in a position to develop and administer such a program and curriculum, and whether the Conduct Committee perceives a need for it in light of the other steps it is taking in its advisory role.

Providing information on the Act to potential users The courts, based on my most recent and admittedly non-exhaustive review have done a fairly good job with another transparency-related Breyer Committee recommendation, namely making information readily available on court website about the Act and how to file a complaint. Not all courts that post such material place it on the homepage, as the Committee recommended,[20] but for the most part I do not believe the information is hard to find. The Judicial Conference Committee on the Judicial Branch, under its former chair, Judge D. Brock Hornby, and current chair, Judge Robert A. Katzmann, with the assistance of its Administrative Office staff, has aggressively reminded the courts of the Rules requirements for such posting.[21] The Breyer Committee found, in 2006, only marginal compliance with a previous suggestion for such posting, and found that those courts that were posting the information on their websites did not experience a greater proportionate number of filings.[22] It accompanied its recommendation with a suggested paragraph warning would-be filers that the chief judge would dismiss their complaint if it related to the merits of an underlying decision, and a fair number of courts appear to have adopted that suggestion.

* * *

Thank you for the opportunity to testify this afternoon. I will do my best to answer any questions you may have.

[1] “Implementation of the Judicial Conduct and Disability Act of 1980, A Report to the Chief Justice,” (Sept, 2006), available at http://www.fjc.gov/library/fjc_catalog.nsf/autoframepage!openform&url=/library/fjc_catalog.nsf/DPublication!openform&parentunid=C6CA3DC8B22AC2D78525728B005C9BD3

[2] Available at http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/RulesAndPolicies/Misconduct/jud_conduct_and_disability_308_app_B_rev.pdf

[3] See report, id at note 1, at 73-75.

[4] Id at 131.

[5] Id at 39ff.

[6] Id at Appendix E, 144ff.

[7] “Politics and Progress in Federal Judicial Accountability,” Judicature (Sep’t., Oct., 2006), available at http://www.ajs.org/ajs/ajs_editorial-template.asp?content_id=530

[8] Id at 53.

[9] Id at 95ff.

[10] Id at ch. 5.

[11] 28 U.S.C. §352(a)

[12] 28 U.S.C. §352(c)

[13] Report at 123.

[14] Id at 117.

[15] Rule 24(b).

[16] 28 U.S.C. §360(b)

[17] Rule 24(b)

[18] The orders are available at these links:
http://www.ca1.uscourts.gov/?content=judicialmis.php;
http://www.ca2.uscourts.gov/judmisconduct.htm;
http://www.ca5.uscourts.gov/JudicialMisconductOrders.aspx;
http://www.ca7.uscourts.gov/JM_Memo/jm_memo.html;
http://www.ce9.uscourts.gov/misconduct/judicial_misconduct.html;
http://www.ca9.uscourts.gov/misconduct/;
http://www.ca10.uscourts.gov/misconduct.php;
http://www.cadc.uscourts.gov/internet/misconduct.nsf/DocsByRDate?OpenView&count=100;
http://www.cafc.uscourts.gov/judicial-reports;

[19] Report at 113

[20] Report at 120-21.

[21] Rule 28

[22] Report at 33

Downloads

Download the testimony

Authors

Russell Wheeler

Publication: House Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet

Image Source: © POOL New / Reuters

Strangeness at Guantanamo

Paul R. Pillar — Tue, 29 Jan 2013 00:00:00 -0500

Editor's note: This article was originally published by The National Interest.

During a hearing Monday to consider pre-trial motions before the military tribunal at Guantanamo that is handling the case of Khalid Sheik Mohammed and four other defendants charged with perpetrating the 9/11 attacks, the audio and video feeds that run from the courtroom to media rooms and are the only way for the outside world to follow the proceedings were mysteriously interrupted for several minutes. No one who is saying anything to the outside world seems to know the reason for the interruption. The colonel who is the presiding judge seemed not to know on Monday. A member of the prosecution team said she does know but, with the cameras and microphones back on, would not explain. The following day the judge seemed satisfied with whatever explanation he apparently got, but he wasn't talking either.

The mysterious electronic gap is a fitting sample of much that is strange about the detention facility at Guantanamo and what goes on there. Part of the strangeness is about Guantanamo itself; other parts are about things that are centered at, or symbolized by Guantanamo, including the basis for indefinite detention of people suspected of involvement in terrorism and the military tribunal system used to try some of them.

What is odd about the facility itself is its anomalous legal status, being on a U.S. military base with a long-term lease from Cuba. Decision-makers in the George W. Bush administration selected the place to establish a detention center that would be as much as possible out of the reach of anyone's law. The Supreme Court has frustrated whatever hope there may have been to keep it entirely outside the reach of the law, but the anomaly of the place continues to be a basis for the legal uncertainty of much of what goes on there.

One of the latest of the many legal uncertainties about the military tribunal system concerns whether it can be used to try defendants for anything other than crimes of war. There is disagreement about whether prosecutors can bring to a tribunal conspiracy charges of the sort that can certainly be brought in a civilian court. The Department of Justice says they can; the military judge in charge of the tribunals says they can't (while adding that this very disagreement demonstrates the tribunals' independence and by implication their fairness). Besides the uncertainty, there is an irony given how members of Congress who have forced the handling of terrorism cases out of the civilian courts and into military tribunals may have thought that this tough handling of the subject as “war” would mean greater power and freedom to punish terrorists without prosecutors' jobs being complicated by all the rules of evidence and whatnot that civilian courts have. With regard to something like the use of conspiracy charges, the move to military tribunals means less, not more, flexibility in what prosecutors can do.

Also in the news this week is the administration's announcement that the State Department official who has been charged with negotiating new custody arrangements for Guantanamo prisoners is being reassigned without being replaced. This move is being interpreted as a tacit admission by the Obama administration that it will not realize its goal of closing the detention facility at Guantanamo, although officially the administration says that is still the goal. Failure to meet that goal is partly due to facing the reality of each detainee's case being different and many of them being complicated. The failure is in large part due again to Congress, which has restricted movement of detainees both to the United States and to some of the key foreign countries. Thus another irony: the actions of those who think in terms of a “war on terror” with a beginning and an end have laid the basis for a supposedly temporary detention system that will have no end.

President Obama recently appointed former prosecutor Mary Jo White to head the Securities and Exchange Commission. As U.S. attorney for the Southern District of New York, White's office successfully prosecuted several of the highest profile terrorism cases—the experience that most refutes some of the chief arguments made in favor of reliance on the military tribunal system. Although at the SEC White will be a regulator rather than a prosecutor, the administration's evident hope and message in making this appointment is that Wall Street crooks will face effective punishment. Maybe the United States will handle the cases of such crooks with greater rationality, consistency and effectiveness than it seems to be handling the cases of suspected terrorists at Guantanamo.

Authors

Paul R. Pillar

Publication: The National Interest

Image Source: © Bob Strong / Reuters

Flowchart: How the Government Handles a Terrorist Threat

Benjamin Wittes and Daniel L. Byman — Fri, 04 Jan 2013 10:59:00 -0500

Authors

How to Handle a Citizen Terrorist? We Have an App for That

Benjamin Wittes and Daniel L. Byman — Thu, 03 Jan 2013 17:22:00 -0500

Ever caught a U.S. citizen you suspected of terrorism, and not known what to do with him? We have an app for you. Sorry, you can’t yet download it for your iPhone—yet—but our Disposition Matrix App is now live over at The Atlantic. [see it on our site here.]

For the past several months, we have been working on a very interesting—and surprisingly complicated—project, trying to think through all of the many iterations of what people mean when they speak of domestic jihadist terrorism. Neither our legal system nor our scholarship offers much in the way of consistency on the subject. So we have been trying to break out all of the different ways these cases present themselves and analyze them separately. Which ones are we really afraid of? Which ones do our laws handle well? Which types of cases really challenge our existing institutions?

As an initial matter, we have been studying the cases in which American citizens have gone abroad to fight against their country. In the course of our work, the Washington Post published its famous “disposition matrix” series. So we thought it would be interesting to reverse-engineer a crude kind of disposition matrix flowchart based on the citizen cases we had examined. That is, faced with a citizen suspected of allying himself with al Qaeda, what are the questions that would lead authorities to, say, an extradition request, a federal court indictment, or the launching of a Hellfire missile?

The convoluted nature of the flowchart gives, we think, some visual sense of why consistency across these cases is so difficult. The true disposition matrix is, of course, prospective, not reverse-engineered, and it’s not just about citizens either. And it’s way more complicated than this one. But the complexity of even this flowchart gives a sense of the many moving pieces in these cases—that is, why they are so hard.

(Many thanks, by the way, to Christopher Ingraham, Brookings’ data visualization guru—who turned our notes into something you might actually want on your iPhone.)

Editor's Note: This post was originally posted on Lawfare.

Authors

Publication: Lawfare

Image Source: JEFFREY S. VIANO

Putin's Artful Jurisprudence

William Partlett — Wed, 02 Jan 2013 00:00:00 -0500

At 8:00 P.M., Moscow time, on September 21, 1993, Russian president Boris Yeltsin read out an emergency decree on national television. Blaming Russian parliamentary leaders for ignoring the will of the Russian people, Yeltsin abolished the existing constitution and disbanded every legislative assembly in Russia. Russian parliamentary leaders immediately called an emergency session and removed Yeltsin for treason. They named his vice president, Alexander Rutskoi, acting president. The Russian Constitutional Court chairman, Valery Zorkin, then appeared before Parliament and reported that a majority of the court had found Yeltsin’s decree unconstitutional. Russia now had two presidents.

These two presidents eyed each other warily across a tense Moscow for more than a week. They issued competing laws and decrees to strengthen their respective positions. With the backing of the West and the Russian armed forces, Yeltsin quarantined the Russian Parliament in its building. The Parliament surrounded itself with armed supporters and called for a general strike. Fears of civil war spread as both sides sought to gain support and project political legitimacy. Amid this “war of laws,” legality broke down. Chairman Zorkin frantically sought to forge a compromise that would restore the political struggle to a legal plane.

Zorkin’s effort failed. After a series of armed street clashes, Yeltsin ordered the army to storm the Russian Parliament. A shocked Russian populace looked on as tanks took up positions across from Parliament. As tank shells slammed into the building, Rutskoi called Zorkin and asked him to alert the embassies. He went on: “They won’t let us out of here alive. Is the world community actually going to let them shoot the witnesses? There’ll have to be an investigation later, you know. They’re murderers! Do you understand me? You’re a believer, it will be on your head.”

