Justice Elena Kagan? What the President’s Choice Tells Us About the Modern Court and Confirmation Process

Lecture by Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute

Wednesday evening, May 26, 2010
Washington Athletic Club • 1325 Sixth Avenue, Seattle
Doors open at 6:30, program begins at 7:00

Drinks and hors d’oeuvres will be served
Parking in the Washington Athletic Club’s garage (1409 6th Avenue) will be validated
$25.00 per person, payable at the door by cash or check made out to Federalist Society

RSVP to Michael Bindas by Monday, May 24, 2010 by email at mbindas@ij.org or phone at (206) 341-9300

Presented by

THE FEDERALIST SOCIETY PUGET SOUND LAWYERS CHAPTER

in partnership with

EVERGREEN FREEDOM FOUNDATION
 

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Who the assignment judge is [for a particular case], is a closely guarded secret of the court. To make attorney guesswork more difficult, law clerks in addition to the assignment justice’s law clerks typically attend the oral argument.

So clerk-counting is apparently pointless.

The speech is from 1996, so some procedures have likely changed. But I'm betting that much of the path a case takes is still the same today.

He discusses the issue in a very thoughtful post that acknowledges the flaws in each system. Elections, appointments, selection committees ... they all have their shortcomings.

He discounts the concern that judges up for re-election would pander to popular opinion. “[I]n my 40 years in the law, the judges of Washington State have consistently done the courageous thing and are not swayed by fear of being unelected.” But Chambers cites problems in other states and says the election process can potentially threaten judicial independence.

Lifetime appointments, he says, are also problematic. “Some judges appointed for life have become tyrants and do not treat lawyers, parties, or jurors with respect. On the other hand, it was my experience that state court judges faced with periodic elections see every lawyer, party, and witness as a future potential vote and almost always treated all with respect.”

Appointment committees that screen potential judges? “In the past, such blue ribbon panels have been perceived as a good old boy network; clubbish and difficult for women and minorities to break into.”

Justice Chambers offers an interesting Solomon compromise: elect trial judges, who are closer to their communities, and appoint appellate judges, who are ultimately responsible for interpreting the law. He recommends using a diverse appointment committee and requiring appellate judges to stand for retention elections.

Chambers concludes by showing he is a pragmatist. “Although interesting, this discussion is likely academic as I think it highly unlikely that the people of Washington State are ever going to relinquish their constitutional right to elect judges.”

On average, the court took 223 days (31 weeks) to issue opinions in the cases where arguments were heard. Fifteen decisions in 2009 were pending for over a year, while 20 cases were disposed of in less than three months. One case, State v. Wright, which dealt with double jeopardy, sat for 674 days (96 weeks) before being resolved.

UPDATE: More numbers inspired by the comments below. Here is the average time from argument to decision based on who authored the majority opinion.

Also, the average wait based on the case's vote split.

Community Care Coalition of Washington v. Reed – Supreme Court lacked constitutional power to prohibit Secretary of State from certifying an initiative measure as an initiative to the people (rather than to the legislature) for placement on general election ballot.

Majority Author: Gerry Alexander
Dissent Author: Mary Fairhurst
Vote: 6-3

Brown v. Owen – Senate Majority Leader Lisa Brown challenged the constitutionality of Initiative 601’s requirement that tax increases be approved by two-thirds of the legislature. The Supreme Court declined to interfere with the legislature’s parliamentary process and suggested the legislature change the law if it dislikes it.

Majority Author: Mary Fairhurst
Vote: 9-0

In re Estate of Kissinger – A man was convicted of killing his mother, but was held not guilty by reason of insanity. The Court ruled he could not later inherit a portion of the wrongful death settlement obtained by his mother’s estate.

Majority Author: Tom Chambers
Vote: 9-0

In re F5 Networks, Inc. – In a ruling that disappointed business advocates, the Court adopted the “demand futility standard,” allowing shareholders to commence litigation in the name of the corporation without first demanding action from the corporate board.

Majority Author: Tom Chambers
Vote: 9-0

State v. Garvin – The Court ruled that the Fourth Amendment prohibits police officers from conducting “squeeze searches” of objects under a suspect’s clothing when a “pat-down” is the appropriate frisking method.

Majority Author: Richard Sanders
Vote: 9-0

City of Woodinville v. Northshore United Church of Christ – The Court ruled that Woodinville violated a church’s religious liberty by preventing it from applying for a temporary permit to host a tent city. The Court also noted that the state constitution protects religious liberty more expansively than the U.S. Constitution.

Majority Author: James Johnson
Vote: 9-0

Morgan v. City of Federal Way – An investigative report concerning the municipal court’s hostile work environment and an elected official’s wrongdoing is a public record and is subject to disclosure.

Majority Author: Susan Owens
Vote: 9-0

Briggs v. Nova Services – Upholding the state’s at-will employment policy, the Court ruled that an employer did not violate state law by terminating employees and managers who protested their executive director’s managerial decisions.

Majority Author: James Johnson
Dissent Author: Susan Owens
Vote: 5-4

City of Federal Way v. Koenig – A court’s administrative records are not subject to disclosure under the Public Records Act. (Madsen and Sanders did not participate.)

Majority Author: Susan Owens
Dissent Author: Debra Stephens
Vote: 7-2

Federal Way Sch. Dist. No. 210 v. State – The Court declined to micromanage education policy, and ruled that salary disparities between employees in different school districts do not violate the state constitution’s directive to provide “general and uniform” system of education.

Majority Author: James Johnson
Vote: 9-0

State v. Rafay – The Washington Constitution guarantees a defendant’s right to self-representation on appeal.

