Tribute to a Mentor

On Monday, August 31, Gregory Hobbs will step down as Associate Justice of the Colorado Supreme Court, a position he has held for the past nineteen years. I was extremely fortunate to serve as a law clerk for Justice Hobbs for the 2000–2001 term. On the occasion of his retirement from the bench, I wanted to add my voice to the chorus of praise for this extraordinary public servant.

Justice Hobbs was (is!) a water law expert, a historian, a poet, a keen cultural observer, and a man with his finger on the pulse of the communities he served. More than once during my clerkship, he reminded me that the Court’s authority came with profound responsibility: each decision directly affected lives and livelihoods. There was no place for judicial (or judicial clerk) egotism or haughtiness. At a time when the news cycle and daytime television converged to create a culture celebrating sassy, snarky judges, Justice Hobbs was always a jurist of remarkable care and humility.

But a commitment to judicial humility still left plenty of room for the Justice to make his individual mark. “There is a second story in the footnotes,” he once said to me during my clerkship. He was talking about his majority opinion in Board of County Commissioners v. Vail Associates, Inc., an opus of an opinion that concerned a head-spinning series of exemptions to the general rule allowing counties to impose property taxes. The opinion was a careful parsing of case law and statutory and constitutional text, but it was also a fascinating jaunt into Colorado’s history. There was a second story in the footnotes, taking readers on a ride from 1877 to the turn of the twenty-first century, and folding in references to mining, farming, ranching, and skiing—the things that make Colorado uniquely Colorado.

I think of that opinion whenever I think of Justice Hobbs, because he too is uniquely Colorado, and because his influence on me and my career can, in a sense, be found in the footnotes as well. Well after my clerkship ended, I have come to regard him as a mentor and an example. It comes in the way he conducts himself as a father, grandfather, husband, friend, boss, and jurist. It comes in the humility he has always shown for his judicial position, and the constant recognition that doing what is right by the law is not always easy. It comes in his love of the State of Colorado, its people, and its institutions. It comes in his ability to stand by his principles while remaining willing to reevaluate his positions. It is a rare judge—indeed, a rare person—who can approach his job with such pleasure, dignity and candor day in and day out. The interaction between Justice Hobbs and his clerks, and among the Justices themselves, gave me a deep appreciation for how appellate decisionmaking should work. Those moments still influence me as a law professor today: I spend most of my time teaching, thinking, and writing about how judges decide cases and how judicial behavior influences others in the legal system.

So the text of my time clerking may read, “Law Clerk, Hon. Gregory J. Hobbs, Jr., Colorado Supreme Court, 2000–2001,” but the real story is in the footnotes. The people of Colorado have been blessed to have Justice Hobbs on the Court for almost 20 years. I have been blessed to know him for nearly fifteen years, where his example has been a constant influence. Thank you, GJH.

Jordan M. Singer

Recent Supreme Court Term: The Supreme Court Openly Challenges Its Own Legacy

One of the more politically opportune reactions to the final week of the Supreme Court Term came from Senator Ted Cruz. His proposal: a Constitutional amendment that would replace life tenure for the Supreme Court with periodic retention elections. Under the Cruz plan, each Justice would face the voters in the second national election after initial confirmation, and every eight years thereafter. Justices would need a simple majority of “retain” votes to stay on the bench. Justices who are not retained would be replaced and would not be eligible for reappointment.

The Senator couched his proposal as a response to “a long line of judicial assaults on our Constitution and the common-sense values that have made America great.” Offering some red meat for his conservative base, he added that retention elections would provide a remedy for “the decisions that have deformed our constitutional order and have debased our culture” by “giving the people the regular, periodic power to pass judgment on the judgments of their judges.”

As a tool of partisan accountability, the proposal shouldn’t work. Retention elections have been used at the state level for 75 years, and only in very rare instances—California in 1986, Iowa in 2010—have multiple justices on a single court lost retention elections in the wake of a politically controversial ruling. Citizen anger over controversial decisions generally does not translate into judges being kicked off the bench. Put another way, retention voters are assessing something more than mere case outcomes when determining whether to keep a judge in office.

This may seem surprising, given that politicians routinely try to rally their bases in reaction to Supreme Court decisions they disfavor. (Consider the left’s reaction to Citizens United or Heller, or the right’s reaction to Sebelius or Obergefell.) But ordinary voters don’t think like politicians. As I have documented here and here, to everyday citizens, a judge’s perceived commitment to a fair legal process is far more important than specific case outcomes. Voters will forgive a judge with whose rulings they disagree as long as those rulings appear to have been reached fairly and with respect for the court’s (often circumscribed) institutional role. Voters are less forgiving, however, when a judge appears to have intruded into the domain of the legislature, acted obnoxiously, or reached a decision that lacks a solid legal grounding.

