"Meantime, what the rest of us need to do is understand that if we don’t want legislators to trade judicial candidates like baseball cards, we have to stop treating judicial candidates like baseball cards."

"That is, we have to stop letting the Legislature elect judges.", says Cindi Ross Scoppe in response to the current state and federal investigation into potential illegal vote-trading.

Federal Judge Continues Blogging

“We can easily forgive a child who is afraid of the dark. The real tragedy of life is when men are afraid of the light.”

A Federal Judge refuses to quit blogging.

Good for him. We could use more men who aren't afraid to step into the light.

Sunday Morning Open Thread

Adios, Daylight Savings Time.

On a somber note, former Federal Judge Karen Williams, a native of Orangeburg, SC, passed away yesterday morning. She was a pioneer in the legal world, and she'll be missed.

In other legal news, the race for South Carolina's Chief Justice is getting closer. Could a wild card be in the works?

Ok. Time to face the day. But first, coffee...

Six More Family Court Judges On the Way

Normally, I view additional government spending with a healthy dose of skepticism. However, even as someone who extols the virtues of fiscal restraint, I can absolutely say that we need more judges here in South Carolina.

Finally, the State Legislature has realized that South Carolina needs more judges to help manage the rising caseload here in the Palmetto State. Today, the SC Senate passed a bill approving the creation of six new family court judges and three new circuit court judges; nine in total.

This has been long overdue. South Carolina has the fewest number of judges per population and more than twice the national average of case filings per judge. Each year, Justice Toal tells the legislature these facts in her State of the Judiciary Report.

As a practicing lawyer here in South Carolina, I can tell you that wait times for hearings are longer than they need to be. I do a fair amount of family court work, and I do it throughout the state. Some counties run a tight ship, and others are an absolute nightmare.

In a certain county, in family court, just to get a hearing scheduled, not heard, can take up to six months. That's insane. I know the wheels of justice are slow, but six months to get a hearing scheduled means the wheels of justice have fallen off. If you want to get the dockets moving, you have to have more people available to get the cases disposed of. Alternative dispute resolution (mediation) has taken some pressure off the court, but you cannot force people to agree. Sometimes, especially in family court, you have to have an adjudication.

These new judges need to be assigned to the counties in South Carolina that have seen the population grow the most since the last judges were added. As a conservative, I am normally loathe to grow the size of government, but this is actually a legitimate need. I applaud the move to add new judges. The judiciary we have is comprised of some great people, but they're downing in the current workload.

Now, the next step is to get the South Carolina state courts to go to an e-filing system modeled after the Federal System. Automatic discovery and scheduling orders to push parties along is what keeps the Federal Court system moving. Time to get modern, South Carolina.

Great Minds Think Alike

On Monday, I mentioned that someone should educate our President on judicial review. Interestingly, a Federal Judge noticed the same remarks and came to the same conclusion I did:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

 Great minds think alike. Either that or a Federal Judge is reading my blog.

So, it looks like the President just got assigned a book report on Marbury vs. Madison. You think that he would come out and say "I certainly believe in judicial review, and I hope that the Justices agree with the Solicitor's arguments and uphold the ACA. Next question." That's all he needs to say. It's not hard. But noooooo....he has to double down on stupid. Here's our President's response when asked about judicial review:

Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.

He couldn't just leave it alone. His ego is way too big for that. He's got to prove that he's the smartest guy in the room. So, he finds a widely disliked case (like Lochner, Plesssy, ect.) and basically says that if you decide against the ACA, it's going to be just like Lochner. The Horror!

The problem is, the opinion in Lochner held that the Due Process Clause of the Fourteenth Amendment protects a robust right to "liberty of contract". It was subsequently overruled. Notice anything about the commerce clause? Neither did I. That's because Lochner isn't a commerce clause case. It isn't applicable to the current discussion.

So if you come across anyone who tries to tell you that holding the ACA to be unconstitutional will be a revival of Lochner, ask them if they can explain the holding. I betcha they can't. Even if they're the President.

Someone needs to tell the President about the first rule of holes.

Why This Blog Will Never Be Big

Here's why I'm not going to make it big on the blogging-world: My last post was about a basketball team running a football play (awesome, by the way), and now I'm going to talk about judicial activism.