Read the full article »

Authors

William Partlett

Publication: The National Interest

Image Source: © POOL New / Reuters

The Supreme Court Takes Up Same-Sex Marriage

Jonathan Rauch — Tue, 11 Dec 2012 10:28:00 -0500

I'm not sure what the headline writer at the New York Times meant by saying that the issue of same-sex marriage "pushes justices into overdrive." I suspect "underdrive" may be more like it.

The court agreed last Friday to take two landmark gay-marriage cases. In one, lower courts overturned Proposition 8, which banned gay marriage in California. In the other, lower courts overturned the Defense of Marriage Act (DOMA), which barred any federal recognition of states' same-sex marriages.

Bookmakers must be in clover with these two cases, because there are so many possible permutations to bet on. The court could go as far as to overturn DOMA and order national gay marriage as a constitutional right. It could go almost as far in the other direction, upholding DOMA and foreclosing not only gay couples' constitutional claim to marriage but gay individuals' claim that homosexuality is entitled to constitutional protection from discrimination. So, yes, the court could go into "overdrive." Attentive court-watchers, however, note two things:

The court asked to be briefed on whether the litigants in both cases have proper standing to sue, a question opened up by some unusual details of the two cases. The court, this suggests, is considering dismissing all the claims and just ducking out. That would probably leave California with gay marriage and the federal government with DOMA. Outside California, hardly anything would be changed.
In the case testing Proposition 8, the Ninth Circuit U.S. appeals court already narrowed the case to just being about California. That decision, too, gives the Supremes an easy way to turn a big national case into a much smaller local one.

It's possible to imagine a pair of five-four decisions giving gay-rights activists everything they want, with Justice Anthony Kennedy as swing vote and Justice Antonin Scalia writing the most scathing dissent of his frequently scathing career. Maybe, as conservatives have suggested, Kennedy is determined to write himself into the history books as the patron saint of gay rights.

But my guess—just a guess, of course, because who knows—is that Chief Justice John Roberts will nudge the court toward a broad consensus around narrow decisions, rather than vice versa. I can even imagine him getting unanimity for a ruling, in the Proposition 8 case, that tells everyone to come back with another case at some point in the future—when, not incidentally, the country will be closer to a consensus.

Getting the court's liberals to uphold DOMA, which has been roundly rejected by lower courts, is more of a stretch. Still, here's a possibility to bear in mind about the bang of the court's decision to take these two polarizing cases: it might well end with a depolarizing whimper.

Authors

Jonathan Rauch

Image Source: © Larry Downing / Reuters

Constitution-Making by "We the Majority" in Egypt

William Partlett — Fri, 30 Nov 2012 11:49:00 -0500

Egypt’s constitution-making process has seemingly attained warp speed. Facing the threat of judicial dissolution, members of the Egyptian Constituent Assembly voted to accept a draft of a new constitution on Thursday. President Mohammed Morsi has called for an “almost immediate referendum” in which a majority is likely to approve the document. Is this extralegal process the final vindication of the people’s will? Or is it a unilateral demonstration of majoritarian will with dangerous consequences for Egyptian constitutionalism?

At the center of Egypt’s growing constitution-making crisis is the body drafting Egypt’s new constitution, the Constituent Assembly. From the very beginning, the makeup of the Constituent Assembly has been contentious. After the first Assembly included 66 (out of 100) Islamists, secular and youth groups had filed legal challenges claiming the Assembly did not sufficiently represent young people, women and minorities. In April, an Egyptian court—with the backing of the military—accepted this argument and suspended the first Constituent Assembly. The second Constituent Assembly has been dogged by similar legal challenges.

Morsi’s Thanksgiving Day Constitutional Declaration sought to finally put an end to the judicial role in constitution-making, squarely holding that the court can no longer dissolve the Constituent Assembly for failing to represent Egypt's diverse social groups. For Morsi and his Islamist power base—who have long characterized these judicial challenges to the Constituent Assembly as political attempts to slow down the revolution by old regime-era judges—the courts’ continued threats to disband the Constituent Assembly violate the principles of popular sovereignty inherent in the revolution. Thus, they argue, his actions are the only way to advance the revolution.

For the courts and the opposition, court supervision is necessary to ensure that the Constituent Assembly produces a draft that reflects the interests of all Egyptians (and not just the Islamist majority in the Assembly). Rallying behind the courts, many people have once again taken to the streets and called on Morsi to respect the role of the courts in ensuring the inclusiveness of the constitution-making process.

French and English Constitutional Legacies

Egypt’s constitutional debate has deep roots in constitutional theory. Mr. Morsi and his supporters are drawing on an intellectual tradition of “popular constitution-making” (tracing back to the French revolution) that sees the majority as unlimited in their ability to draft a new constitution. In this version of constitution-making by the “We the Majority,” the courts have no legitimate role in a revolutionary constitution-making process.

The Egyptian courts and the opposition are drawing on an intellectual tradition dating back to Anglo-American constitutional history. This tradition of “legal constitution-making” states that constitution-making should not be the product of a bare majority. Instead, it should be a more consensual and deliberative process that involves participation through pre-existing institutions and law. As Hanna Arendt described this tradition, constitution-making must be the result not of the monolithic popular will of the majority but instead of “the organized multitude whose power was exerted in accordance with law and limited by them.”

Recent research has shown popular constitution-making to be a favored strategy for those interested in unilateral assertions of power. From Hugo Chavez to Boris Yeltsin, charismatic individuals and political parties have long sought to use their command of electoral majorities to exclude the opposition and stack the constitutional deck in their favor. Unsurprisingly, these unilateral assertions of constitution-making power have ultimately hindered the development of constitutionalism.

Those that have followed the legal and more deliberative path have been far more successful in building stable constitutional democracy. South Africa, Poland and Spain have all recently followed this “legal” model of constitution-making, making wide use of deliberative roundtables, pre-existing law and judicial supervision to ensure an inclusive approach to constitution-making.

Until recently, Egypt had been following that promising legal direction, allowing the courts to ensure an inclusive process of constitution-making. But the Egyptian leadership’s decision to “railroad” the Egyptian Constitution by placing it above judicial review reverses course. This decision therefore threatens not only to make the new Egyptian Constitution a divisive document but also to exclude and undermine a key institutional player in the implementation of this document: the courts.

Authors

William Partlett

Image Source: © Mohamed Abd El Ghany / Reuters

Can Copyrighted Works Purchased Abroad Be Resold In the United States?

John Villasenor — Sun, 21 Oct 2012 00:00:00 -0400

Next week, the Supreme Court is set to hear arguments in Kirtsaeng v. John Wiley & Sons, Inc., a case that will have fundamental consequences for the global flow of books, music, movies, and other copyrighted material.

Foreign students studying in the U.S. have long known that textbooks can often be purchased much less expensively in their home countries. Supap Kirtsaeng, who originally came to the United States from Thailand as a student in 1997, built a business around this arbitrage opportunity, asking family members in Thailand to legally purchase textbooks and ship them to the United States, where he then resold them for a profit on sites such as eBay. In September 2008, publisher John Wiley & Sons, Inc. filed a complaint in a New York federal district court asserting, among other things, that Kirtsaeng’s actions constituted copyright infringement. A jury agreed, imposing damages of $75,000 for each infringed work. Kirtsaeng appealed to the Second Circuit, which affirmed the district court’s decision, and then to the Supreme Court, which will hear oral arguments on October 29.

Common sense would hold that a person who legally acquires copyrighted material such as a book or music CD generally has the right to resell it at a later time. And indeed, under the “first sale” doctrine, a person in possession of a copy of a work that was “lawfully made under this title” [Title 17 of the U.S. Code, which contains U.S. copyright law] “is entitled, without the authority of the copyright owner, to sell or otherwise dispose of” it. For instance, if you legally purchase a book or music CD, the owners of the associated copyrights can’t prevent you from later selling it at a garage sale or donating it to a library.

Or can they? If the product was manufactured and purchased overseas, the answer isn’t clear. The uncertainty arises due to the interpretation of the phrase “lawfully made under this title” and to a separate statute that prohibits the importation into the United States, “without the authority of the owner of copyright,” of copies of a work “acquired outside the United States.” Thus, a person who legally purchases a copyrighted work abroad and wants to resell it domestically can be caught between two ambiguous and potentially contradictory provisions of copyright law. Does the first sale doctrine provide the right to resell the work? Or is that right foreclosed because exercising it would of necessity involve a prohibited importation?

Unsurprisingly, the jurisprudence on this issue is complex and sometimes contradictory. In the 1998 Quality King decision, the Supreme Court considered hair care products bearing copyrighted labels that had been manufactured in the U.S., sold abroad and subsequently re-imported and sold without authorization in the U.S. The “whole point of the first sale doctrine,” wrote the Court in Quality King, “is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution.” But is that always true, or does it only hold when the item was manufactured in the United States?

In affirming the copyright infringement judgment against Kirtsaeng, the Second Circuit held in 2011 that “the first sale doctrine does not apply to copies manufactured outside of the United States.” Taken to its logical extreme, this interpretation could provide American companies that manufacture overseas with an extraordinary level of control over the secondary market for their products. The Third Circuit, by contrast, concluded [PDF] in a (pre-Quality King) 1988 ruling involving product label copyrights that “a first sale by the copyright owner extinguishes any later right to control importation of those copies.” Aspects of this tension in U.S. copyright law were also considered – though not fully resolved – by the Ninth Circuit in 1996 and 2008.

Kirtsaeng has attracted a large number of amicus briefs, with the American Library Association, Costco, eBay, Goodwill Industries International, Google, the National Association of Chain Drug Stores, and a group of leading American art museums backing Kirtsaeng. Costco, for example, writes [PDF] that the “first-sale doctrine plays an important role in Costco’s ability” to sell “genuine brand-name merchandise to its members at prices lower than its competitors,” and that Wiley’s position “that copies made abroad would have enjoyed significantly greater copyright protection than those made at home is inconceivable.” Goodwill argues [PDF] that the Second Circuit’s Kirtsaeng decision, if affirmed by the Supreme Court, could have “a catastrophic effect on the viability of the secondary market and, consequently, on Goodwill’s ability to provide needed community-based services.”

