From Questioning Judicial Nominees: Legal Limitations and Practice (R45300, Aug. 30, 2018):

The U.S. Constitution vests the Senate with the role of providing “advice” and affording or withholding “consent” when a President nominates a candidate to be an Article III judge—that is, a federal judge entitled to life tenure, such as a Supreme Court Justice. To carry out this “advice and consent” role, the Senate typically holds a hearing at which Members question the nominee. After conducting this hearing, the Senate generally either “consents” to the nomination by voting to confirm the nominee or instead rejects the nominee.

— Joe

Here’s the abstract for Stephen Matthew Feldman’s Nothing New Under the Sun: The Law-Politics Dynamic in Supreme Court Decision Making, 44 Pepperdine Law Review 43 (2017):

Recent events have seemed to inject politics into American judicial institutions. As a result, many observers worry that the Supreme Court, in particular, has become politicized. According to this view, the Justices should decide cases in accordance with the rule of law and be unmoved by political concerns. These worries arise from a mistaken assumption: that law and politics can be separated and independent in the process of judicial decision making. But at the Supreme Court (as well as in the lower courts, for that matter), decision making arises from a law-politics dynamic. Adjudication in accord with a pure rule of law is a myth. Both law and politics shape legal interpretation and adjudication. Yet, it is worth emphasizing, the ongoing debate over whether Supreme Court decision making is either law or politics is thoroughly political. This Essay elaborates on these assertions and explores their ramifications.

H/T bespacific. — Joe

The Trump administration has installed a record-breaking number of judges, reshaping the courts for decades. Senate Republicans spent the end of Barack Obama’s term running out the clock on his picks for federal judges. So when Trump took office, he faced a nearly unprecedented number of vacant judgeships—and an opportunity to roll back gains in diversity and remake the federal courts for decades as evident in these charts, created by Mother Jones, which show white, male, and conservative Trump’s judicial nominees have been. — Joe

Tara Grove has published The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. 465 (2018). Here’s the abstract:

The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look reveals that these “self-evident truths” of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of “checking” the judiciary. The Article tells the story of how political actors came to treat each measure as “out of bounds” and thus built what the Article calls “conventions of judicial independence.” But implicit in this story is a cautionary tale about the fragility of judicial independence. Indeed, this account underscores the extent to which judicial independence is politically constructed and historically contingent. Particularly at a time when government officials seem willing to depart from other long-standing norms, federal judges should take none of their current protections for granted.

H/T to Civil Procedure & Federal Courts Blog. — Joe

U.S. Circuit and District Court Nominations During President Trump’s First Year in Office: Comparative Analysis with Recent Presidents (R45189 May 2, 2018) provides statistics related to the nomination and confirmation of U.S. circuit and district court nominees during the first year of the Trump presidency as well as during the first year of each of his three immediate predecessors—Presidents Barack Obama, George W. Bush, and Bill Clinton.

Here’s the abstract for Katherine Shaw’s Beyond the Bully Pulpit: Presidential Speech in the Courts, 96 Texas Law Review ___ (2017):

The president’s words play a unique role in American public life. No other figure speaks with the reach, range, or authority of the president. The president speaks to the entire population; about the full range of domestic and international issues we collectively confront; and on behalf of the country to the rest of the world. Speech is also a key tool of presidential governance: for at least a century, presidents have used the bully pulpit to augment their existing constitutional and statutory authorities.

But what sort of impact, if any, should presidential speech have in court, if that speech is plausibly related to the subject matter of a pending case? Curiously, neither judges nor scholars have grappled with that question in any sustained way, though citations to presidential speech appear with some frequency in judicial opinions. Some of the time, these citations are no more than passing references. Other times, presidential statements play a significant role in judicial assessments of the meaning, lawfulness, or constitutionality of either legislation or executive action.