Senator Cruz is a smart man, and he must know that voters assess judges differently than they do legislators or executives. So I doubt he is using retention merely as a conduit for channeling partisan anger. Quite the opposite: he appears to be counting on voters to assess the Justices on their commitment to procedural fairness and institutional humility, and to find that commitment lacking.

Unfortunately, in this regard the Supreme Court has not helped its own cause. The series of befuddling opinions in Obergefell v. Hodges nicely illustrates the problem. Justice Kennedy’s majority opinion on same-sex marriage was laden with soaring, poetic rhetoric about the profundity of marriage and the entitlement of all people to “equal dignity in the eyes of the law.” One is apt to agree with these sentiments as a matter of policy or even morality. But a constitutional exegesis demands something more. The Obergefell majority never cleanly and clearly explained why it was the province of the Supreme Court to accomplish what Congress and state legislatures might have (eventually) done themselves. Indeed, Obergefell was arguably far less grounded in the constitutional text than either of the equivalent efforts on same-sex marriage offered by the Iowa Supreme Court and Massachusetts Supreme Judicial Court years earlier. In doing so, the majority opened the door to criticisms that the Court had overstepped its institutional bounds.

The dissenting opinions subsequently pulled that door right off its hinges. The Chief Justice lamented, “The majority’s decision is an act of will, not legal judgment…. Just who do we think we are?” He went on: “Five lawyers have closed the debate and enacted their own view of marriage as a matter of constitutional law.” Justice Scalia went further, charging that the majority opinion “lack[ed] even a thin veneer of law” and ruling a “system of government that makes the People subordinate to a committee of nine unelected lawyers.” Justice Alito picked up the same theme, warning that the Constitution forbids “five unelected Justices from imposing their personal vision of liberty upon the American people.” Only Justice Thomas constrained his dissenting opinion to a legalist discussion about constitutional meaning.

As a debate over national policy or constitutional philosophy, the five Obergefell opinions make fascinating and important reading. As a vehicle for increasing, or even sustaining, the institutional legitimacy of the court, however, they are collectively a train wreck. Anyone who reads the majority opinion and suspects the court of moderately overstepping its institutional role will, upon reading the dissents, find a far more grievous critique. The Court, we are told, undermined the core of American democracy through unelected lawyers and (in Justice Scalia’s inimitable words) “judicial Putsch.” Even if one agrees with the outcome of the case (and I count myself among them), the internecine squabbling over institutional overreach is deeply unsettling. The majority could have worked harder to formulate an opinion that sounded less like public policy, and the dissenters could have made their points with far more responsible rhetorical flourish. No wonder Senator Cruz felt that the public might be ready for retention elections.

Thanks to the court’s self-flagellation, the Cruz proposal cannot be treated as mere pandering to his right-leaning base. Public respect for the judiciary is near a 15-year low, and allegations by the Justices that their own colleagues do not respect the rule of law cannot help. Those who want to see the Court regain its lost institutional legitimacy can only hope that the Justices recognize the damage that comes from their public dysfunction, and collectively work to repair it.

Jordan M. Singer

In Memoriam: Dan Markel (1972-2014)

Those inside and outside the legal academy are still coming to terms with the sudden and tragic loss of Florida State University law professor Dan Markel, who was shot and killed at his Tallahassee home on Friday.  Dan touched the lives of hundreds of students and colleagues.  I was fortunate to know him since law school, and wanted to share some (admittedly scattered) memories of a friend lost too soon.

Even as a 1L, when most of us felt uncertain and trembling about our career decisions (or even just making it through the next class), Dan carried a certain unusual confidence.  In criminal law, he argued in favor of sending people to “virtue schools.”  He lugged his old Macintosh laptop to all classes, dragging the plug carefully across the floor behind his classmates’ chairs.  On Saturday afternoons after synagogue, he was known to offer friends a mean vegetarian chopped liver.  He was a character, and a sincere one.