The American Bar Association, the American Intellectual Property Law Association (AIPLA), the Motion Picture Association of America (MPAA), and the Recording Industry Association of America (RIAA) have filed briefs supporting Wiley. The AIPLA argues [PDF] that Kirtsaeng infringed Wiley’s copyrights by the act of importing the textbooks, and that the first-sale defense regarding their subsequent sale is thus irrelevant. According to [PDF] the MPAA and RIAA, the motion picture and music industries “rely on the ability to divide rights across markets and to plan for and control the timing and manner of the release of their works in different markets around the world.”

One of the ironies of Kirtsaeng is that it involves shipping copyrighted works across an ocean in paper form, an approach more typical of the last century than the present one. While enormous amounts of copyrighted material still travels in shipping containers – think, for example, of the software included in consumer electronics products and automobiles – a growing fraction of written, audio, and audiovisual content is transported by fiber optic cable and stored in the cloud. The concepts of location and importation are thus more complex than in the past. And, with appropriate updating of copyright and licensing frameworks, cross-border flows of copyrighted material can be an opportunity for copyright owners, not a threat.

In the immediate term, however, the question is how to handle Kirtsaeng in the context of current American copyright law. Congress could not have anticipated all of the complexities of today’s copyright landscape when it enacted the Copyright Act of 1976. But it almost certainly wouldn’t have wanted the consequences that could arise if the Second Circuit’s Kirtsaeng decision is affirmed.

Authors

John Villasenor

Publication: Forbes

Image Source: © Jose Luis Magaua / Reuters

The Case for Confirming District Court Judges

Russell Wheeler — Tue, 18 Sep 2012 00:00:00 -0400

The accepted wisdom on Congress is that the presidential campaign is likely to crowd out most real work until after Nov. 6, when all its focus abruptly changes to the fiscal cliff.

There is, though, one important noncontroversial matter that the Senate should take up now — as have previous Senates at this time: confirming district judges.

A government that can't do its mundane business is surely unlikely to be able to deal with more controversial problems. History shows that the Senate should be able to confirm a respectable number of long-standing district court nominations before Election Day — certainly before adjournment. If it cannot, this may signal that the past four years of delayed and confrontational nominations have not been an aberration but represent the new normal of district court confirmations.

Sixty-one of the nation's 673 lifetime appointment district court judgeships are vacant. President Barack Obama has submitted nominees to fill 24 of the vacancies. Seventeen of the 24 have cleared the Senate Judiciary Committee and are awaiting final action by the full Senate.

Read the full piece at Politico »

Authors

Russell Wheeler

Publication: Politico

Image Source: © Chip East / Reuters

Why Wasn't it Africa that Found Charles Taylor Guilty?

Mwangi S. Kimenyi and John Mukum Mbaku — Thu, 26 Apr 2012 14:12:00 -0400

For far too long, dictators and warlords who have inflicted extensive atrocities on the African people have gone unpunished. This is true when one looks at the scale of crimes against humanity committed across the continent in the recent past in places such as Sudan, Rwanda, the Democratic Republic of the Congo, Liberia and Sierra Leone.

But this record of impunity is changing, thanks to the long arm of international justice. Increasingly, Africans suspected of committing crimes against humanity are under investigation by the international criminal court and a few have already been charged and are awaiting trial. International intervention has far-reaching implications on the continent, especially regarding governance and reform of judicial systems.

On Thursday Charles Taylor, warlord turned president of Liberia, was convicted of aiding and abetting war crimes by the Sierra Leone special court in The Hague. The court was established in 2002 to try those who bore the greatest responsibility for crimes against humanity during the prolonged conflict in Sierra Leone. Taylor was convicted in connection with offences including murder, rape, sexual slavery and using child soldiers. It was alleged that Taylor was responsible for these crimes through his support of rebels fighting in Sierra Leone. The prosecutor alleged that Taylor was personally responsible for these crimes because he was involved in the planning, instigating and commissioning but the court found him not guilty of direct personal responsibility for the atrocities carried out by rebels.

Read the full article on The Guardian »

Authors

Publication: The Guardian

Image Source: © Finbarr O'Reilly / Reuters

Judicial Confirmations: What Thurmond Rule?

Russell Wheeler — Mon, 19 Mar 2012 12:44:00 -0400

In this new paper, Russell Wheeler analyzes use of the so-called “Thurmond Rule”—the historical practice of the Judiciary Committee and the Senate slowing down the pace or completely stopping the judicial nominations process in the run-up to a presidential contest—in the past four election cycles.

Confirmations in the four most recent presidential election years, especially for district nominees, have been more robust than most formulations of the Thurmond rule would have predicted. Those experiences, though, may have little predictive value for 2012. The shifting landscape of judicial nominations and confirmations, as described in January, makes it risky to look to the past to predict how the increasingly contentious confirmation battles will play out in 2012. Being a “consensus nominee” may have been a ticket to confirmation in earlier years, but it’s difficult even to define the term in 2012, when nominees with little if any opposition still have a hard time getting floor votes. And Republican senators’ objections to the president’s January recess appointments to some executive branch positions may also affect the judicial confirmation process.

Nevertheless, the 2004 Senate—with a 52-member Republican majority—confirmed district judge nominees at about the same rate as the Senate had confirmed district nominees in 2001-03—in the mid-80 percent range. Based on that precedent, it’s tempting to say that the 2012 Senate—with essentially a 53 member Democratic majority—will confirm district judges at at least the same rate as the Senate had confirmed district nominees in 2009-2011—in the mid-70 percent range.

Downloads

Judicial Confirmations: What Thurmond Rule?

Authors

Russell Wheeler

Image Source: Tom Grill

Vladimir Putin and the Role of Law in Russia

William Partlett — Tue, 28 Feb 2012 13:08:00 -0500

Vladimir Putin has been busy -- he recently published his seventh pre-election article in two months. These lengthy articles cover a dizzying range of issues, from ethnic integration to foreign policy. As Mr. Putin’s re-election (or “reappointment” as some have derisively commented) looms, these articles provide a tantalizing window into what to expect from Mr. Putin’s impending third term as president. Some are predictable: Mr. Putin will continue to assert Russia’s interests in the face a dangerous global order and enact policies that will ensure Russia’s stable democratic development. One theme, however, stands out as potentially rather different: the surprising emphasis that Mr. Putin – himself a trained lawyer – places on the role of law in political and economic change.

Reliance on the law has typically been short-lived amongst Russian leaders. From Lenin to Yeltsin, Russian leaders have strategically used legal rhetoric but have ultimately jettisoned legal limitations in the relentless pursuit of their political and economic goals. Mr. Putin’s emphasis on what he has previously called the “dictatorship of law” hints at a different approach, explicitly drawing on a deep tradition of conservative Russian legal thought that begins with the nineteenth century philosopher Boris Chicherin and that persists today in the current chairman of the Russian Constitutional Court, Valery Zorkin. This legalistic form of political thought helped underpin the abolition of serfdom and the constitutional movement of the late Tsarist period. The promise of these reforms was ultimately unfulfilled. Will Mr. Putin finally fulfill this promise?

A Dictatorship of the Law

In his opening article on January 17, Mr. Putin proclaims that the Russian state will not allow itself to be swept up in growing forces of instability, but instead will seek to control these forces by actively “setting the rules of the game.” He continues: Russia will “muscle up” by “being open to change” through state sanctioned procedures and rules.

In the domestic arena, he writes, a focus on legality will help Russia avoid its “recurring problem” of straining for “sudden change” and promote “well thought-out, considered reforms.” In his article entitled “Democracy and the Quality of Government,” he emphasizes this point with a quote from a late Tsarist constitutional thinker, Pavel Novgordtsev, who warned that “the proclamation of liberty and universal suffrage” do not “magically” lead to democracy but instead toward “oligarchy or anarchy.” Mr. Putin therefore demands that the opposition employ “democratic” – and here he means state-sanctioned – means for change. To encourage this kind of lawful dispute resolution, he proposes expanding the rights of public organizations to sue government officials and publicizing court proceedings. He also argues that the Russian state should act in a law-based manner. The Russian government almost collapsed in the 1990s, he argues, by yielding to “the temptation of illusions” and a lawless “fortune favors the brave” attitude. But since his rise to power in 2000, adherence to clear rules of the game has helped secure Russia’s stable development in a “democratic, constitutional manner.” Adherence to the law, he argues, must continue or Russia’s democratic development will be put at risk.

In the international realm, Mr. Putin argues that the “basic principles of international law” are under attack. In his most recent article entitled “Russia and the Changing World,” Mr. Putin argues that certain countries – insinuating the United States and its NATO allies – are violating “international law and state sovereignty” under the banner of universal human rights. This disrespect for international law is inevitably “more costly than anticipated.” Mr. Putin’s cautionary tale is Libya, where he argues that NATO’s export of “gunship democracy” in the name of humanitarian principles has fostered an even worse outcome: lawlessness and anarchy. This “Libyan scenario,” he argues, must not be allowed to repeat itself or it will lead to a moral and legal void in the international system where every country must seek nuclear weapons to ensure its security. For Mr. Putin, international conflict must be resolved through the United Nations and be grounded in its key founding principle: state sovereignty.

From Putinism to Legalism?

What evidence exists that Mr. Putin’s recent bout of legalism is more than just a convenient strategy to limit both U.S. power and the burgeoning opposition movement? Mr. Putin has paid far more attention to legal reform than his predecessor Boris Yeltsin. Upon taking over the presidency in 2000, Mr. Putin’s first three major policy speeches addressed the need for legal reform. He has followed through on this emphasis, making considerable progress toward updating the contradictory Russian legal system, including pushing through a new criminal code. Furthermore, he has been surprisingly open to implementing human rights norms from the European Convention on Human Rights in the Russian courts. In fact, under Putin, decisions by the European Court of Human Rights – where cases against the Russian state make up more than a quarter of the docket – have been implemented successfully (with some notable exceptions). Perhaps the best example is Russia’s permanent ban on the death penalty to bring its law in line with European standards.

These limited steps, however, do not suggest that Mr. Putin is open to a legal system that might check government power. Instead, Mr. Putin’s regime has followed the Russian tradition of using law to punish its opponents. Two prominent Constitutional Court judges recently lost their seats for accusing the Putin regime of infringing on the independence of the judiciary. Finally, human rights violations by the Russian state are still rampant: Over a quarter of all cases in the European Court of Human Rights are filed against the Russian state.

As he eyes another six years in power, only Mr. Putin knows whether he will expand on these limited steps toward a law-based state. Strengthening legality by seriously expanding access to courts and encouraging real judicial independence could help Mr. Putin adapt to the turbulent and unpredictable years to come. Furthermore, it could also help him achieve his stated goals of decreasing Russian corruption and boosting foreign investment. In deciding whether his appeals to legalism are cynical or real, Mr. Putin should heed the advice of Russia’s leading legal philosopher: “The moderate direction can only find its way when it is linked with the government. If the government does not support it, it must give way to another approach."

