Posted by marykeating on March 19, 2010 under Court news | 
Photograph by Franz Jantzen, Collection of the Supreme Court of the United States.
The Supreme Court of the United States heads the most publicity shy branches of government. The politicians in Congress need publicity for reelection, and many seem to crave it. The President has no choice but to live in a fishbowl. But the Supreme Court Justices are appointed and have no need for reelection or popularity. Some probably shy away from publicity because they are naturally scholarly types, and others do so because judicial ethics and customs put a tight rein on what judges say in public. To date, there is no videotaping of arguments, and the Justices have not looked kindly on lower courts’ admission of cameras into the courthouses.
Even with these limitations, though, the Supreme Court building is open to the public, and welcomes anyone to attend oral arguments on a first come-first serve basis. The building itself is magnificent, and the courtroom especially is awe-inspiring (and not very large). Regardless of whether one is inclined to visit, the newly redesigned Supreme Court website is terrific.
Information to guide visitors provides thorough information about the argument calendar, what cannot be brought into the building, and how to get to the court. Without leaving your desk, researchers, or just interested citizens, can find lots of information including opinions, transcripts of arguments, and sources for briefs. (The Supreme Court link for recent briefs is not working as of this writing.)
Posted by marykeating on March 3, 2010 under Court news |
The Senate voted 99-0 to approve the nomination of Barbara Keenan to the Fourth Circuit Court of Appeals. As reported here before, the pace of replacement judges had been glacial. The Fourth Circuit has an enormous workload, and part of the consequence is that many opinions are unreported and short. Reported opinions are helpful to litigants and their lawyers as precedential. This is especially true in the employment arena, which changes rapidly, and is so fact-dependent. The Fourth Circuit is historically quite conservative; but when the Supreme Court changes the interpretation of discrimination laws, the Fourth Circuit has to react.
Judge Keenan is the first woman jurist from Virginia to serve on the Fourth Circuit
Posted by marykeating on February 14, 2010 under Court news, Discrimination in employment |
As Andy Borowitz might write, this just in from “Duh Magazine:” two new studies prove that the race or gender of a judge is strongly correlated with the outcome of cases involving race and gender discrimination.
One study found that in sexual harassment cases, plaintiffs were twice as 
likely to win if the judge was female. The other study focused on judges of different races, and learned that plaintiffs lost just over half the time if the judge was African-American, but lost 81% of their cases heard before a white judge.
The ABA discussed the studies in a program called about “Diversity on the Bench: Is the ‘Wise Latina’ a Myth?” Although Justice Sotomayor took heat for her comment, it rang true for many. These studies concluded that the judges applied the law correctly. The facts, though, are viewed differently depending on whose glasses are used. We have all seen this phenomenon at work; a remark that seems innocuous to one person is perceived as a grievous insult by another. A series of job assignments looks neutral to the white male, while the women easily interpret the pattern of discrimination.
We all bring the experiences of ourselves and our friends to the task of judging what happened in a stranger’s case, and was it motivated by discrimination. Employment discrimination plaintiffs often choose to have juries decide their cases, since the accumulation of experience helps cut through bogus defenses. Also, since many judges have excelled their entire lives, they have never felt held back by discrimination. I believe some have grown to believe that discrimination does not truly exist, unless it is so blatant that there can be no alternative interpretation. (And those cases settle.)
The problem arises with these blinders because federal courts decide so many cases on summary judgment. The judges look at the facts as presented by the lawyers, affidavits, and depositions, and frequently decide that there are not enough facts to warrant a trial. And this is where the accumulation of experience, the perspective of the gatekeeper, does not let in the possibility that subtle actions whisper discrimination.
Posted by marykeating on November 10, 2009 under Court news |
Yesterday the full Senate finally confirmed Judge Andre M. Davis to the Fourth Circuit. As reported here before, the seat that Judge Davis will take has been vacant since Judge Murnaghan’s death in 2000.
This opens a seat on the United States District Court for the District of Maryland. The Senate has a lot of nominations before anyone will even be placed for a vote for this seat. The scuttlebutt around Baltimore is that many very well-qualified jurists will apply for the seat, and probably some practitioners as well.