This Article is the first systematic examination of presidential speech in the courts. Drawing on a number of cases in both the Supreme Court and the lower federal courts, I first identify the primary modes of judicial reliance on presidential speech. I next ask what light the law of evidence, principles of deference, and internal executive-branch dynamics can shed on judicial treatment of presidential speech. I then turn to the normative, arguing that for a number of institutional reasons, it is for the most part inappropriate for a court to give legal effect to presidential statements whose goals are political storytelling, civic interpretation, persuasion, and mobilization—not the articulation of considered legal positions. That general principle, however, is not absolute. Rather, in a subset of cases, a degree of judicial reliance on presidential speech is entirely appropriate. That subset includes: cases in which presidential speech reflects a clear manifestation of intent to enter the legal arena; cases touching on foreign relations or national security; and cases in which government purpose constitutes an element of a legal test. In light of the rhetorical strategies of President Donald Trump, the question of the impact of presidential statements in the courts is quickly becoming a critical one.

Interesting. — Joe

Paul J. Manafort, Jr., of Alexandria, Va., and Richard W. Gates III, of Richmond, Va., were indicted by a federal grand jury on Feb. 22, 2018, in the Eastern District of Virginia. The indictment contains 32 counts: 16 counts related to false individual income tax returns, seven counts of failure to file reports of foreign bank and financial accounts, five counts of bank fraud conspiracy, and four counts of bank fraud. Text of the indictment in U.S. v. Paul J. Manafort, Jr., and Richard W. Gates III (1:18-cr-83, Eastern District of Virginia). — Joe

From the introduction to The Federal Grand Jury (May 7, 2015 95-1135):

The federal grand jury exists to investigate crimes against the United States and to secure the constitutional right of grand jury indictment. Its responsibilities require broad powers.

As an arm of the U.S. District Court which summons it, upon whose process it relies, and which will receive any indictments it returns, the grand jury’s subject matter and geographical jurisdiction is that of the court to which it is attached.

As a general rule, the law is entitled to everyone’s evidence. Witnesses subpoenaed to appear before the grand jury, therefore, will find little to excuse their appearance. Once before the panel, however, they are entitled to benefit of various constitutional, common law and statutory privileges including the right to withhold self-incriminating testimony and the security of confidentiality of their attorney-client communications. They are not, however, entitled to have an attorney with them in the grand jury room when they testify.

The grand jury conducts its business in secret. Those who attend its sessions other than witnesses may disclose its secrets only when the interests of justice permit.

Unless the independence of the grand jury is overborne, irregularities in the grand jury process ordinarily will not result in dismissal of an indictment, particularly where dismissal is sought after conviction.

The concurrence of the attorney for the government is required for the trial of any indictment voted by the grand jury. In the absence of such an endorsement or when a panel seeks to report, the court enjoys narrowly exercised discretion to dictate expungement or permit distribution of the report.

— Joe

From the abstract of Jeremy Kidd and Ryan Walters’ Searching for Scalia in 2018: Measuring the ‘Scalia-ness’ of President Trump’s Supreme Court Shortlist (Jan. 20, 2018):

With rumors of a retirement this summer on the Supreme Court, President Trump may have another chance to fulfill his campaign pledge to nominate justices “in the mold of Justice Scalia.” By initial accounts, he fulfilled that promise with the nomination of Justice Gorsuch, whose early tenure on the Court has been described as rather Scalia-like. Subsequently, the President has expanded his list of potential nominees to twenty-five. However, not all on that shortlist may be similarly “in the mold of Justice Scalia.” We thus updated our previous study measuring the Scalia-ness of the potential nominees. We added Judges Brett Kavanaugh and Amul Thapar. We improved the three original measures: originalism, textualism, and writing separately. We also added three additional measures that were characteristic of Justice Scalia: ghostwriting (the degree clerks play a role in writing a judge’s opinions); years as a law professor; and percentage of one’s life outside of D.C. Finally, for comparison’s sake, we included the lower court records of Chief Justice Roberts and Justices Alito, Sotomayor, and Gorsuch.