Authors

William Partlett

Image Source: © RIA Novosti / Reuters

The Impact of Density and Diversity on Reapportionment and Redistricting in the Mountain West

David F. Damore — Thu, 26 Jan 2012 00:00:00 -0500

Executive Summary

During the first decade of the 21^st century the six states of the Mountain West — Arizona, Colorado, Idaho, Nevada, New Mexico, and Utah — experienced unprecedented political and demographic changes. Population growth in all six states exceeded the national average and the region is home to the four states that underwent the largest population gains between 2000 and 2010. As a consequence, the region is now home to some of the most demographically diverse and geographically concentrated states in the country— factors that helped to transform the Mountain West from a Republican stronghold into America’s new swing region. This paper examines the impact that increased diversity and density are exerting on reapportionment and redistricting in each Mountain West state and assesses the implications that redistricting outcomes will exert both nationally and within each state in the coming decade. Nationally, the region’s clout will increase due to the addition of three seats in the House of Representatives (one each in Arizona, Nevada, and Utah) and electoral contexts in Arizona, Colorado, Nevada, and New Mexico that will result in competitive presidential and senate elections throughout the decade. At the state level, the combination of term limits, demographic change, and the reapportionment of state legislative seats from rural to urban areas will alter the composition of these states’ legislatures and should facilitate the realignment of policy outcomes that traditionally benefitted rural interests at the expense of urban needs.

Introduction

As reapportionment and redistricting plans across the 50 states are finalized and candidate recruitment begins in earnest, the contours of the 2012 election are coming into focus. One region of the country where reapportionment (redistributing seats to account for population shifts) and redistricting (drawing boundaries for state legislative and congressional districts) are likely to have significant consequences in 2012 and beyond is in the six states of the Mountain West: Arizona, Colorado, Idaho, Nevada, New Mexico, and Utah. Driven by explosive growth during the past decade, the Mountain West is now home to some of the most demographically diverse and geographically concentrated states in the country. As a consequence, the region has increasingly become more hospitable to Democrats, particularly Colorado, Nevada, and New Mexico and to a lesser extent Arizona. In this paper, I examine how these changes are affecting reapportionment and redistricting across the region. Specifically, after summarizing some of the key regional demographic and political changes, I offer a brief overview of the institutional contexts in which the maps are being drawn. This is followed by an assessment of outcomes in each state. I conclude with a discussion of the national and state level implications that reapportionment and redistricting are likely to engender across the Mountain West.

A Region in Transition

Between 2000 and 2010 population growth in all six Mountain West states outpaced the national average of 9.7 percent and the region contains the four states that experienced the largest percent population increase in the country (Nevada = 35.1 percent; Arizona = 24.6 percent; Utah = 23.8 percent, and Idaho = 21.1 percent).[i] As a consequence, Nevada and Utah each gained their fourth seats in the House of Representative and Arizona was awarded its ninth. Beginning with the 2012 election, the Mountain West will have 29 U.S. House seats (Idaho has two House seats, New Mexico has three, and Colorado has seven) and 41 Electoral College votes.

Across the Mountain West, population growth was concentrated in the region’s largest metropolitan statistical area (MSA).[ii] Most notably, the Las Vegas metro area is now home to nearly three out of four Nevadans — the mostly highly concentrated space in the region. In Arizona, roughly two-thirds of the population now resides in the Phoenix MSA, which grew by nearly 30 percent. The Albuquerque MSA experienced the largest overall increase as a share of total population (nearly 25 percent) and now contains 44 percent of New Mexico’s population. And while Idaho remains the state in the region with the least dense population, growth in the Boise MSA significantly outpaced that state’s overall population gain and nearly 40 percent of all Idahoans reside in and around Boise. On the other end of the spectrum are the Salt Lake City and Denver MSAs, which as shares of the Colorado and Utah populations decreased slightly from 2000. Still, better than half (50.57 percent) of all Coloradoans live in Denver and its suburbs and around 41 percent of Utah’s population is concentrated in the Salt Lake City MSA.

In addition to further urbanizing the region, the prior decade’s growth continued to transform the region’s demographics as all six Mountain West states are now more ethnically diverse as compared to a decade ago.[iii] The largest changes occurred in Nevada where the minority population increased by over 11 percent and now better than 45 percent of Nevadans are classified as non-white. While the bulk of this growth was among Hispanics, whose share of the population increased by 7 percent and are now 26.5 percent of all Nevadans, the Silver State also recorded large increases among Asian and Pacific Islanders. Arizona experienced similar increases as that state’s minority population mushroomed from 36.2 percent to 42.2 percent with Hispanics now constituting 30 percent of the population. In Colorado, the minority population increased by 3.5 percent to 30 percent. Nearly all of this change was caused by an increase in Hispanics, who now constitute 20.7 percent of the state’s population. New Mexico continues to be the Mountain West’s most diverse state as nearly three out of five New Mexicans are minorities and the state contains the region’s largest Hispanic population (46 percent). And while Idaho and Utah remain overwhelmingly white, both states’ non-white populations grew at levels similar to Colorado. Idaho is now 16 percent non-white (including a Hispanic population of 11.2 percent) and nearly one in five Utahans is a minority. Between 2000 and 2010, Hispanics increased by 4 percent to constitute 13 percent of Utah’s population.

Politically, these changes helped to create competitive electoral contexts across the region. Indeed, with the obvious exceptions of Idaho and Utah, the Mountain West is now more hospitable to the Democratic Party than it was in 2000. In particular, Democrats were able to make significant gains in Colorado, Nevada, and New Mexico and effectively flipped those states from Republican leaning in 2000 to Democratic leaning in 2010. In Arizona, the Democratic performance was highly variable and moved in near perfect tandem with the broader national political environment. At the same time, the downturn in Democratic support in 2010 indicates that the party has not yet consolidated its gains. Riding a favorable 2010 macro-environment, Mountain West Republicans gained one governorship (New Mexico), seats in ten of the region’s 12 state legislative chambers, and seven House seats (out of a total of 26 in the region).[iv] Thus, heading into the 2011 redistricting cycle, Republicans control the executive and legislative branches in Arizona, Idaho, and Utah and there are no Mpuntain West states where the Democrats have unified control as the partisan composition of the Colorado legislature is divided and Nevada and New Mexico have Republican governors and Democratic legislatures.

The Institutional Context

Because of variation in the institutional arrangements governing how each state approaches reapportionment and redistricting, the impact that the demographic and political changes outlined above are exerting on map drawing differs across the region. To be sure, there are a number of commonalities across the states such as requirements of equally populated U.S. House districts, minimum population variation for state legislative districts, and boundary lines that are compact, contiguous, and maintain communities of interests.

Beyond these constraints, mapmakers across the region are afforded different degrees of latitude in how they go about doing their work. For instance, in Nevada and New Mexico, the residency of incumbents can be considered, while Idaho forbids it. Idaho allows for twice as much inter-district population variation for state legislative districts as Colorado and New Mexico, and Idaho only allows state legislative districts to cross county lines if the counties are linked by a highway. Arizona and Idaho mandate that two lower chamber districts be nested within the boundaries of a state senate seat, while Colorado, Nevada, New Mexico, and Utah do not. Nevada also allows for multi-member member state legislative districts. Lastly, Arizona’s redistricting plans must be pre-cleared by the U.S. Department of Justice. While Arizona is the only state in the region subject to preclearance, protection of minority voting rights also has been a point of contention in prior redistricting cycles in New Mexico.

The Mountain West states also vary in terms of who oversees the redistricting process. State legislators control the process in Nevada, New Mexico, and Utah, while Arizona and Idaho use commissions. In Colorado, the General Assembly draws the map for the state’s seven U.S. House seats, while a commission oversees the drawing of state legislative maps. For the three states that use commissions for either all or part of their processes, commission size and composition differs significantly and only the Arizona Independent Redistricting Commission (AIRC) is charged with drawing maps that are competitive.[v]

However, the most significant constraint on reapportionment and redistricting in the Mountain West is the small size of the region’s state legislatures.[vi] The mix of small chambers, increased urbanization, and large geographic spaces means very large and increasingly, fewer and fewer stand- alone rural districts. This dynamic also helps to explain the region’s history of malapportionment that often allocated seats by county regardless of population.[vii]

State Summaries

Based upon the overview presented above, expectations about the general contours of reapportionment and redistricting in the Mountain West are fairly straightforward: the clout of urban and minority interests will increase and to the degree that those factors benefit the Democrats, the Democrats should gain some partisan advantage. Realizing these outcomes, however, has proven to be less than amicable. With the exception of Utah, all other states in the region have had various aspects of their processes litigated, and map drawing for Colorado’s U.S. House seats and all of Nevada and New Mexico’s redistricting is being completed in state courts. Below, I summarize the status of reapportionment and redistricting in each state.

Arizona

Beginning its work amid criticism of its composition, calls for its abolishment, and an investigation by the Arizona attorney general, the voter-initiated Arizona Independent Redistricting Commission (AIRC) has struggled to balance the conflicting demands of drawing competitive districts with the protection of minority voting rights. The commission’s work has been further hindered by Republican Governor Jan Brewer’s unsuccessful attempt to impeach the commission’s nonpartisan chair. In addition, Arizona has filed a lawsuit in federal court challenging the state’s preclearance requirement.

Republican attempts to undermine the AIRC stem from the fact that given unified Republican control of the Arizona governorship and legislature, Republicans would otherwise be in a position to implement a partisan gerrymander. At the same time, the GOP’s present dominance is partially an artifact of the 2001 redistricting. To gain preclearance in 2001, the AIRC’s maps created a large number of majority-minority state legislative districts and minority-friendly U.S House seats by packing Democratic voters into these districts. In so doing, Democratic support in the surrounding districts was weakened; allowing Republicans to more efficiently translate their votes into seats.[viii] Thus, despite a slight partisan voter registration advantage (4.35 percent as of July 2011), Republicans presently hold more than two-thirds of the state legislative seats and five of eight U.S. House seats.