I lost daily contact with Dan after we graduated in 2000, but he resurfaced in my consciousness one day in 2005, when he launched Prawfsblawg.  I was in private practice and enjoying it, but reading the academic posts by Dan and his friends added a powerful new dimension to the legal issues I was contemplating.  I wanted to be part of it.  An in 2009, when I finally decided to break into the legal academy, Dan warmly and cheerfully facilitated my introduction to colleagues far and wide.  He reviewed my early scholarship.  Even though I wrote in civil procedure and he in criminal law, he connected me to the right people almost effortlessly.  Later, after I joined the New England Law faculty, he encouraged me to guest blog at Prawfs, which I have done and enjoyed on more than one occasion.  

It is remarkable that someone would do so much to help an old classmate who had been out of sight and out of mind for almost a decade.  But that was just Dan being Dan.  The outpouring of grief at his loss on Facebook and Prawfsblawg is a testament to how many lives he touched.  He was taken too young, and we will miss him greatly.  Baruch Dayan Emet.

The Judges Among Us

Amid the many tragic stories that came out of the horrific shooting in Tucson this past weekend, I was particularly saddened by the death of John Roll, the Chief Judge of the U.S. District Court for the District of Arizona. Surely the untimely loss of a respected jurist is reason enough for mourning, but I could not exactly pinpoint why his death struck me so hard. I did not know Judge Roll personally, and my professional interactions with him had been minimal -- limited to one case (and never a face-to-face appearance) before him in 2006, and one request for research assistance from his district in 2007. But it has still felt like a very personal loss. Why?

After two days of reflection, I think the answer lies in the level of neighborly familiarity we have with federal judges (and state judges, for that matter). Unlike the President and Congress, who achieve a sort of celebrity status by virtue of election campaigns, and who reside in Washington for all or part of the year, most judges maintain a low profile and live full-time in the communities they serve. When they remove their robes, they are part of that community in exactly the same way we are; through the years, I have run into judges at the supermarket, houses of worship, restaurants and ball games. According to news accounts, Judge Roll went to the Giffords event last Saturday simply to thank her for her support of a measure that would allow his court to better manage its docket. He was a good man, caught in the wrong place at the wrong time. For all the death threats that he had received in 2009 based on an unpopular immigration ruling, he was untimely taken from us because of an innocent and rather impromptu decision to extend a personal thank you. It's a decision that any of us could have made; the ordinariness of the action is why it hit so hard for me.

My deepest sympathies to the families of all the victims of this monstrous act. May the wounded be speedily restored to health, and may those who were lost always remain with their loved ones as a blessing.

More ruminations on judicial elections

Last week's general election proved to be a tough day for state courts and state court judges. Despite support from the state legislature and national luminaries such as Sandra Day O'Connor, Nevada voters rejected a ballot initiative to move away from contested judicial elections and toward a merit selection system. (I previously blogged about the dangers of judicial elections and the benefits of the Nevada initiative here.) The proposed merit system would have instituted careful screening of judicial applicants and evaluation of existing judges, both of which were in the public interest. Sadly, the public itself was not interested.

Other states saw issue politics directly impact judicial retention elections. In Iowa, as my colleague Lawrence Friedman noted last week, three supreme court justices failed in their retention bids after voters made the election a referendum on that court's ruling on same-sex marriage. Opponents of the three justices spent approximately $800,000 to secure their removal, nearly all of it coming from sources outside the state. In Florida, two supreme court justices were targeted by tea party groups after they ruled that a proposed initiative exempting Florida from the new national health care legislation did not meet state ballot requirements. While these justices were retained, they received lower retention rates than their counterparts who were not directly targeted.

Not all news was bad, however. In Colorado and Kansas, voters looked past similar issue-oriented campaigns designed to oust members of their respective highest courts, and chose to retain a host of thoughtful and experienced jurists. And in many other states, retention elections proceeded without much commotion.

What to make of these results? We should be cautious about drawing too many comparisons between states, since the dynamics of each state's electorate can be very different. But it is hard not to notice that states with strong, public judicial performance evaluation (JPE) programs tend to be more immune from politicized retention elections than states without such programs. JPE offers voters comprehensive, neutral evaluations about each judge's performance with respect to the process of judging. In other words, JPE encourages voters to retain (or not retain) a judge based on the judge's demonstrated ability to communicate clearly, treat parties fairly, manage his or her docket, and behave appropriately in the courtroom. The substance of individual decisions never comes into play during the evaluations. JPE therefore asks voters to consider the entire context of the judge's role, not just a particular substantive decision.

