Should the US Do Away With Lifetime Appointment of Federal Judges?

By now, anyone reading this blog should have already heard me say in class that Federal judges in the United States are appointed for life. The actual language in Article III of the U.S. Constitution says that judges "shall hold their offices during good behavior," which has been interpreted to mean as long as they behave and are not removed by the impeachment process, they remain a federal judge. To say that not everyone is enamored with this setup might be a bit of an understatement. Probably since the first controversial issued by the Supreme Court way back when there have been people calling for the terms of the Justices to be limited. Kenneth Jost recently made this argument in a blog post that is well worth the read.

At Age 92, Judge Finds Balance

For those of you who thought I was joking when I said some federal judges in the United States work into their 90s, check out this very nice piece in the New York times about federal judge Robert Sweet.

Sentencing Phase

In my Münster class yesterday, we discussed the role of judges. One of the things I pointed out was that in criminal cases, it is the job of the jury to determine guilt, but it is the job of the judge to punish someone found guilty.

However, as I also mentioned, there is one exception to this general rule: capital punishment. The Boston Marathon bomber case offers an example of this. The defendant was recently found guilty of the bombing (actually he had admitted to participating, but was arguing that he was unduly influenced by his older brother), and now it is time to determine whether the state can execute him for the crime. That decision is left to the jury.

U.S. Chief Justice Called to Jury Duty

Jury duty in the United States is considered to be an obligation of citizenship. If you are called to serve, it is your duty as a citizen to go. However, not everyone is eligible to serve. As I have pointed out or will point out in class, many states refuse to let lawyers serve on a jury. However, not all have this restriction, and when a high public officials, many of whom have law degrees, are called to serve it sometimes generates headlines. The most recent example of this occurred last week when the Chief Justice of the United States was called to jury duty:

John G. Roberts Jr. showed up for jury duty in Rockville like other civic-minded citizens and was being considered for a civil trial in a case involving a car crash. He answered two questions in open court about relatives — noting that his sister in Indiana is a nurse, and his brother-in-law was with Indiana State Police — but none about his own line of work, which would be listed on a questionnaire. He then talked with attorneys and the judge privately at the bench. Roberts was not selected, and left court without comment.

The Washington Post article from which the above quote is taken goes on to note that Justice Kagen was also recently called to duty. She too was not selected to serve, though.

The National Constitution Center has more on why the Chief Justice was eligible to sit on a jury.

U.S. Supreme Court Asked to Look Abroad for Guidance on Same Sex Marriage

An article with this headline appeared last week in the New York Times. In class I have often pointed out that international law or law from foreign jurisdictions plays little role in American law. But there are exceptions, and there most certainly is no rule against Justices using foreign law as persuasive precedent. In fact, as the Times article points out, the Justices have on occasion used foreign law as a guide, for instance Justice Kennedy wrote in a 2005 opinion concerning the death penalty for juveniles: “The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”

Jury Selection and the Death Penalty

In class, at least some of my classes, we talked about the jury selection process taking place in Colorado where a person is being charged with shooting and killing several people in a movie theater. The case received an enormous amount of media attention, requiring a huge jury pool to be formed and jury selection process that could take weeks if not months. On the other side of the country the infamous Boston Marathon bombers is about to be tried, and there too jury selection will be tricky business. Yet this time one's views on the death penalty will also come into play. Should it? The AP has an interesting article that addresses this question.

Language Matters

Or maybe not. From a legal perspective it most certainly does, but news outlets misuse legal English often. Case in point: a recent headline regarding an appeal of three lower court rulings read "Gay marriage bans in three southern states on trial at U.S. appeals court." Did you get that? "ON TRIAL".

Students in all of my courses should understanding why the use of the word trial is inappropriate here. If you don't, go back and review the meaning of a trial.

Supreme Court asked to decide what "accompanying" means

Students in all three of my courses this semester have been or will soon be exposed to American concepts of statutory. The U.S. Supreme Court recently also had to tackle these concepts in a case dealing with what the word "accompanying" means. According to the New York Times:

After a botched bank robbery in 2008 in North Carolina, Larry Whitfield entered the home of a 79-year-old woman, telling her he needed a place to hide. He directed the woman, who was upset and crying, to move with him from her living room to another room some nine feet away.

Those few steps exposed Mr. Whitfield to prosecution under a federal law that calls for a 10-year mandatory minimum sentence when a criminal “forces any person to accompany him” during a bank robbery or while fleeing.

They also gave rise to a lively Supreme Court argument on Tuesday, one largely concerned with the meaning of the word “accompany.”

Read the rest of the article to see some of the questions the Justices asked as they struggled to find  meaning for this commonly used word.

The Boston Marathon Bomber and Pro-Death Penalty Juries

Does the jury selection process in the United States result in pro-death penalty juries? According to one journalist watching the developments in the Boston Marathon Bomber trial, it does. To see how, check our her article in the Boston Globe.

Going on Senior Status

Because the U.S. Constitution gives federal court judges lifetime appointments, and because implicitly this means Congress cannot set a mandatory retirement age for federal court judges, some judges work well beyond the normal retirement age. However, many of these judges do not work full-time, rather they go on "senior status." A recent Boston Globe article explains:

The senior status arrangement, enjoyed by some 500 federal judges around the country, allows older judges to go into semiretirement while mentoring the fresher faces on the bench and helping to clear the court’s cases. 

Federal judges at all three levels can take advantage of this status, however, when a Supreme Court Justice retires, they may only serve as lower court judges under their senior status. Once the judge takes senior status, s/he effectively goes into retirement allowing the President to appoint a new judge, with the consent of the Senate, of course.

$100K for Swearing at the Cops!