Given Arizona’s growth patterns between 2000 and 2010 coupled with the AIRC’s charge of creating competitive district, drawing a map as favorable to the GOP in 2011 is virtually impossible unless the size of the Arizona legislature is increased. Still, in order to protect minority voting rights, Arizona’s final maps are likely to tilt in favor of the GOP — just not to the degree that they have in the past. In particular, the elimination and consolidation of rural state legislative districts and a more urban orientation for Arizona’s nine U.S. House districts should provide the Democrats with electoral opportunities that will only increase as Arizona’s population continues to diversity and urbanize.

Colorado

As noted above, Colorado uses a commission (the Colorado Redistricting Commission) for redistricting state legislative seats and the Colorado General Assembly draws the maps for the state’s seven U.S. House seats. Neither process has gone smoothly. For the state’s seven U.S. House seats, the Democratic-dominated state senate and the Republican-controlled lower chamber failed to find common ground after exchanging two rounds of maps. Because Democratic governor John Hickenlooper refused to call a special session, redistricting of Colorado U.S. House seats was completed in state court. After a good deal of legal wrangling, the Colorado Supreme Court upheld a map favored by Colorado Democrats that creates two safe Republican districts, one safe Democratic district, and four districts where neither party’s registration advantage exceeds 4 percent. As a consequence, Colorado will feature a number of competitive U.S. House elections throughout the coming decade.

Map drawing for state legislative seats by the CRC has also been hindered by partisanship. Hoping to break a partisan stalemate, in late summer the nonpartisan chair of the CRC offered maps that combined parts of prior Democratic and Republican proposals to create thirty-three competitive seats (out of a total of 100) and twenty-four seats with Hispanic populations of 30 percent or more. After being approved by the CRC with some Republican dissents, the plan was rejected by the Colorado Supreme Court, which must sign-off on the CRC’s plans before they can be implemented. By attempting to draw more competitive maps — a criterion that the CRC is not obligated to consider – the CRC’s maps undermined its charge of producing districts that keep communities of interest intact. The CRC’s second set maps, which were widely viewed as favoring the Democrats, were upheld by the Colorado Supreme Court.

Idaho

While partisan considerations have loomed large in the reapportionment and redistricting processes in Arizona and Colorado, in Republican-dominated Idaho the main points of contention have been spatial. Indeed, because of the difficulty of satisfying a constitutional requirement limiting county splits and a state law constraining how geographic areas can be combined, the Idaho’s Citizen Commission for Reapportionment (ICCR) failed to reach an agreement before its constitutionally imposed deadline. After sorting through a number of legal and constitutional questions, a second set of commissioners were impaneled and completed their work in less than three weeks. Given Idaho’s partisan composition, the final maps are a regional anomaly as they benefit the GOP while being somewhat more urban oriented. This was accomplished by moving rural Republican voters into urban Democratic state legislative districts and adjusting the lines of Idaho’s 1st House district to shed roughly 50,000 citizens. At the same time, because of Idaho’s strict constraints on how cities and counties can be divided, the map for the state legislature paired a number of incumbents in the same district and one district contains the residences of five incumbents, setting up a number of competitive primary elections.

While growth patterns and demographic and partisan change in Nevada between 2000 and 2010 insured a redistricting process that would favor Democrats, Nevada Republicans sought to delay this inevitability as long as possible. The state’s Republican governor, Brian Sandoval, vetoed two sets of maps passed by the Democratic controlled legislature and Sandoval refused to call a special session to complete redistricting. Instead, he and his party hoped for a better outcome in state court. Despite drawing a supervising judge who was the son of a former Republican Governor, Nevada Republicans fared no better in state court. Ultimately, the process was turned over to three special masters who rejected Nevada Republicans’ claim that section 2 of the Voting Rights Act required a majority Hispanic U.S. House district.[ix] As a consequence, two of Nevada’s U.S. House seats favor Democrats, one is safely Republican, and the fourth is a swing district. In the Nevada legislature the representation of urban interests will increase as parts of or all of forty-seven of the sixty-three seats in the Nevada legislature are now located in the Democratic stronghold of Clark County.

New Mexico

The 2011 process in New Mexico has essentially been a rerun of the gridlock that engulfed the state’s 2001 redistricting debate. Once again, the Democrats sought to use their control over both chambers of the New Mexico legislature to preserve their majorities and draw the boundaries for the state’s three U.S. House seats in manner favorable to the party. However, because of bickering among Democrats the legislature failed to approve its map for the state’s three U.S. House seats prior to the end of the special session and the plans for the state legislature that were passed on party line votes were vetoed by Republican governor Susana Martinez. Thus, once again, New Mexico’s divided state government coupled with the state’s history of litigating redistricting plans (in 2001 map drawing and court battles cost the state roughly $3.5 million) means that redistricting will be completed in state court. While the Republicans may be able to gain some concessions through the courts, New Mexico is the most Democratic state in the Mountain West and, as noted above, the state’s growth during the prior decade was concentrated in heavily Democratic Albuquerque and its suburbs. Thus, as in 2001, the likely outcome in New Mexico is a redistricting plan that will be favorable to the Democrats and weaken the influence of rural interests.

Utah

Utah is the only state in the region where conditions exist (e.g., unified partisan control in a non-commission state) for the implementation of a partisan gerrymander. However, to accomplish this end required the slicing and dicing of communities and municipalities particularly those in and around the state’s urban center. Most notably, in drawing the state’s four U.S. House seats, Republicans divided the Utah’s population center (Salt Lake City County) into four districts by combining parts of the urban core with rural counties - a plan that, not coincidentally, cracks the only part of the state where Democrats are able to compete. Similarly, maps for state legislative districts increase the number of seats that favor the GOP and, in many instances, protect incumbents from potential primary challengers by dividing communities into multiple districts. Democrats in Utah are so depleted that they were unable to get the Republicans to even agree to include recognition and protection of minority communities of interest to in Utah’s redistricting guidelines. Thus, despite constituting nearly 20 percent of the state’s population, minorities received no consideration in Utah’s 2011 redistricting.

Implications and Conclusions

Reapportionment and redistricting are often regarded as the most political activities in the United States; an expectation that is certainly being realized across the Mountain West. In the swing states where legislators draw the maps (for example, Colorado, Nevada, and New Mexico) but where state government is divided, partisan considerations loomed large, causing all of these states to conclude all or parts of their redistricting processes in the courts. The conflicts between Arizona’s preclearance requirement and the AIRC’s commitment to drawing competitive districts have partisan consequences as well. In one-party Idaho and Utah, the politics of space were at issue. Geographic constraints on district boundaries imposed through statute and the Idaho constitution ensured that more rural seats were preserved and that the growing influence of urban interests will be checked. In Utah, Republicans moved in the opposite direction by carving up the very communities from which they are elected in order to implement a partisan gerrymander.

Another school of thought, however, argues that the most typical redistricting outcome is not partisan gain or loss, but an uncertainty that shakes up the state political environment and facilitates political renewal. In the case of the Mountain West, there is evidence to support that claim as well. The biggest source of uncertainty will continue to be growth. While the economic downturn has slowed migration to the region, the Mountain West states remain poised to keep expanding in a manner that will further concentrate and diversify their populations. A second source of uncertainty is the region’s large number of nonpartisans. While redistricting is often framed as a zero-sum game played between Democrats and Republicans, the electoral hopes for either party hinges on its ability to attract the support of the region’s expanding nonpartisan demographic.[x]

At the state level, with the exception of Idaho, the most significant consequence will be a reduction in rural influence. The combination of term limits in Arizona, Nevada, and Colorado, small legislative chambers, and fast growing urban populations will continue to decrease the number of entrenched rural legislators and the number of stand-alone rural districts. Consequently, urban interests should be positioned to align state policy with demographic reality. The void created by the demise of rural legislators will be filled by minorities, particularly Hispanics. To date, the increased political activism of Hispanic communities across the region has primarily benefited Democrats; helped in no small part by the hard-line rhetoric and policies championed by some Mountain West Republicans.[xi] More generally, depending on growth patterns, by 2020 Nevada and perhaps Arizona may join New Mexico as states with majority-minority populations. Thus, with or without Section 2 of the Voting Rights Act, minority legislators, primarily Hispanics, will increase their ranks significantly. The only question is whether all of these politicians will be taking office with a “D” next to their names or whether some will be elected as Republicans.

Nationally, the impact of reapportionment and redistricting is mixed. Certainly, the addition of three U.S. House seats after the 2010 census will give more voice to regional issues in Washington D.C. At the same time, because the Mountain West’s House delegation will continue to be split along partisan lines and many of the region’s competitive House seats will rotate between the parties throughout the decade, it may be difficult for any but the safest Mountain West representatives to accrue the requisite seniority to become players in the House. Also, because of pending retirements in Arizona and New Mexico, a successful 2010 primary challenge in Utah, and a resignation in Nevada, the region’s influence in the U.S. Senate is likely to decline in the near term. Indeed, after the 2012 election the only senators from the region who will have served more than one term will be Nevada’s Harry Reid, Arizona’s John McCain, Idaho’s Mike Crapo, and Utah’s Orrin Hatch (presuming a successful 2012 reelection).

Thus, the arena where the region is likely to garner the most attention is in the coming decade’s three presidential elections. Colorado, Nevada, and New Mexico were all battleground states in 2004 and 2008, with Republican George W. Bush narrowly winning all three in 2004 and Democrat Barack Obama flipping them blue in 2008 by wider margins. Obviously, Idaho and Utah will remain out of reach for the Democrats in statewide contests for some time. However, Arizona is likely to become the region’s fourth swing state in the near future. Thus, continued investment in Arizona and throughout the region will allow the Democrats to further expand the number of Mountain West states in play while forcing the GOP to spend resources to defend turf that it once could safely call its own.

Endnotes
[i] U.S. Census Bureau, “State and County Quick Facts,” August 2011 (http://quickfacts.census.gov/qfd/index.html ).

[ii] U.S. Census, “American Fact Finder,” August 2011 (http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml ).

[iii] U.S. Census Bureau, “State and County Quick Facts,” August 2011 (http://quickfacts.census.gov/qfd/index.html ).

[iv] Despite close elections in Colorado and Nevada, none of the region’s U.S. Senate seats changed parties in 2010.

[v] The Arizona Independent Redistricting Commission (AIRC) consists of five appointed members: four partisans chosen by the party leaders of each legislative chamber and a nonpartisan who is chosen by the other four members and serves as chair. The Colorado Redistricting Commission (CRC), which oversees redistricting for state legislative districts, consists of 11 members: four of whom are picked by the party leaders of the General Assembly; three who are selected by the governor; and four who are chosen by the Chief Justice of the Colorado Supreme Court. The Idaho Citizen Commission for Reapportionment (ICCR) consists of six members, four of whom are chosen by party leaders of the Idaho Legislature and one member chosen by each of the state chairs for the Democratic and Republican parties.

