Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

A Member of the Law Professor Blogs Network

Tuesday, February 23, 2010

Do Judges Have The Right To A Raise??

Yes, says New York's highest court. The denial of a raise to state judges for more than a decade violates the state Constitution, the state Court of Appeals ruled in a 5-1 opinion.

However, the majority declined to order any specific remedy, saying only that it expects "appropriate and expeditious legislative consideration" of its decision. The ruling adopts the argument of several judge-plaintiffs and the court system as a whole that the independence of the judiciary has been threatened by the improper linkage of judges' pay to other, unrelated issues.

Judge Smith dissented. He stated that while it is "depressing" that pay considerations have driven many fine judges from the bench, "it is also true that there are still plenty of able judges, and plenty of able people who would willingly become judges, even at today's pay levels."

I am deeply troubled by this decision. Though it clearly only involved judges, can the same rationale be applied to police officers or others who have not received a sufficient raise to remain "independent." Think about it, Judges are employees just like everyone else. Should they be subject to different rules than everyone else??

Mitchell H. Rubinstein

February 23, 2010 in Judges | Permalink | Comments (1)

Friday, February 19, 2010

Syracuse Law Review: Caperton v. A.T. Massey Coal Co. Symposium

Syracuse Law Review is publishing a Caperton v. A. T. Massey Coal Co. Symposium in its next issue. The United States Supreme Court in Caperton held that Due Process requires a judge to recuse himself from a case in which he received substantial campaign donations from one of the parties.  From the symposium abstract:

In our symposium book on Caperton, we hope to analyze many issues arising from the case. Are the appearance of bias and the public's mistrust of the legal system enough to warrant reform? Should the Supreme Court have set forth a constitutional rule grounded in due process to require recusal? What effect will the Caperton decision have on federalism?  Are there any downsides to requiring appointment of judges rather than permitting elections? All of those questions and many others are implicated by the Caperton decision, and it is our intention to delve below the surface and explore a wide range of issues that Caperton evokes.

The symposium contents include:

Dahlia Lithwick - Forward
Steven Lubet - It Takes a Court
Bruce A. Green - Fear of the Unknown: Judicial Ethics after Caperton
Elizabeth B. Wydra - The Fourteenth Amendment’s Due Process Clause and Caperton: Placing the Federalism Debate in Historical Context Ronald D. Rotunda - Judicial Disqualification in the Aftermath of Caperton v. A.T. Massey Coal Co.
Andrew L. Frey & Jeffrey A. Berger - A Solution in Search of a Problem: The Disconnect Between the Outcome in Caperton and the Circumstances of Justice Benjamin’s Election
James Sample - Caperton: Correct Today, Compelling Tomorrow

Congratulations to Syracuse Law Review on this very promising symposium edition.

Craig Estlinbaum

February 19, 2010 in Articles, Constitutional Law, Due Process, Judges, Law Review Articles, Supreme Court | Permalink | Comments (0)

Tuesday, February 9, 2010

Should Judges Be Elected Or Appointed?

The December 23, 2009 New York Times ran an article called "Effort Begun to End Voting for Judges," about efforts by Sandra Day O'Connor and others to persuade states to choose judges on the basis of merit, rather than by election, where judges run with party labels. As the article states:

According to the institute, 23 states and the District of Columbia have a commission-based system for at least some of their judges. No state has shifted to an appointive system in 15 years, but Justice Kourlis said the moment could be ripe.

Judicial elections have become “tawdry and embarrassing,” she said, and the Supreme Court decided an important case this year concerning judicial conflicts of interest that underscored the potentially corrupting influence of campaign contributions to judicial political campaigns, “which changes the landscape, from a legal perspective, and makes us hopeful that this is the time.”

Some, particularly within the business world, have expressed skepticism about merit selection. The U.S. Chamber of Commerce Institute for Legal Reform has taken no official position on judicial selection, but issued a report in October warning that some state judicial selection programs “have been criticized for the absence of public input into the process, lack of transparency, secretiveness in their procedures and the political cronyism that can occur when commissions and the governor operate in what is essentially a closed system."