Anyone who has bothered to take a look at some of my older postings will know that a favorite topic of mine is getting arrested for swearing in public. It is well established that free speech rights under the U.S. Constitution protect even vulgar speech like swearing. As a recent article in the Atlanta Journal Constitution points out in an article about an Atlanta woman who was arrested for swearing at the police:

“Ms. Barnes’ comments to the police may have been offensive, but no one in the United States of America should be chased down and arrested for their free speech,” said lawyer Cynthia Counts, who represented Barnes in her civil and criminal litigation. “The officers argued that it was a bad neighborhood and you shouldn’t disrespect the police because it could create issues,” she added.

Counts noted federal courts had overuled such reasoning after 1918 sedition laws made “disloyal, profane, scurrilous, or abusive language” about the U.S. government, flag or armed forces — or that caused people to view government institutions with contempt — a felony.

These are losers for cities and counties. In this instance, Cobb County settled out of court with this potty mouth for $100,000!! Hopefully, in the future Cobb County will train its police officers to ignore offensive speech directed at them.

Getting a Hearing Before the Supreme Court: Only for Elites?

This week Reuters published a special report about the lawyers who get their cases heard before the U.S. Supreme Court. Their conclusion: if you want to access the Supreme Court you had better hire one of the 66 lawyers who seem to repeatedly be granted access to the Court. Part one of the report is entitled "A cadre of well-connected attorneys has honed the art of getting the Supreme Court to take up cases - and business is capitalizing on their expertise," which should give you an idea of the point the report is trying to make. The report is rather long but will give students a very good understanding of the process of having a case heard before America's highest court.

The Power to Declare War

When was the last time the United States formally declared war on another country?

Students in my American Law courses (at least the ones who have already completed the Introduction Course) know the answer to this, and understand that the U.S. Constitution is a bit confusing when it comes to the question of when the President can send the military oversees to engage in battle.

Article I of the Constitution clearly give the Congress the power to declare war, however the President is Commander-in-Chief of the military and charged with defending the interests of the country. Custom plays an enormous role in this question, and arguably it has become custom to allow the President to commit troops oversees without a formal declaration of war, as this recent post on the National Constitution Center's blog clearly illustrates. 

California Governor Criticized for Judical Appointments

California's Governor Jerry Brown has now appointed three judges to the California Supreme Court, and as this editorial at SFGate notes, none of them have judicial experience. The writer of the editorial thinks that's a problem. Read the rest of it to find out why.

Divided Government and the Appointment of Supreme Court Justices

By now, students in all three of my courses are familiar with how vacancies on the United States Supreme Court are filled. And those of my students who have been paying attention to developments in the United States realize that Republicans will soon be taking control of the United States Senate, the body charged with approving the President's nominees to the Supreme Court. Lyle Denniston has an interesting post on the National Constitution Center website explaining who likely it would for a nominee of President Obama's to get through the hostile Senate.

How Presidents Have Used Their Veto Power

While we have not expressly discussed the President's veto power in my courses this semester, this power does fit into the general discussion we have had concerning American government, and at least someone in one of my courses was curious enough about this power to ask whether the President can exercise this power for any reason, or only when he feels the bill he is being asked to sign violates the Constitution. I recently came across a short and informative blog post on the National Constitution Center's blog that anyone interested in the President's veto power should read.

Nevada Gets an Appeals Court

The AP reports that Nevada is joining the 40 other states that have an intermediate level appeals court. To be honest, I'm amazed there are that many states without an appeals court. Anyway, the article points out why not having an intermediate level appeals court can cause problems:

That meant that every appeal from each of the state's 82 district courts - death penalty convictions, medical malpractice judgments, prison food complaints, administrative hearing reviews, driver's license revocations - had to be heard by a very busy seven-member Nevada Supreme Court.

The article goes on to note that last year the Supreme Court rendered about 2,300 rulings!

Americans Don't Trust Their Courts

At least that is what Francis Barry argues in a recent Bloomberg News piece. Barry argues that the increasing number of amendments to state constitutions show a growing distrust of the judiciary. To understand why, give this short piece a read.

Time for a change?

A recent Billings Gazette editorial points out the problems with open elections for judges in this era of outside groups spending unlimited money on trying to influence elections. The editorial also points out two other ways that states select judges, which might be more appropriate for Montana. The editorial is short and very informative.

Judge Retains Seat

From the Associated Press: a day after elections an Illinois Supreme Court Justice appears to have retained his seat. This is a wonderful opportunity to review how some judges in the United States are selected. Here is what the AP had to say:

ST. LOUIS — An Illinois Supreme Court justice targeted for ouster by plaintiffs' attorneys who spent more than $1 million publicly characterizing him as partial to corporate interests appears to have retained his seat, which he won a decade ago in a race that set national spending records.

With more than 99 percent of Tuesday's votes counted, Lloyd Karmeier finished less than 1 percentage point above the 60 percent threshold he needed for retention. Several of the 37 southernmost Illinois counties making up Karmeier's district still were counting absentee and provisional ballots Wednesday.

Just from these two paragraphs we can tell a few things about how Supreme Court Justices are keep their seats in Illinois. While we cannot tell how they are actually selected (whether the governor does the selecting or some kind of committee), we can tell that each Justice must face a retention vote, and in order to survive the vote the judge must obtain a super majority of 60% of the vote. We can also tell that Justices on the Illinois Supreme Court apparently represent only a part of the state. This likely is meant to ensure that the Court is made up of Justices from throughout the entire state.

To review: some judges must face retention votes when their term expires. A retention vote is nothing more than having the name of the judge on the ballot with a "Yes" or "No" answer to the question of whether the judge should be retained. In Illinois a judge must get 60% yes votes in order to keep his or her seat. Remember, not all retention votes run this way. Each state can have their own system.