[vi] Excluding Nebraska (because of its unicameral structure), the average size of the lower and upper houses of the other 49 state legislatures are 110 and 39.22 respectively. Only the 42-member New Mexico Senate exceeds the national average chamber size. The largest lower house in the region, Utah’s 75-seat House of Representatives, is 35 seats below the national average.

[vii] Legislative size, however, is not immutable. To increase the size of the legislatures in Colorado, Idaho, and New Mexico would require amending those states’ constitutions. The lower chamber of the Utah legislature could be expanded as it is presently below its constitutional cap. Arizona and Nevada set the sizes of their legislatures by statute.

[viii] In this regard, redistricting outcomes in Arizona are similar to those in another Section 2 region, the South. In both instances, the provisions of the Voting Rights Act have the perverse effect of increasing symbolic representation for minority groups while decreasing the number of legislators who may be receptive to minority interests. See, Kevin A. Hill, “Congressional Redistricting: Does the Creation of Majority Black Districts Aid Republicans?” Journal of Politics (May 1995): 384–401, and David Lublin, The Paradox of Representation: Racial Gerrymandering and Minority Interests in Congress (Princeton University Press, 1999).

[ix] Governor Sandoval and Republicans in the legislature claimed that Section 2 of the Voting Rights Act requires the use of race as the basis for drawing a Hispanic U.S. House seat — a position clearly at odds with the holding in Shaw v. Reno (509 U.S. 630, 1993), which allows race to be taken into consideration but does not allow it to be the predominant factor. Democrats and many Hispanic activists countered that packing Hispanics into a single House district would marginalize their influence in Nevada’s other three U.S. House districts and because white voters in Nevada do not vote as a block as evidenced by the fact that Hispanic candidates won eight state legislative seats, the attorney generalship, and the governorship in 2010 without such accommodations, race-based redistricting in Nevada is unnecessary

[x] At the time of the 2010 election, nonpartisan registrants constituted over 30 percent of Arizona voters, 26 percent of the Colorado electorate, and around 15 percent of voters in Nevada and New Mexico (Idaho and Utah do not report partisan registration figures)

[xi] For example, Arizona’s 2010 Support Our Law Enforcement and Safe Neighborhoods Act (SB 1070) and Utah’s 2011 Utah Illegal Immigration Enforcement Act (HB497).

Downloads

The Impact of Density and Diversity on Reapportionment and Redistricting in the Mountain West

Authors

David F. Damore

Image Source: © Adam Hunger / Reuters

The International Criminal Court’s Ruling and Kenya’s Politics and Prospects for Peace

Anne W. Kamau and Mwangi S. Kimenyi — Fri, 20 Jan 2012 15:26:00 -0500

On Monday, January 23, the International Criminal Court (ICC) will deliver a ruling that will radically alter the Kenyan political landscape and greatly impact ethnic relations in the country. The ICC will either confirm or dismiss the charges brought against the suspects behind Kenya’s post-election violence in 2007-2008. Whatever the decision, the ruling by the ICC will shape the future of the country significantly. The ICC process is expected to help end the culture of impunity in Kenya. However, there is a real chance that the ruling will have negative consequences on the future of Kenyan politics and peace in the country. How Kenya, Africa’s regional organizations and the international community respond to next Monday’s ruling will be critical.

Following the 2007-2008 post-election violence in Kenya, and the parliament’s failure to establish a credible tribunal to investigate and try those suspected of instigating the violence, the case was brought to the International Criminal Court in the Hague. The ICC’s pre-trial chamber named six suspects bearing the greatest responsibility for the violence in Kenya. These included senior politicians -William Samoei Ruto (currently a member of parliament and former cabinet minister), Henry Kiprono Kosgey (former industrialization minister and current member of parliament) and Uhuru Muigai Kenyatta (currently deputy prime minister and finance minister); senior civil servants – Ambassador Francis Muthaura (permanent secretary and head of the civil service and the office of the president), and Major Hussein Ali (former commissioner of police and currently postmaster general); and radio personality, Joshua Arap Sang.

The first group of suspects charged by the ICC (Ruto, Kosgey and Sang) has been accused of perpetrating violence in Kenya’s Rift Valley, which led to the murder, torture, persecution, and forceful deportation of members of the non-Kalenjin ethnic groups, including the Kikuyu, Luyha, Kamba and Kisii. Members of these ethnic groups were targeted for their support of the Party of National Unity (PNU) and their opposition against the Orange Democratic Movement (ODM). Sang has been accused of instigating criminal and violent activities against these groups through his radio broadcasts.

The other three suspects (Ali, Muthaura and Uhuru Kenyatta) have been accused of supporting attacks of non-Kikuyus in Nakuru and Naivasha.The violence against non-Kikuyus was apparently in retaliation of the attacks of non-Kalenjins in the other parts of the Rift valley. Specifically, they were accused of financing the illegal criminal gang, Mungiki. In addition, it was alleged that Muthaura and Ali could have prevented the violence and by not performing their tasks, or through neglect, they contributed to the crimes. Both groups have denied the charges and have argued that there is no evidence connecting them to these crimes. For Ruto and Kenyatta, who are both aspiring to be Kenya’s next president, they argue that the allegations against them are just a ploy to remove them from participating in the elections in 2012.

While it is hard to predict the court’s final ruling, we expect four possible scenarios:

Scenario 1: The charges against all are confirmed and the case proceeds to full trial

A decision to confirm the charges against all the suspects would have far reaching consequences for Kenya. With such a ruling, the ICC would be sending a very strong message to Kenyans on serious consequences of engaging in and inciting election violence. For the victims, it would be a big step in the healing process. This decision would also send a strong message to other African countries about the powerful role that international organizations can play in their countries.

A confirmation of the charges against Uhuru and Ruto would mean the veritable end of their political careers. While it would not necessarily imply that they would be found guilty when their cases go for a full hearing, their candidacies in the 2012 Kenyan presidential elections would be over. While there was never any guarantee that either of them would have won the presidency without these charges hanging over their heads, a ruling confirming the charges for crimes against humanity would mean that the two would be viewed with suspicion by the Kenyan electorate. In addition, Chapter six of Kenya’s new constitution on “leadership and integrity” sets standards for office bearers and a ruling that confirms the charges against the two would automatically disqualify them from running for president in the next election.

The biggest beneficiary under this scenario would probably be Prime Minister Raila Odinga who is currently the front runner and has not been implicated in the post-election violence. But the ruling could also present challenges to Odinga if new coalitions were to form bringing together supporters of Kenyatta and Ruto. Other possible beneficiaries of this outcome are the leaders of the PNU alliance fronted by Vice-President Kalonzo Musyoka and the Minister for Internal Security George Saitoti. With Kenyatta and Ruto pushed out of the political scene, new alliances would likely form that would probably increase ethnic polarization. But as Kenya’s history has shown, in politics there are no permanent enemies and it is likely that the ICC ruling could result in very strange alliances.

Another unfortunate result of such a ruling from the ICC could be the escalation of ethnic tensions. The ethnic groups most likely to be involved would be the Kikuyus, Kalenjin and Luos, with most of the anger directed against Luos, although the initial violence during in 2007 and 2008 was between Kikuyus and Kalenjins.

Scenario 2: Charges against some are confirmed

Probably the most difficult outcome for Kenya to manage would be one where the charges are confirmed for some but not others. This decision would most likely fuel tensions between ethnic groups, particularly if the charges are only confirmed for the suspects from one ethnic group. Those with charges confirmed against them would likely claim unfairness against their ethnic group and this might not only incite ethnic hostility but also trigger widespread violence across the country. Although there has been remarkable progress in peace-building in Kenya’s Rift valley after the 2007-2008 post-election violence, a decision that is seen to favor members of one ethnic group could be extremely damaging to improvements achieved since 2008. Such a decision would also change and shift political alignments and allegiances, largely along ethnic lines.

Scenario 3: Charges against all suspects are dropped

The other possible outcome is that the charges against all the suspects are dropped. Such a decision would give credence to the victimization claim that the suspects have been putting forth. The decision would elicit a lot of anger from the victims of post-election violence and from civil society in Kenya. It would see a culture of impunity entrenched in Kenya, where perpetrators of violence and other crimes go unpunished. The whole ICC process and credibility of the prosecutor would be severely damaged. However, this decision is unlikely.

Scenario 4: Charges against all suspects are not confirmed, but more time is given for evidence gathering or the charges are amended

If the ICC deems that the prosecutor may not have gathered enough credible evidence, then it may require withholding a decision on the confirmation of charges until more evidence is gathered. The court could also decide to have the charges against the suspects amended. While such a ruling may not necessarily trigger violence, it would certainly impact the political fortunes of the suspects. There would be uncertainty since court hearings could drag on until after election day, which could disqualify the suspects from participating as presidential candidates.

Preparing for the Worst while Hoping for the Best

The Kenya government, regional African organizations and the international community should be prepared for the worst. The immediate reaction to the ruling by the ICC could very well be an eruption of violence that could spread even beyond the areas impacted during the last general election. Kenya’s government must be prepared to protect its people and property with all the means necessary.

The African Union’s panel of eminent African personalities led by Kofi Annan must be prepared to work with the Kenyan people to forge unity across the country. Whatever the ICC’s decision, the Kenyan government and leadership must be prepared to handle the serious possibility of ethnic hostility and violence.

For President Mwai Kibaki and Prime Minister Raila Odinga—the two individuals whose campaigns for president in 2007 resulted in the post-election violence— it will be a time to show leadership, go beyond tribal loyalties, and prioritize first and foremost the future of Kenya and its people.

In the end, there will be no winners from the ICC process. It is an unfortunate process born out of an even more unfortunate crisis. The lesson to Kenyans is that building strong institutions is the only way to prevent future problems and crises like the post-election violence of 2007 and 2008. Furthermore, local institutions are best suited to deal with perpetrators of electoral related violence.

References:

Pre-Trial Chamber II: International Criminal Court Public document NO: ICC-01/09-01/11 and NO: ICC-01/09-02/11
Republic of Kenya, The Constitution of Kenya 2010.

Authors

Image Source: © Zohra Bensemra / Reuters

Judicial Nominations and Confirmations after Three Years—Where Do Things Stand?