We then used these variables to create two versions of the Scalia-ness Index. The simple version merely includes originalism and textualism, the most important and defining of Scalia’s traits. The complex version includes all six variables, but with originalism and textualism weighted significantly more than the other two process-based variables, and with the two background-based variables weighted the least. The results confirmed that as far as being a judge like Justice Scalia, the Trump short-listers are not created equal. In fact, there is a wide gulf between the top six and the rest. And of those top six, third through sixth place were lumped together, followed by a significant gap to second place, and then a rather hefty distance to the most Scalia-like of the short-listers.

Given the abstractness of the Scalia-ness Index Scores, using percentiles we translated the scores into 2017 income and IQ scores. For example, for the complex Index, then-Judge Gorsuch would have been third with a 2017 income of $60,008, followed closely by three other judges ranging from $58,016 to $60,001. (The trailing short-listers ranged from $21,381 to $32,157, with then-Judge Roberts bringing up the rear.) As to the two judges ahead of Gorsuch, they were the equivalent of a 2017 income of $75,597 and $292,372, respectively. The simple Index produced similar results. If Scalia-ness had been an Olympic speed skating race, it would have been a boring one: the gold medal winner finishing all by himself, followed sometime later by the silver medalist all by himself, followed by a pack of four fighting for bronze, followed by everyone else lagging rather far behind.

President Reagan used to say, “Trust, but verify.” Under the assumption that the best predictor of future behavior is past behavior, some judges empirically appear that they’ll be more Scalia-like than others if placed on the Supreme Court. Past Republican Presidents have often relied on too much trust and too little verification in judicial nominations, with disastrous results, including but not limited to David Souter and John Paul Stevens. We strongly recommend the White House demand proof of Scalia-ness. Here is some. Additionally, and more broadly, we argue that since data-driven decision-making has transformed the rest of the world, it should begin to play a more prominent role in decisions about judicial nominees. Doing so will provide more predictive power to the vetting process. The methodology we employ here provides an example of what could be done going forward.

— Joe

From the press release for Formal Opinion 478:

The American Bar Association Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 478  that provides the nation’s judicial branch guidance related to the ethical boundaries of independent factual research on the internet.

The guidance is consistent with the ABA Model Code of Judicial Conduct, but notes that judicial notice is governed by the law of evidence in each jurisdiction. The opinion draws a bright-line distinction between independent investigation of “adjudicative facts” and research of “legislative facts” of law and policy. Formal Opinion 478 also provides guidance on internet research by judges of the lawyers and the parties involved in the case.

“Stated simply, a judge should not gather adjudicative facts from any source on the Internet unless the information is subject to proper judicial notice,” Formal Opinion 478 said. “Further … judges should not use the Internet for independent fact-gathering related to a pending or impending matter where the parties can easily be asked to research or provide the information. The same is true of the activities or characteristics of the litigants or other participants in the matter.”

H/T to beSpacific. — Joe

From U.S. Circuit and District Court Nominees Who Received a Rating of “Not Qualified” from the American Bar Association: Background and Historical Analysis (Nov. 13, 2017 IN10814):

As of this writing, 49 individuals have been nominated by President Trump to U.S. circuit and district court judgeships and have also received a rating from the ABA. Of the 49, 4 (8.2%) received a rating of “not qualified,” 17 (34.7%) received a rating of “qualified,” and 28 (57.1%) received a rating of “well qualified” (including 11, or 78.6%, of 14 circuit court nominees who received a well qualified rating).

The number of nominees, as of this writing, who have received a not qualified rating during the Trump presidency is not notably high (when compared to the number of nominees who received such a rating over the entirety of each of the previous 11 presidencies).

What is distinctive, however, at least when compared to other presidencies, is that both a U.S. circuit court nominee and at least one district court nominee have received a rating of not qualified during President Trump’s first year in office (which last occurred in 1961 during the first year of the Kennedy presidency).

— Joe

From the announcement:

The Federal Courts Web Archive, recently launched by the Library of Congress Web Archiving Team and the Law Library of Congress, provides retrospective archival coverage of the websites of the federal judiciary. … These sites contain a wide variety of resources prepared by federal courts, such as: slip opinions, transcripts, dockets, court rules, calendars, announcements, judicial biographies, statistics, educational resources, and reference materials. The materials available on the federal court websites were created to support a diverse array of users and needs, including attorneys and their clients, pro se litigants seeking to represent themselves, jurors, visitors to the court, and community outreach programs.