Majority Author: Debra Stephens
Vote: 9-0

Gold Star Resorts v. Futurewise – In a victory for property owners, the Court said the state growth board lacks authority to issue “bright-line” rules limiting rural development to a maximum of one home per five acres.

Majority Author: Barbara Madsen
Vote 9-0

 Number of Opinions by Justice 

The workload for 2009 was fairly evenly distributed. Soon-to-be Chief Justice Barbara Madsen was the most prolific writer this year, with 18 majority opinions and 39 total opinions. Justice Richard Sanders is the most frequent dissenter, writing nearly three times as many dissents as any other justice (including a dissent to his own majority opinion). As is common for the chief justice, Gerry Alexander wrote fewer opinions because of the additional administrative duties his position requires. Justice Debra Stephens participated in the fewest decisions as she joined the court after many of the cases had been argued, but she still managed to author the second-most majority opinions this year.

Frequency of Agreement between Justices

Ever wonder which justices agree with each other most frequently? The above chart documents the percentage of cases in which justices are on the same side of an opinion (majority and concurring opinions are treated as equivalent). The justices with the highest rates of agreement were Madsen and Fairhurst (88%), Chambers and Stephens (88%), and Owens and Fairhurst (88%). The justices with the lowest rates of agreement were Sanders and Fairhurst (66%), and Sanders and Jim Johnson (64%).

Frequency in the Majority 

*Including concurring votes

Number of Decisions by Vote Count

Unlike the U.S. Supreme Court, which sees many narrow 5-4 decisions, the state Supreme Court enjoys a number of strong majority opinions, with nearly half of its rulings unanimous or 9-0 in the outcome. Justices will frequently concur in the result of an opinion, while employing a separate rationale for reaching his or her conclusion.

Coming Soon: the court's noteworthy opinions from 2009.

(Note: Feel free to use these numbers, but we'd appreciate if you'd cite the Supreme Court of Washington Blog as the source.)

The Committee's opinion on judicial blogging says "yes, but be careful" (my paraphrase).

The Code of Judicial Conduct does not specifically prohibit a judge from blogging on the internet. CJC Canon 4(A) permits judicial officers to write concerning the law, the legal system and the administration of justice provided that activity does not cast doubt on the capacity to decide impartially any issue that may come before them. Even though a judicial officer may post an internet blog that activity, in addition to the limitations of Canon 4(A), will also be subject to the limitations of Canon 2(A) and Canon 3. That is, a judicial officer should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary and judicial duties must take precedence over all of a judicial officer’s activities.

The opinion goes on to give advice for blogging judges.

If the judicial officer does post a blog, the judicial officer may want to consider posting a disclaimer that the opinions expressed are only those of the author and should not be imputed to other judges. The judicial officer may also want to consider outlining constraints to which judicial officers are subject such as commenting on pending cases or discussing cases with persons appearing before the judicial officer’s court in order to avoid ex parte communication. If possible, the judicial officer should review a response before allowing it to be published on the blog or alternatively, regularly monitor the responses to make sure that the thread of the discussion does not change from that permitted by Canon 4.

This is an encouraging development. I agree, as the opinion states, that judges are in a unique position to improve the public understanding of the law. To my knowledge, Justice Tom Chambers is the only member of the state Supreme Court who maintains a blog. Perhaps we'll see more in the future.

The answers are disturbing. I know that here in Olympia the political/government press corps has dwindled from 30+ reporters to just seven people in a few short years. Veteran reporters have “chosen” early retirement, government positions, or private-sector employment. David Ammons (Associated Press), David Postman (Seattle Times), and Joe Turner (The News Tribune)—just to name three—had decades of experience between them, and their insight and institutional memory is now gone. There are very good reporters left behind, but they’re the first to admit they’re stretched too thin.

The discussion on Friday covered these issues, with U.S. District Court Judge Robert Lasnik and Washington Chief Justice Gerry Alexander voicing concerns about the state of journalism .

But one comment caught my attention:

Peter Shaplen, a producer, consultant and educator, said the courts are seeing more bloggers. Unfortunately, blogs are less likely to provide the in-depth reporting that lays out the facts and arguments behind court opinions and verdicts, he said.

I’m not especially interested in the “blogs vs. newspapers” debate. But when it comes to legal reporting, Mr. Shaplen is wrong. I’m equally concerned about the erosion of the press, but blogs can and do provide in-depth reporting on legal issues and cases.

Consider this blog, for example. By the time the Washington State Supreme Court issues a ruling, we’ve written about that case numerous times: we announce the case when the petition for review is accepted, we provide previews and recaps of oral argument, we link to party briefs, we discuss the case’s procedural history, and we preview the case the night before the ruling is issued. We then unpack the Court’s opinions—covering both the story and the significant legal issues for the benefit of legal practitioners and laypersons alike. We’re also able to observe trends, comment on the nuances of developing case law, and translate particularly complex legal issues. The political reporters in town do a fine job. I’m not saying they don’t. But the lawyers writing for our blog offer an expertise and depth of analysis that a general assignment reporter can’t match.

The ease of online publishing allows subject-matter experts to offer their views to the public without the barriers they would face if trying to get quoted in the New York Times or on 60 Minutes. Take any area of law, and there’s probably a legal professional blogging on that topic. Attorney Bill Marler is a leading expert on food poisoning outbreaks and litigation and writes about the topic on his blog. Want to know about equestrian law? You’d better be reading Alison Rowe’s Equine Law Blog.

Legal professionals are filling the void created by the death of print journalism, and the public is well-served because of it.

Justice Debra ("Gangsta") Stephens and Chief Justice Gerry ("Big Dawg") Alexander at the court's annual Halloween party.