Russell Wheeler — Fri, 13 Jan 2012 00:00:00 -0500

Democrats groused in the Obama administration’s first two years about the slow pace of judicial nominations and Senate confirmation.* By the end of the administration’s third year:

the pace of both nominations and confirmations has picked up, but district court vacancies have nevertheless increased noticeably, due partly to the still comparatively low number of nominations and confirmations but also due to an atypically large number of retirements;
President Obama’s appointment of district judges does not match his two predecessors at this point in their administrations, but he is doing better as to circuit judges;
he has already changed the face of the courts of appeals nationally and as to individual circuits in terms of the ratio of active judges appointed by Democratic and Republican presidents (a less-revealing variable than some think it is); and
he has continued the demographic diversification of the federal bench, and the decrease in the number of district judges appointed from private practice, a fact that may be linked to lengthening delays between nomination and confirmation.

Overall, from President Jimmy Carter’s administration to that of President George W. Bush, confirmation rates for circuit nominees have declined steadily (counting someone who was renominated in the same or different Congresses as a single nominee). District nominees’ confirmation rates, though, have hovered around the 90 percent mark (President George H.W. Bush’s district judge figures are misleading+).

Next »

Back to start »

* The data for this paper come partly from the Federal Judicial Center’s Biographical Directory of Federal Judges at fjc.gov, partly from data posted by the Administrative Office of U.S. courts at uscourt.gov and partly from data I have collected. I welcome any and all corrections. Thanks to Christopher Ingraham of Brookings for the graphics.

+ The Senate confirmed 48 of 52 district nominees in 1989-90. It confirmed 101 of 147 1991-92 nominees; those 147 included some for over 70 district judgeships that Congress created in late 1990. (D. Rutkus and M. Sollenberger, Judicial Nomination Statistics: U.S. Circuit and District Courts, 1997-2003 at 15 (Congressional Reference Service, February 2004).

Downloads

Download the Paper

Authors

Russell Wheeler

Image Source: Darren Greenwood

Constitution 3.0 : Freedom and Technological Change

Jeffrey Rosen and Benjamin Wittes, eds. — Tue, 13 Dec 2011 00:00:00 -0500

Brookings Institution Press 2011 271pp.

Technological changes are posing stark challenges to America’s core values. Basic constitutional principles find themselves under stress from stunning advances that were unimaginable even a few decades ago, much less during the Founders’ era. Policymakers and scholars must begin thinking about how constitutional principles are being tested by technological change and how to ensure that those principles can be preserved without hindering technological progress.

Constitution 3.0, a product of the Brookings Institution’s landmark Future of the Constitution program, presents an invaluable roadmap for responding to the challenge of adapting our constitutional values to future technological developments. Renowned legal analysts Jeffrey Rosen and Benjamin Wittes asked a diverse group of leading scholars to imagine plausible technological developments in or near the year 2025 that would stress current constitutional law and to propose possible solutions. Some tackled issues certain to arise in the very near future, while others addressed more speculative or hypothetical questions. Some favor judicial responses to the scenarios they pose; others prefer legislative or regulatory responses.

Here is a sampling of the questions raised and answered in Constitution 3.0:

• How do we ensure our security in the face of the biotechnology revolution and our overwhelming dependence on internationally networked computers?

• How do we protect free speech and privacy in a world in which Google and Facebook have more control than any government or judge?

• How will advances in brain scan technologies affect the constitutional right against self-incrimination?

• Are Fourth Amendment protections against unreasonable search and seizure obsolete in an age of ubiquitous video and unlimited data storage and processing?

• How vigorously should society and the law respect the autonomy of individuals to manipulate their genes and design their own babies?

Individually and collectively, the deeply thoughtful analyses in Constitution 3.0 present an innovative roadmap for adapting our core legal values, in the interest of keeping the Constitution relevant through the 21st century.

Contributors include: Jamie Boyle, Erich Cohen, Robert George, Jack Goldsmith, Orin Kerr, Lawrence Lessig, Stephen Morse, John Robertson, Jeffrey Rosen, Christopher Slobogin, O. Carter Snead, Benjamin Wittes, Tim Wu, and Jonathan Zittrain.

ABOUT THE EDITORS

Jeffrey Rosen

Jeffrey Rosen is a non-resident senior fellow in Governance Studies at the Brookings Institution and a professor of law at the George Washington University in Washington, D.C. He also serves as legal editor for the New Republic and is the author of several books, including The Supreme Court: The Personalities and Rivalries that Defined America (Times Books, 2007) and The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age (Random House, 2005).

Benjamin Wittes

Benjamin Wittes is a senior fellow in Governance Studies at the Brookings Institution and served nine years as an editorial writer with the Washington Post. His previous books include Detention and Denial: The Case for Candor after Guantánamo (Brookings, 2010) and Law and the Long War: The Future of Justice in the Age of Terror (Penguin, 2008), and he is cofounder of the Lawfare blog.

Downloads

Ordering Information:

{CD2E3D28-0096-4D03-B2DE-6567EB62AD1E}, 978-0-8157-2212-0, $29.95 Order
{B98DCBB0-3580-4D55-ABD4-AB91E00585E6}, 978-0-8157-2213-7, $29.95 Order
{9ABF977A-E4A6-41C8-B030-0FD655E07DBF}, 9780815724506, $22.95 Order

The Conservative Legal Movement and the Future of Liberal Jurisprudence

Thu, 01 Dec 2011 09:30:00 -0500

Event Information

December 1, 2011
9:30 AM - 3:45 PM EST

Falk Auditorium
The Brookings Institution
1775 Massachusetts Ave., NW
Washington, DC

The conservative legal movement has shown remarkable success at defining the terms of the debate over jurisprudence, while the various visions of liberal theories of law that confront conservative orthodoxy have struggled to gain currency in the political sphere. Conservative legal theorists have coalesced around a relatively compact and politically effective set of ideas while their liberal critics have offered a diverse series of responses. In the face of conservative victories, can liberals forge a coherent response? Or will differences among liberals get in the way? What events might shake up the current state of the debate?

On December 1, the Brookings Institution hosted a conference on the asymmetry between liberal and conservative visions of jurisprudence. Participants discussed how modern conservative orthodoxy arose, the competing visions of liberal jurisprudence, and the prospects for political backlash against conservative orthodoxy and for a resurgence of liberal jurisprudence.

Following each panel, the participants took questions from the audience.

Transcript

Uncorrected Transcript (.pdf)

Event Materials

20111201_liberal_jurisprudence

Participants

Panelists

Noah Feldman

Bemis Professor of International Law
Harvard Law School

Pamela S. Karlan

Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School
Member of the Board of Directors, American Constitution Society

Lee Liberman Otis

Senior Vice President and Faculty Division Director
The Federalist Society

Steven M. Teles

Professor of Political Science
Johns Hopkins University

William E. Forbath

Lloyd M. Bensten Chair in Law and Professor of History
University of Texas School of Law

James E. Ryan

William L. Matheson & Robert M. Morgenthau Distinguished Professor of Law
University of Virginia School of Law

David A. Strauss

Gerald Ratner Distinguished Service Professor of Law
University of Chicago Law School

The Honorable J. Harvie Wilkinson, III

Judge, United States Court of Appeals for the Fourth Circuit

Michael Klarman (by video)

Kirkland & Ellis Professor of Law
Harvard Law School

Dahlia Lithwick

Senior Editor
Slate

Jeff Shesol

Founding Partner
West Wing Writers

What’s So Hard About Regulating Supreme Court Justices’ Ethics? — A Lot

Russell Wheeler — Mon, 28 Nov 2011 15:32:00 -0500

The Supreme Court’s decision to hear a challenge to the health care law is renewing calls for recusal, described here and here and here. Some, mainly Democrats, charge that Justice Thomas (and his wife) have been too close to some of the law’s strongest critics. Others, mainly Republicans, charge that as solicitor general Justice Kagan may have had even a limited role as the administration crafted the law’s defense. There are no signs that either justice will sit out the case.

These recusal demands are mostly tactics to try to influence who decides the case or delegitimize the decision, but they reflect a growing debate over whether the justices’ ethics need more regulation to avoid conflicts of interest, or their appearance. With Gallup reporting the Court’s approval rating at 46 percent, second lowest since 2000, it’s a debate worth having.

The problem is not that federal judicial ethics provisions only apply to lower federal court judges— a common but erroneous claim. The problem—unsolved so far—is creating mechanisms to regulate the justices’ behavior that don’t create more problems than they might solve. Some proposals, for example, would suck other federal judges into partisan battles over Supreme Court recusals. In this short piece I try to summarize the principal sources of federal judicial ethics regulations and their relation to the justices—about which confusion abounds—analyze the possible impact of proposals to tighten ethical constraints on them, and comment on what the justices themselves might do.

The disqualification statute binds federal judges and justices alike, as do several ethics-in-government law provisions, including a financial disclosure requirement. The United States Judicial Conference directs its advisory Code of Conduct to judges, but at least some justices have said they also seek its guidance. The Judicial Conduct Act provides for the disposition of complaints about all federal judges except the justices; the Act, contrary to what many assume, is not simply a Code of Conduct enforcement mechanism.

Agencies in the judiciary apply these provisions: the courts in their judicial capacity; the Judicial Conference—26 circuit and district judges, chaired by the chief justice—which provides administrative direction to federal courts other than the Supreme Court; and the judicial councils in the twelve regional circuits.

The Judicial Disqualification Statute

This statute directs “[a]ny justice [or] judge . . . [to] disqualify himself [sic] in any proceeding in which his impartiality might reasonably be questioned,” and in specific, listed situations—such as owning even one share of stock in a party to the litigation. Recusal may come on motion of one of the parties or, even without a motion, when the judge or justice learns of a conflict.

Enforcement is through appellate review by the courts, in their judicial capacity. Litigants sometimes ask judges to recuse themselves at the outset of a case and might seek a mandamus order from a higher court if the judge declines. Or, litigants who lost a case may ask an appellate court to vacate the decision, claiming that the judge sat on the case despite a recusal-requiring conflict of interest.

But the appellate process doesn’t work as to Supreme Court justices because there’s no higher court to hear the appeal. A bill introduced last March would tell the Judicial Conference to create such a court—of sitting or retired judges or justices—to hear appeals from unsuccessful recusal motions and “decide whether the justice . . . should be so disqualified.” (HR 862, introduced in March, has 32 sponsors and cosponsors; 43 members have called for House Judiciary Committee hearings.)