All the really successful blogs are little niche-type blogs. You get your sports news here, you get cool military photos there, and you get daily cute puppies here. (Seriously, check out the puppies.) 


Every good blog fits into a nice little category. However, since I do this for me - I'm going to switch gears just a tiny bit. A little. I actually was going to get off the political/legal issues for awhile. However, when I hear the President say this, I want to throw something at my television:

"For years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint - that an unelected group of people would somehow overturn a duly constituted and passed law," Obama said. "Well, this is a good example," he said. "And I'm pretty confident that this Court will recognize that and not take that step."

This is weapons-grade stupid on several levels, so it actually pains me that everyone things our President is so smart. Maybe since he's so smart, he should have done the oral arguments.

First,  the term "judicial activism" is whatever you don't like the Court doing. It's different for everyone. It's just a cop-out argument. People on all sides of issues use the word. If you don't like the Court's opinion, you call it "judicial activism". It's just a label, and it's almost meaningless, because it's been used to mean so many different things. All you have to know is that when you hear it, the person saying it means decision of the court = bad. So congratulations Mr. President, you have a buzzword. Kudos to you.

Second, what the hell does "duly constituted and passed law" mean? Really. Put the teleprompter down, slowly back away, and tell me what it means. I'll wait.

Think about this: "duly constituted" as opposed to what? A random guy snuck into the Capitol and put the bill into desk drawer? A guy from your bowling league gave it to you over a plate of nachos? All it means is that some Congressmen talked about it in a meeting. Which brings us to: "and passed law". It passed because Congress took a vote. Congratulations kids, you took a vote! Well that is the end of the analysis under super-duper smart President. They voted on it. End of analysis. Okey-dokey.

Congress wrote something down and then took a vote = duly constituted and passed law.

This isn't the legal standard. It can't be the legal standard. It's not even close to the legal standard. You know why? Because every law that the Supreme Court has found unconstitutional on substantive grounds  was a duly constituted and passed law. Here are two other laws that were duly constituted and passed:

The Judiciary Act of 1789 (Marbury vs. Madison)

Jim Crow Laws (culminating in Brown vs. Board of Education)

Whoa! You mean the Supreme Court doesn't just defer to laws that were duly constituted and passed! That's so crazy! Taking a vote in Congress isn't the end of the test?

If we did what our President is advocating, we don't even need a Judiciary. We can send them all home. If a legislature duly constitutes and passes a law...that's all we need under our President's theory. However, the way the Constitution is set up is that the branches of government have this relationship - checks and balances. You may have heard of it, it's kind of a big deal around here.

Someone get our President a copy of Marbury vs. Madison. Oh and highlight this part for him, in case he's not as smart as everyone says he is.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

FYI, it's not judicial activism if the theory of striking down a law is that it is repugnant to the Constitution.

The Supreme Court: Taking Congress out behind the woodshed since 1803.

ABA Rates 14 of the 185 Obama Judicial Nominees as "Not Qualified"

Volokh has an interesting discussion of the various issues this raises. First, I would probably guess that at least a few of the "not qualified" nominees are requests from Democratic Senators who have certain "pet" nominees.

More interesting than the ABA deal is the debate in the comments about what actually makes a person qualified to be a Federal District Court Judge. Would you prefer a district court judge with trial court litigation experience, or would you rather have a credentialed, tenured law professor who knows more of the substantive theory of the law?

I believe that litigation skills are transferable from one subject matter area to another. A district court judge needs to be able to understand how to run a contested case from the beginning to the end. That covers everything from discovery dispute, summary judgment motions, pre-trial motions, conducting the actual trial, handling post-trial motions, and a whole host of other things.

If you simply plug a “high intellect” transactional lawyer or law professor into the judgeship, you’re going to get a great deal of “on the job” training on the procedural side, and you’re still going to have to deal with them not knowing every area of substantive law. It just doesn’t make sense.

No one can know enough substantive areas of law to make up for neither knowing the basics of litigation skills nor having participated in a trial. If I had to pick a judge, I would take any lawyer who was tried 10 cases to a jury verdict over a tenured law professor any day of the week