In New York, where I practice, just about every litigator knows that the quality of state court judges stinks-particularly on the trial court level. Incompetence is rampant because one does not have to even be a competent lawyer to be a judge. Rather, they simply have to be elected-which is largely dependent upon where you live and which party you belong too.

Is the appointment process better? Most believe that the state Court of Appeals judges are of high quality and they are appointed. Additionally, federal judges, particularly Article III judges, are highly regarded. Don't get me wrong, their are plenty of problems with the appointment system-but it's better than the alternative.

Mitchell H. Rubinstein

February 9, 2010 in Articles, Judges | Permalink | Comments (0)

Monday, February 1, 2010

Will Citizens United Kill Judicial Elections?

Tony Mauro, National Law Journal, writes today to ask whether the United States Supreme Court's recent controversial decision in Citizens United v. F.E.C. and the increased corporate money that may flow to judicial campaigns as a result will positively impact on the national movement to replace state judicial elections systems with a merit selection and retention process.

I have not digested the lengthy Citizens United decision, concurrences and dissent yet and for that reason, if none other, will not opine how the decision may affect judicial elections going forward.  Judicial selection reformers argue that allowing corporations, including possibly foreign or foreign-controlled corporations, unfettered access to the American political process through unlimited donations, may turn public support against judicial elections, where large contributions by corporation toward judicial campaigns are often disapproved. 

Mauro's article on the case's possible impact on the judicial selection reform movement is very informative, regardless your point of view on Citizen United's merits, and is recommended.

Craig Estlinbaum

February 1, 2010 in Constitutional Law, First Amendment, Judges | Permalink | Comments (0)

Sunday, December 13, 2009

Judges and Facebook

What if a judge "friends" a lawyer on Facebook? Can that person appear before him or her?? No, according to a recent Florida Ethics opinion,

A Dec. 10, 2009 NY Times article about this Ethics Opinion is available here. As the article states:

When judges “friend” lawyers who may appear before them, the committee said, it creates the appearance of a conflict of interest, since it “reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”

In practice, of course, actual friends and Facebook friends can be as different as leather and pleather, and the committee did recognize that online friends were not the same as friends in the traditional sense. A minority of the panel would have allowed Facebook friendship, which it characterized as more like “a contact or acquaintance” without conveying the notion of “feelings of affection or personal regard.”

While I certainly understand the concern and the Opinion is probably correct. There are First Amendment and other issues that are ripe for law review commentary.

Mitchell H. Rubinstein

December 13, 2009 in Judges, Law Review Ideas | Permalink | Comments (0)

Tuesday, September 22, 2009

Federal Judge Ratings

The Robbing Room is a site by lawyers which rates federal judges. Readers may find it of interest.

Mitchell H. Rubinstein

September 22, 2009 in Judges | Permalink | Comments (3) | TrackBack (0)

Sunday, July 19, 2009

Federal Judge Sentenced To Jail

Judges, even federal Judges, are not above the law. U.S. District Court Judge Kent was sentenced to 33 months in jail. After he was impeached, he resigned. A NY Law Journal story is available  here. The Judge plead guilty to obstruction of justice. This was part of a plea which involved charges involving sexual abuse being dropped. Story here.

Talk about a fall from grace.

Mitchell H. Rubinstein

July 19, 2009 in Judges | Permalink | Comments (0) | TrackBack (0)

Friday, February 20, 2009

Wisconsin: Federal Judge Holds State Judicial Conduct Rules Violate the First Amendment

A federal district judge in Wisconsin ruled yesterday that three provisions in the Wisconsin Code of Judicial Conduct violate the First Amendment.  These provisions prohibit Wisconsin state judges from joining political parties, from endorsing candidates for public office, and from personally soliciting campaign contributions.  In a lengthy opinion, Judge Barbara Crabb held that these rules are not narrowly tailored to promote a compelling state interest, and therefore violate the First Amendment. 