Such a court of lower court judges would most likely violate the Constitution’s “one Supreme Court” mandate. Some have argued that a justices-only court would not. Chief Justice Hughes, however, in challenging FDR’s 1937 proposal to add justices to the Court, objected to the idea that the Court could sit in divisions if the extra justices made it too large to sit as a single body. The “Constitution,” he said, “does not appear to authorize two or more Supreme Courts or two or more parts of a Supreme Court functioning in effect as separate courts.” Hughes took flak for issuing an advisory opinion, but his warning has relevance to HR862’s proposed court.

More important, consider the practical problems were HR 862’s court to survive a constitutional challenge: In the first place, only parties to a litigation may move for a recusal, and Supreme Court litigants rarely do. (There have apparently been no motions requesting recusals in the health care case.) So the bill would not produce much action to solve whatever problems worry proponents.

But when a party moved for recusal and the justice declined, the HR 862 court would have to balance the motion against what some see as a judge’s “duty to sit,” discussed briefly here. Because a recused justice cannot be replaced by another judge, the prospects increase for a four-four decision, which would leave the matter at issue without a national resolution. It’s one thing for the justices to balance those considerations, but quite another for lower court judges on the HR 862 court to do it for them. And, finally, suppose a party sought recusal and the HR 862 court denied an appeal when a justice declined to do so, but, after the decision, additional evidence of a possible conflict emerged. Could the party renew the recusal motion before the special court, trying to get the decision vacated and, in the process, adding a new complication to constitutional adjudication?

Limitations on Outside Income, Employment, and Gifts

The Ethics in Government Act limits the outside income and employment of those whom the Act covers (including the justices), as well as the gifts they may accept. Congress authorized the Judicial Conference to issue implementing regulations for those in the judicial branch (available at the links above), and the Conference has delegated to the Chief Justice its authority to issue such regulations for the Court.[1] Common Cause paraphrases a letter from a Court official stating that the justices have agreed by resolution to abide by the Conference regulations.

When Justices Breyer and Scalia testified at recent Senate Judiciary Committee hearing on “the role of judges,” however, a senator said the justices and Court employees are the only federal workers “who are exempt from the[ ] restrictions” on “receiving certain gifts and outside income under the Ethics Reform Act of 1989” and asked should “the Supreme Court . . . be required by law to follow the same financial restrictions as everyone else in government.” Rather than point out the error in the question, Justice Breyer instead described the justices’ compliance with a different statute, the financial disclosure law.

The Financial Disclosure Statute

An Ethics in Government Act provision requires all high-salaried government employees to file annual financial reports. Justices and judges file them with a Judicial Conference committee (apparently the only instance of the Conference’s exercising administrative jurisdiction over the justices). The statute also directs the report-receiving agencies to refer to the attorney general anyone whom they have “reasonable cause to believe has … willfully failed to file information required to be reported.” The attorney general may initiate a civil action, seeking a civil penalty.

Common Cause and the Alliance for Justice in September petitioned the Conference to investigate whether to refer Justice Thomas for his since-corrected failure to report his wife’s well-known employment by conservative policy groups, and his possible error in not reporting certain travel expenses. Some House Democrats made the same request after the administration asked the Court to take up the health care law.

The Conference will likely conclude that even though the disclosure forms are not very complicated for those with no or modest investments (I know from my own experience), honest mistakes do occur, which fall short of the statute’s “willfully failed” standard.

Consider, though, the precedent a referral would create. Encouraging a group of lower court judges to refer a justice to the attorney general for civil prosecution creates the potential for sucking them into the partisan skirmishes over the Court. And the attorney general hardly needs the headache of deciding whether to pursue a civil action against a justice.

The Code of Conduct

The Judicial Conference’s Code of Conduct, in the Code’s words, “applies to” judges on courts in the Conference’s administrative ambit, which doesn’t include the Supreme Court. However, Justice Kennedy told a House appropriations subcommittee hearing that the Code “appl[ies] to the justices in the sense that . . . by resolution we’ve agreed to be bound by them.” It’s unclear, however, whether the justices actually adopted such a resolution, or whether some or all of them simply “go to those volumes”, as Justice Breyer said he does, “[w]hen I find a difficult question.” As noted earlier, Common Cause has said a Court official told it that the resolution at issue involves not the Code but instead the Conference regulations that implement some of the ethics in government act provisions for lower court judges.

In any event critics say that “voluntary compliance . . . isn’t enough.” The justices, editorialized the New York Times, “must adopt the rigorous code of conduct that applies to all other parts of the federal judiciary.” But “applies to” as the Code uses the phrase, doesn’t mean “binds,” the verb commonly used by editorial writers and others in describing the Code. The Code says that it “provide[s] guidance to judges;” the Conference’s Codes of Conduct Committee chair said that the Code is “advisory and aspirational”. Nevertheless, HR862 (see above) would have the Code “apply to the justices… to the same extent as [it] applies to circuit and district judges.” The bill’s sponsors are apparently unaware that it would make the justices’ compliance what it is now—voluntary.

And the Code isn’t “rigorous.” It says itself that many of its provisions “are necessarily cast in general terms.” For example, it tells judges to “discourage a party from requiring the judge to testify as a character witness except in unusual circumstances when the demands of justice require,” but it can’t spell out how much “discouraging” is sufficient or when the “demands of justice” require an exception.

Judges do, though, look to the Code for guidance—almost all judges want to do the right thing, and the right thing is not always obvious. The Codes of Conduct Committee provides judges advisory opinions on whether a contemplated action would be consistent with the Code. And, Justice Kennedy told the budget hearing, “We can ask for advice from the committee …. And we do ask for that.”

The Judicial Conduct and Disability Act

This law authorizes “[a]ny person” to file a complaint alleging that a federal judge—but not a justice—“has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts.” Chief circuit judges dismiss most complaints as unsubstantiated or rearguing the merits of a case; the circuit judicial councils decide the handful that remain (with right of appeal to the Conference).

Enforcing the Code of Conduct is not the Act’s principal purpose. The Conference’s implementing rules say that while the Code may be “informative” and some activities covered by the Code “may constitute misconduct,” “determining what constitutes misconduct under the statute is the province” of the councils, subject to the Act and the Conference’s rules.[2]

Nonetheless, HR 862 would direct the Conference to investigate “complaints . . . that a justice . . . has violated the Code of Conduct,” and to take “appropriate” action, using procedures “modeled after” the Judicial Conduct Act. Thus, were Congress to enact HR 862, the federal judiciary’s disciplinary mechanisms would have two overlapping standards: the “conduct prejudicial” standard as the councils interpret it for lower-court judges and, the Code of Conduct as the Conference interprets it for the justices.

Apart from that problem, consider the impracticality of having lower court judges decide what behavior by justices isn’t acceptable and what to do about it. The Judicial Conduct Act authorizes councils to suspend a judge’s case assignments. A Conference order telling a justice to sit out a few cases could create a constitutional crisis.

Given the Supreme Court’s visibility, and use of ethics charges to try to influence or delegitimize decisions, the Conference likely would be flooded with complaints, almost none of them meritorious. The high dismissal rate would breed more cynicism, and perhaps stoke unjustified legislative antagonism. And, while it’s highly unlikely that lower court judges would take any action against members of the Supreme Court—why pull those judges into partisan recusal battles over the Supreme Court?

What Can the Supreme Court Do?

The absence of formal review mechanisms for justices’ ethical decisions is a necessary imperfection in the system. The frustration behind recent proposals to establish such mechanisms is understandable, but those proposals would likely create more problems than they would solve.

The states use judicial conduct or performance commissions (judges are in the minority in most of them) to hear some complaints about state judges, including state supreme court members. There has been little interest in that at the federal level, just as there has been little interest in having federal judges stand for election. The states, more than the federal system, generally tip the judicial independence-accountability balance more toward accountability. Since the framing of the Constitution, the federal system has tipped the balance more toward independence, but that doesn’t deny the importance of accountability.

We rely on the justices to make decisions about their ethical matters in part because the buck has to stop somewhere and in part because we trust them to make those decisions in good faith. That doesn’t mean every decision a justice makes is beyond legitimate criticism or that their decisions never merit an explanation. The Code of Conduct soundly advises judges, and by extension justices, that they “must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.” Several suggestions:

More transparency: When Justice Scalia explained in a 2004 memorandum opinion why his hunting trip with Vice President Cheney did not require recusal in a case involving the Vice President, many responded that he was right but asked why it took almost a month to respond to the recusal motion, which was preceded by considerable press commentary. HR862’s requirement that justices disclose the reason for a recusal or a failure to recuse is worth considering.
The justices could adopt and release a formal set of standards to guide—not control—whether recusal is warranted in any particular case and describe any mechanisms, even if informal, for advising colleagues about recusal. (The Court released some time ago a statement of recusal policy for cases in which relatives were attorneys.)
If the Court has adopted resolutions pursuant to the delegations of regulatory authority under the various ethics acts, or concerning the Code of Conduct, why can’t they be made public?
It’s likely that the justices will continue to get questions about ethics regulations at appropriations and other legislative hearings, making it important to master the admittedly arcane web of statutes and policies that govern and guide them.

Few believe the activities currently being cited as grounds for recusals in the health care case will have any influences on any justice’s vote, but appearances matter. Recusal tactics may be inevitable when the courts are front-and-center in disputes over contentious policy issues. The justices should take what steps they can to avoid making things worse.

[1] §§1020.50(b) and 620.65(a) of the respective regulations at the links above.

[2] See the commentary to Rule 3 at the link above.

Thanks to Professor Arthur Hellman of the University of Pittsburgh School of Law for helpful comments on an earlier draft, even as he has a somewhat different take on some of these matters than I do.

Authors

Russell Wheeler

@ Brookings Podcast: The Supreme Court and the Presidential Election

Russell Wheeler — Fri, 07 Oct 2011 13:16:00 -0400

Among the cases to be heard this year by the Supreme Court are several hot-button issues sure to roil the debate in the presidential election, including the legality of the Obama administration’s health care law and illegal immigration laws passed at the state level. Visiting Fellow Russell Wheeler says that while the cases may be settled on more narrow interpretations of the law, the wider narrative among the candidates and the media will influence candidates and voters.

previous play pause next

mute unmute

@ Brookings Podcast: The Supreme Court and the Presidential Election 07:07

Right-click (ctl+click for Mac) on 'Download' and select 'save link as..'

Get Code

Copy and paste the embed code above to your website or blog.

Video

The Supreme Court and the Presidential Election

Audio

@ Brookings Podcast: The Supreme Court and the Presidential Election