This collection includes the websites of the U.S. Supreme Court, U.S. Courts of Appeals, U.S. District Courts, and U.S. Bankruptcy Courts. This collection also includes the sites of the federal judiciary’s specialty courts, including the U.S. Court of Federal Claims, U.S. Court of International Trade, U.S. Tax Court, U.S. Court of Appeals for Veterans Claims, and U.S. Court of Appeals for the Armed Forces.

H/T to Gary Price, InfoDocket. — Joe

From the abstract for Stephen Schultze’s The Price of Ignorance: The Constitutional Cost of Fees for Access to Electronic Public Court Records, 106 Georgetown Law Journal __ (2018, Forthcoming):

This paper argues that the federal judiciary has erected a fee structure that makes public records practically inaccessible for many members of the public and for essential democratic purposes. The per-page fee model inhibits constitutionally protected activities without promoting equally transcendent ends. Through this fee system, the judiciary collects fees at ever-increasing rates and uses much of the revenue for entirely other purposes — in an era in which the actual cost of storing and transmitting digital records asymptotically approaches zero. PACER should be free.

This paper examines the public’s interest in free electronic access to federal court records, and consider the relative strength of legal and policy arguments to the contrary. Section I performs an accounting of the true costs of a free-access regime. Sub-section I.A. examines the monetary cost of providing electronic access. Sub-section I.B. considers the privacy costs to individuals who are identified in electronic court proceedings when digital records erase some of the “practical obscurity” that prevailed in a print-only era. Section II details the benefits of free electronic access to federal court records. Sub-section II.A. describes how this access benefits the public’s understanding of the law, whereas Sub-Section II.B outlines how free access enhances the transparency and legitimacy of the courts. Section III argues that, in the tradition of Richmond Newspapers v. Virginia, free access electronic to court records is a constitutionally necessary element of the structure of our modern judiciary.

Recommended. — Joe

BuzzFeed’s Dominic Holden is reporting that the DOJ filed an amicus brief in Zarda v. Altitude Express, No. 15-3775, at the US Court of Appeals for the Second Circuit that argues that Title VII of Civil Rights Act of 1964 does not cover sexual orientation and only applies if men and women are treated unequally. Details and the text of the DOJ brief at The Justice Department Just Argued Against Gay Rights In A Major Federal Case. — Joe

US Supreme Court Opinions and their Audiences (Cambridge UP, 2017) by Ryan C. Black, Ryan J. Owens, Justin Wedeking and Patrick C. Wohlfarth is the first study specifically to investigate the extent to which US Supreme Court justices alter the clarity of their opinions based on expected reactions from their audiences. The authors examine this dynamic by creating a unique measure of opinion clarity and then testing whether the Court writes clearer opinions when it faces ideologically hostile and ideologically scattered lower federal courts; when it decides cases involving poorly performing federal agencies; when it decides cases involving states with less professionalized legislatures and governors; and when it rules against public opinion. The data shows the Court writes clearer opinions in every one of these contexts, and demonstrates that actors are more likely to comply with clearer Court opinions. For more, the work was reviewed in the April issue of Law and Politics Book Review here. — Joe

Summarizing their work, Daniel Katz, Michael Bommarito and Josh Blackman wrote in A General Approach for Predicting the Behavior of the Supreme Court of the United States:

[W]e offer the first generalized, consistent and out-of-sample applicable machine learning model for predicting decisions of the Supreme Court of the United States. Casting predictions over nearly two centuries, our model achieves 70.2% accuracy at the case outcome level and 71.9% at the justice vote level. More recently over the past century, we outperform an in-sample optimized null model by nearly 5 %. Among other things, we believe such improvements in modeling should be of interest to court observers, litigants, citizens and markets. Indeed, with respect to markets, given judicial decisions can impact publicly traded companies, as highlighted in [Katz DM, Bommarito MJ, Soellinger T, Chen JM. Law on the Market? Evaluating the Securities Market Impact of Supreme Court Decisions 2015], even modest gains in prediction can produce significant financial rewards.