The case is Siefert v. Alexander, No. 08-cv-126-bbc (W.D. Wis., Feb. 19. 2009). Thanks to Professor Kathleen A. Bergin at First Amendment Law Prof Blog for the pointer.

Craig Estlinbaum

February 20, 2009 in First Amendment, Judges | Permalink | Comments (0) | TrackBack (0)

Friday, February 6, 2009

How Much Should Judges Make??

How Much Should Judges Make? is another interesting New York Times article by Adam Liptak. In this article, which appeared on Jan. 20, 2009, Liptak discusses whether federal judges are underpaid. Chief Justice Roberts has called for a pay increase. As the article notes, some believe Judges are underpaid; others believe that they are not. Interestingly, there scholarly articles on this subject. As the article states:   

Federal district judges make $169,300; federal appeals court judges, $179,500; Supreme Court justices, $208,100; and the chief justice, $217,400. There is no question that those salaries, which went up by 2.5 percent last year, have dropped significantly in real terms in recent decades or that they represent a tiny fraction of what partners in a big city law firms make.

This year, federal judges, alone among federal employees, did not even receive a cost of living adjustment.

On the other hand, being a judge is pretty sweet work and the job is in high demand. It comes with status, power, good working conditions, no clients, the ability to affect policy and the satisfaction of doing justice. Federal judges get very good health care, exceptionally generous pensions and the ultimate in job security – life tenure.

The two sides in the debate, in any event, are mostly talking past each other.

The professors collected data and analyzed them using the tools of economics. They measured things like productivity (number of published opinions), quality (how often other courts cite those opinions), speed (how quickly opinions are produced) and independence (how often judges disagree with colleagues with similar political views).

Mitchell H. Rubinstein

February 6, 2009 in Judges | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 20, 2009

Should Judges Be Subject To Mandatory Retirement At Age 70??

Mandatory Retirement At Age 70 For State Judges is an interesting December 29, 2008 New York Law Journal article (registration required). It points out that judges in New York must retire by age 70, yet Judge Levine, a former member of the Court of Appeals, just argued a case in that Court at age 76.  Judge Levine is quoted in the article as saying the following:

Mr. Levine called the age ceiling, adopted in 1869 when life expectancies were in the 40s, "archaic." The current life expectancy for Americans is 78.

An admirer of Chief Judge Kaye and opponent of the Court's retirement age, Assemblywoman Helene Weinstein, D-Brooklyn, said the chief judge's seemingly boundless energy and good health should prompt a reconsideration of the mandatory retirement rule.

"I think if you need a reason why there should not be mandatory retirement for judges at 70, all you have to do is look at Judge Kaye," Ms. Weinstein, chairwoman of the Assembly's Judiciary Committee, said in an interview.

During the last 50 years, 19 Court of Appeals Judges were forced to retire. Mandatory retirement is unlawful under the ADEA for most employers. Judges are exempt from protection under that statute.
Federal Judges, including Supreme Court Justices, are known to work well into their 80's. Why can't state judges??

Mitchell H. Rubinstein 

 

January 20, 2009 in Judges | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 14, 2009

There Is A New Chief Judge of New York Court of Appeals In Town

Patterson Picks Chief Judge Nominee is an important Jan. 13, 2008 New York Times article which outlines Gov. Patterson's pick to pick a new Chief Judge to replace Judith Kaye. The nominee is Jonathan Lippman, the Chief Judge of the Appellate Division, 1st Department. Why is Kaye stepping down? She reached the mandatory retirement age of 70. It is time that we do away with mandatory retirement for judges, just as we have done  in employment under the ADEA. The article discusses Judge Lippman's qualifications as follows:

Mr. Lippman has spent his entire legal career in the state court system. He graduated from New York University Law School in 1968 and took an entry-level court job.

In 1989, he became the deputy chief administrator for management support, responsible for the day-to-day management of the court system. In 1995, Gov. George E. Pataki appointed him a judge of the New York Court of Claims. In 2005, he was elected to the State Supreme Court for a 14-year term. Gov. Eliot Spitzer assigned Justice Lippman to the appellate division in May 2007.