In Kansas, comprehensive JPE may have blunted the campaign to remove Justice Carol Beier on grounds related to abortion, and in Colorado the same type of extensive JPE program may have caused voters to disregard the "activist judge" rhetoric of that state's unsuccessful "Clear the Bench" campaign. By contrast, the three Iowa justices had no formal, process-based evaluation to help contextualize their overall work on the bench. They now join a growing club of former state supreme court justices who have lost retention elections over the past 25 years -- Rose Bird, Cruz Reynoso and Joseph Grodin in California, Penny White in Tennessee, and David Lanphier in Nebraska -- none of whom had JPE available to them at the time of their failed retention bids.

JPE is not a cure-all. To work, the evaluations must be fair, thoughtful and accessible, and voters must actually read them and incorporate them into their decision-making. But the potential upside of JPE warrants at least a closer look in other states. Perhaps in the next election cycle, we can celebrate informed voting rather than bemoaning the impact of special interest campaigns.

State Judicial Elections: Constitutional but Unhealthy

When we say that a product or process is “kosher,” we mean that it meets a minimum standard of quality or wholesomeness. Food sold as kosher must be certified as having been prepared in full accordance with Jewish dietary law. More figuratively, to say that something is kosher is akin to saying that it “passes the smell test” – it satisfies certain expectations about its suitability and appropriateness.

Deeming something kosher, however, only means that a baseline standard has been met; it doesn’t mean that it is actually good for you. Not all kosher food is healthy (witness the delicious but positively heart-stopping overstuffed pastrami sandwich), and not all “kosher” procedures in American democracy are advisable. It would be constitutional, for example, for Congress to eliminate all federal district courts, although virtually no one would think that it is a good idea.

Four times in the past decade, the Supreme Court has weighed in (directly or indirectly) on the constitutionality – the “kosherness” – of state judicial elections. Thirty-two states choose some or all of their judges in contested elections; in many of those states, candidates hit the campaign trail armed with party endorsements and special interest money. Despite growing concern that judges, as neutral arbiters, should not earn their positions through partisan politics or big-money political campaigns, the Court has repeatedly affirmed that such campaigns are, for the most part, entirely within constitutional bounds. In 2002, the Court held in Republican Party v. White that the First Amendment allowed judicial candidates to announce their positions on controversial issues while on the campaign trail. In 2008, the Court held unanimously that New York State’s byzantine, party boss-dominated system of selecting judicial candidates was purely a state issue, notwithstanding the sentiment that (in Justice Stevens’s words) the system was just plain “stupid.” This past Term, the Court opened the door to greater corporate and union election spending, including but not limited to judicial elections. Only in the 2009 Caperton v. Massey decision did the Court suggest any practical limitation on state judicial elections, holding that a West Virginia Supreme Court Justice had erred by refusing to recuse himself from a case directly involving his biggest campaign donor.

The declaration of the mere constitutionality of judicial election processes, however, has done nothing to improve the grim reality of the elections themselves. A terrific new report from the Justice at Stake Campaign, Brennan Center for Justice, and National Institute for Money in State Politics graphically documents the rampant growth in the past decade of campaign spending, television advertising, special interest involvement, and free-falling public confidence in the judiciary associated with judicial election campaigns. Among the findings:

* Campaign fundraising more than doubled over the past decade, from $83.3 million in 1990-99 to $206.9 million in 2000-09;
* “Super spenders” dominated judicial campaigns, with the top five (primarily special interest) spenders in elections spending over $470,000 each;
* Much of the money came from national business coalitions on one side and local plaintiffs’ bars on the other;
* Law firms have been able to secretly shuttle (in some instances) hundreds of thousands of dollars to their preferred candidates through PACs – candidates who, if victorious, would have a good chance of sitting on a case involving that firm;
* So-called “nonpartisan” races (in which the candidate’s party affiliation is not listed on the ballot) have become as costly and as nasty as their partisan counterparts.

Given these figures, it is unsurprising that about three-quarters of Americans – and about half of all state judges – believe that contributions to judicial campaigns affect the outcome of courtroom decisions. In an era where other public institutions are increasingly the subject of public skepticism and scorn, the courts can ill-afford a similar crisis of confidence.

Is there hope? Although several scholars quoted in the report suggest that judicial elections are here to stay, there are enough cracks in the façade to suggest a brighter future. More states are implementing public financing for judicial elections, and others are contemplating getting rid of elections altogether. Nevadans will have the opportunity to move to a “merit selection” system this November, effectively jettisoning elections in favor of a system in which judges are appointed from among qualified, screened candidates, evaluated during their term, and subjected to retention elections at term end. In doing so, Nevada would join a number of states with successful merit selection systems – states which manage to strike a sensible balance between judicial independence and accountability.

Jordan Singer