Here’s the abstract:

Building on developments in machine learning and prior work in the science of judicial prediction, we construct a model designed to predict the behavior of the Supreme Court of the United States in a generalized, out-of-sample context. To do so, we develop a time evolving random forest classifier which leverages some unique feature engineering to predict more than 240,000 justice votes and 28,000 cases outcomes over nearly two centuries (1816-2015). Using only data available prior to decision, our model outperforms null (baseline) models at both the justice and case level under both parametric and non-parametric tests. Over nearly two centuries, we achieve 70.2% accuracy at the case outcome level and 71.9% at the justice vote level. More recently, over the past century, we outperform an in-sample optimized null model by nearly 5%. Our performance is consistent with, and improves on the general level of prediction demonstrated by prior work; however, our model is distinctive because it can be applied out-of-sample to the entire past and future of the Court, not a single term. Our results represent an important advance for the science of quantitative legal prediction and portend a range of other potential applications.

— Joe

About Active Judging and Access to Justice, 93 NOTRE DAME L. REV __ (2018), Anna E. Carpenter (Tulsa) wrote

This Article offers a window into a small slice of the civil justice system, a single court where a group of judges is doing their best, with the tools at their disposal, to handle pro se cases fairly and impartially while also helping those parties navigate the complexities of civil litigation. Where they have authoritative guidance, they do their best to follow it. Where they lack guidance, they make choices guided by principle, and they focus on being consistent from case to case. Their approaches are not monolithic, though they are guided by shared values. Most seem to recognize that they are imperfect and working within an imperfect system.

Here’s the paper’s abstract:

Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges engage with pro se parties as a general matter, and even less about active judging. In response, this Article contributes new data and a new conceptual framework: the three dimensions of active judging. The study is based in a District of Columbia administrative court where most parties are pro se and active judging is permitted and encouraged. Using in-depth qualitative interviews with judges in this court, the study asks: Are the judges active? If so, how? Do views and practices vary across the judges? What factors shape and mediate those views and practices? Results reveal that all judges in the sample engage in at least one dimension of active judging, but judges’ views and practices vary in meaningful ways across the three dimensions, which include adjusting procedures; explaining law and process; and eliciting information. While all judges are willing to adjust procedures, they vary in whether and how they explain or elicit. These variations are based on judges’ different views about the appropriate role of a judge in pro se matters, views that are mediated by substantive law — burdens of proof, in particular. The variations exist though the judges draw on shared sources of guidance on active judging: appellate case law, a regulatory body, and one another, through peer reviews. This study suggests refinements to current thinking about active judging, offers new insights about the roles procedural rules and burdens of proof play in pro se litigation, and suggests consistency in active judging may require more substantial guidance than that available to judges in this court.

— Joe

From the abstract of University of Washington School of Law prof Ryan Calo’s very interesting essay Robots as Legal Metaphors, 30 Harvard Journal of Law & Technology 209–237 (2017):

This essay looks at the role robots play in the judicial imagination. The law and technology literature is replete with examples of how the metaphors and analogies courts select for emerging technology can be outcome determinative. For example, whether a judge sees email as more like a letter or a postcard will dictate the level of Fourth Amendment protection the court is prepared to extend it. But next to no work examines the inverse: when and how judges invoke metaphors about emerging technology when deciding cases about people. Robots represent an interesting case study. The judge’s use of the robot metaphor can be justice enhancing in that it helps translate obscure legal concepts like agency and fault into terms understandable to a lay reader. But the use of the metaphor is also problematic. Courts tend to apply the metaphor to remove agency from individuals whom society already tends to marginalize. Further, judges’ mental models of robots are increasingly outdated, which could lead to judicial error as advanced robots enter the mainstream.

— Joe