Posted by marykeating on November 5, 2009 under Court news |
This blog has previously discussed the difficulty of delivering justice to this region, in light of five openings (out of 15) on the Fourth Circuit Court of Appeals. Two nominees have been given the green light by the Senate committee, but await full votes by the Senate. The Senate, of course, has the constitutional role of advising and consenting to judicial appointments. This role gives it the power to hold up appointments. The dusty seat reserved for Judge Andre M. Davis has been vacant more than ten years.
Well, at least President Obama is doing his part. Yesterday he nominated two North Carolina judges to the Fourth Circuit. President Clinton had earlier tapped Judge James Wynn Jr. of the North Carolina Court of Appeals; Judge Davis had the same experience of having his nomination die after a Republican took the White House. Judge Wynn is also African-American. The Fourth Circuit’s geographical region has a high population of African-Americans, so adding to the diversity of the Court would be fair and add to its perceived legitimacy. The other nominee, Judge Albert Diaz, is Hispanic. There are no current Hispanic members of the Court. More to the point for my clients, Judge Diaz has been working as a special trial judge for complex business cases. Often judges are chosen from the ranks of former prosecutors, and therefore their civil experience is meager.
Posted by marykeating on November 1, 2009 under Court news |
Barbara Keenan earned unanimous approval from the Senate Judiciary Committee to take an open spot on the Fourth Circuit Court of Appeals. Judge Keenan has been a judge in every level in Virginia state courts, according to Legal Times. As reported here earlier, the Fourth Circuit has long been understaffed, with one of its openings vacant for ten years. Judge Andre Davis, from the U.S. District Court for the District of Maryland, has been waiting for a vote from the entire Senate since June.
Posted by marykeating on October 13, 2009 under Court news |
The Senate Judiciary Committee has before it seventeen nominations to the federal courts, none of which have yet been confirmed by the Senate as a whole.
It is too early to conclude that the minority in the Senate will remain successful in keeping the brakes on the process. Progress is important; as Carl Tobias points out, the federal judiciary is overly stocked with white men. (Carl Tobias is Williams Professor at the University of Richmond School of Law.) “Eighty-four percent of federal judges are white. Female jurists comprise 20%. African-Americans constitute 8%. Out of the almost 1,300 sitting federal judges, a mere 11 are Asian-American and only one is a Native American. A significant percentage of the 94 federal districts has never had a jurist who is a woman or a person of color.”
Two of the pending nominations are for the Fourth Circuit, which has been running shorthanded for years. The glacial process impairs justice. There are five openings on that court, one third of the fifteen judicial seats. In the absence of judges, appellants cannot get the attention or promptness they deserve, and practitioners suffer because fewer opinions are polished for publication.
Judge Andre M. Davis of the United States District Court for the District of Maryland has been nominated for a second time (his died when the Senate failed to take action before President Clinton’s term ended). Judge Davis has been a judge since 1987; the Fourth Circuit would be his fourth court. On June 4, the Senate Judiciary Committee voted him qualified, and sent the nomination to the full Senate. Now that Justice Sotomayor has been confirmed (two months now), the Senate should fill this seat, vacant for ten years now.
Judge Davis is well-regarded, and should easily obtain the needed votes, if the Senate just gets to it. His record is not overly liberal; in fact, the National Council on Independent Living opposes Judge Davis’s elevation because of his record on ADA cases, strictly applying the definitions of disabled to deny coverage under that law.
President Obama has also nominated a Justice of the Supreme Court of Virginia, Barbara Milano Keenan. She recently had a hearing before the Committee.
Posted by marykeating on July 14, 2009 under Court news |
Chief Judge Karen Williamson of the Fourth Circuit announced last week that she will retire early on disability due to early-onset Alzheimer’s disease. Appointed by George H. W. Bush, Judge Williamson has been on the Court of Appeals for 17 years.
There are now five openings on the Fourth Circuit. Judge Andre M. Davis of the United States District Court for the District of Maryland has been nominated, and has gotten through the Senate Committee; no vote has been held by the full Senate, which of course is focusing on Judge Sotomayor’s nomination. But the Fourth Circuit has had several vacancies for some years, all through the George W. Bush years. If President Obama manages to fill all of the open seats, the much-vaunted conservative bastion of the federal system may drift to the center. The extent to which this will help employment discrimination plaintiffs will depend in part on the Supreme Court, which does not seem to be heading toward the center anytime soon, barring an unexpected vacancy in the conservative majority. Still, with the Fourth Circuit up to full strength, perhaps there will be more attention paid to appeals that may now be routinely disposed of per curium.