Mitchell H. Rubinstein

January 14, 2009 in Judges | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 21, 2008

Conference: Judicial selection in Washington

There will be an interesting conference next month in Seattle for those interested in the ongoing debate on judicial selection.  The University of Washington School of Law and the Judicial Selection Coalition are joining to present "Selecting Judges in Washington -- Looking Back to 2008 and Forward to 2009" on November 21 at W. H. Gates Hall at the law school.  The conference begins at 1:00 and includes some interesting presenters.  Here is a flyer with more information about this conference.

Hat Tip: Legal Scholarship Blog.

Craig Estlinbaum
 

October 21, 2008 in Conferences, CLE, Judges | Permalink | Comments (0) | TrackBack (0)

Friday, September 19, 2008

Bipartisan Judicial Screening Panels??

Cooling Off Judicial Selections is a very interesting September 8, 2008 National Law Journal article (registration required). It discusses  a recent recommendation by the American Bar Association to expand the use of bipartisan judicial nomination commissions. As the article states:

The ABA proposed that both U.S. senators in each state establish a bipartisan commission that would provide a recommended short list from which the senators could send their top picks to the president. The president would have the option to nominate a candidate from those top picks for confirmation before the full Senate.

The ABA's recommendation would change the selection process in most states, where a senior senator, a Republican during the Bush administration, sends his or her own top candidates to the president.

But the concept mirrors the selection process in eight states: California, Colorado, Florida, Georgia, Hawaii, Texas, Washington and Wisconsin.

The commissions in those states involve dozens of lawyers. Most agreed that commissions provide better qualified candidates and tend to be nonpartisan in vetting applicants. At the same time, many are skeptical about whether bipartisan commissions depoliticize the selection of federal judges enough to necessarily speed up the nomination or confirmation process.

This sounds like a wonderful idea to me. However, is it practical?? I do not believe that it is possible to totally eliminate politics from the appointment process.

Mitchell H. Rubinstein

September 19, 2008 in Judges | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 9, 2008

Judicial Advisors To McCain and Obama

Judicial advisers line up behind candidates is an interesting July 7, 2008 National Law Journal article (registration required). It is about who has been whispering in the ears of presidential hopefuls John McCain and Barack Obama with respect to future appointments. With 4 of the Justices in their 70's and Justice Stevens being 88, the article states that there can be up to 5 Supreme Court vacancies and 45 district and appellate court vacancies. Additionally, a Bill pending in Congress seeks to add 50 more federal judges. Therefore, who the next President is can have tremendous impact on the federal judiciary and on the nation.The list of advisors as stated in the article are as follows:

Nationallawjournal 

July 9, 2008 in Judges, Politics | Permalink | Comments (0) | TrackBack (0)

Saturday, June 21, 2008

New York Court Of Appeals Chief Judge Kaye Is Retiring

Kaye The June 19, 2008, New York Sun reported that long time N.Y.S. Court of Appeals Chief Judge Judith Kaye is retiring after 15 years of service. That article is available here. The Governor will appoint the Chief Judge from a Commission which recommends candidates.

As some one who practices in New York, I have read hundreds of her decisions. Judge Kaye is highly respected and will be missed. She took over the court during a difficult time. She took over for  The Honorable Sol Wachtler  who now serves as an adjunct professor of law at Touro Law School. She managed to keep the reputation of the Court intact and ran a first class operation.

Mitchell H. Rubinstein

June 21, 2008 in Judges | Permalink | Comments (0) | TrackBack (0)

Monday, June 2, 2008

3rd Holds Where Intracircuit Conflict Occurs Earlier Decision Controls

3dcir Pardini v. Allegheny Intermediate Unit, ___F.3d___, 2008 WL 2004471 (3rd Cir. May 12, 2008),  is an important circuit court decision to be aware of. We discussed this case on May 15, 2008 relative to its holding that attorney parents are not eligible to collect attorneys fees from representing their child in IDEA litigation. I explained here why the court errd. 

But there is another important part of this decision. Specifically, the circuit addresses how an Intracircuit conflict should be decided. The court holds that in such cases the earlier decision controls, reasoning:

Accordingly, “[t]his Circuit has long held
that if its cases conflict, the earlier is the controlling authority
and the latter is ineffective as precedents.” United States v.
Rivera, 365 F.3d 213, 213 (3d Cir. 2004) (declining to use the
standard of review set forth in a case within the circuit because
that case “never acknowledged that the precedents [within the
circuit] used [a different standard of review]” and did not
“explain why [the Court] broke with those precedents”); see also
Holland v. N. J. Dep’t of Corrections, 246 F.3d 267, 278 (3d Cir.
2001) (“[T]o the extent that [a case within the circuit] is read to
be inconsistent with earlier case law, the earlier case law . . .
controls”); O. Hommel Co. v. Ferro Corp., 659 F.2d 340, 354
(3d Cir. 1981) (“[A] panel of this court cannot overrule a prior
panel precedent. To the extent that [the later case] is
inconsistent with [the earlier case, the later case] must be
deemed without effect.”) (internal citations omitted).
Clearly our Internal Operating Procedures and precedents
provide for an approach which differs from that used in the
situation in which there are two irreconcilable statutes in which
circumstance the second will be deemed to impliedly repeal the
first. Branch v. Smith, 538 U.S. 254, 273, 123 S.Ct. 1429, 1441
(2003). Therefore, inasmuch as our decision in Woodside
addressed the same issue which we now face in this case, we are
bound by the holding in Woodside regardless of any conflicting
language, if there is any, in a subsequent decision by another
panel of this Court. Inasmuch as a panel of this Court rather
than the Court en banc issued our earlier decision in Pardini, the
decision could not overturn our holding in Woodside, even if the
panel sought to do that. See Third Circuit IOP 9.1.

Mitchell H. Rubinstein

June 2, 2008 in Judges | Permalink | Comments (0) | TrackBack (0)

Friday, May 30, 2008

The President's Appointment Power

Reagan's Influence Lives On In U.S. Courts is an interesting May 12, 2008 U.S.A. Today article which reminds of the importance of the President's appointment powers. More twenty years after President left office, his appointments are still having an important influence. As the article states:

They became the first judges in more than a half-century to say the Second Amendment protects an individual's right to own guns. They took the lead in ruling against affirmative action and other race-conscious policies. And they upheld bans on an abortion procedure called "partial birth" before it reached the Supreme Court.

They are prominent appeals court judges appointed by President Reagan in the 1980s — the products of an unprecedented, meticulous and often controversial screening process that transformed the politics of judicial nominations.

Named to an influential set of 13 regional courts, they were, as a group, young, brainy and bold. They became the legal vanguard of the Reagan agenda to lessen federal control — and protections — in American life.

Now, nearly 20 years after Reagan left office, many of them are at the height of their power. Their opinions routinely draw national attention. Eight are the chief judges of their circuit courts and in key positions on the U.S. judiciary's policymaking committee. Many are superstars of the conservative movement, appearing as speakers at meetings of the arch-conservative Federalist Society and, in past years, landing on GOP presidents' short lists for Supreme Court appointments.

Mitchell H. Rubinstein

May 30, 2008 in Judges | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 29, 2008

Judges Strike In New York??

As most New York lawyers know, state Judges have not gotten a pay raise in quite some time. The situation has gotten so bad that New York Court of Appeals Chief Judge Judith Kaye has brought suit. A number of judges have recused themselves from cases where legislators are appearing before them as attorneys. This lead Chief Judge Kaye to write to newly minted Governor Patterson that there is no judicial slow down. Additional details including a link to Judge Kaye's correpsondence can be found here.

Mitchell H. Rubinstein

April 29, 2008 in Judges | Permalink | Comments (0) | TrackBack (0)