February 13, 2013

section9 asked: I might have missed you blogging about it already, but would you care to share your thoughts (if any) on Governor Cuomo's appointment of Jenny Rivera to the NYS Court of Appeals?

1) From a bird’s eye view, I love Rivera’s record.  A few excerpts:

Professor Rivera is a former Administrative Law Judge of the New York State Division of Human Rights, a former member of the New York City Commission on Human Rights, and served as the Special Deputy Attorney General for Civil Rights for New York State Attorney General Andrew M. Cuomo. As Special Deputy Attorney General she assisted in the development and implementation of the Attorney General’s civil rights agenda, supervised the Civil Rights Bureau and organized and held statewide outreach sessions on civil rights issues.  

[Rivera] was also a lawyer for the Legal Aid Society’s Homeless Family Rights Project where she represented homeless families in federal and state class actions and administrative hearings, and served as an Associate Counsel for the Puerto Rican Legal Defense and Education Fund, where she worked on education and employment discrimination, equity and testing issues, gender equality and language rights discrimination.

Her scholarship ain’t too shabby either.  She particularly wins brownie points with me for writing about § 1983 liability in police misconduct cases:

Her scholarship includes, “An Equal Protection Standard for National Origin Subclassifications: The Context that Matters,” “Extra! Extra! Read All About It: What a Plaintiff Knows Or Should Know Based On Officials’ Statements and Media Coverage of Police Misconduct for Notice of a § 1983 Municipal Liability Claim,” “The Violence Against Women Act and the Construction of Multiple Consciousness in the Civil Rights and Feminist Movements,” “Domestic Violence Against Latinas by Latino Males: an Analysis of Race, National Origin, and Gender Differentials,” and “Puerto Rico’s Domestic Violence and Intervention Law and the United States Violence Against Women Act of 1994: The Limitations of Legislative Responses.” She is also the author of a 1997 study and a 2003 follow up study on the availability of domestic violence services for Latinas in New York State.

2) I think it’s a little silly for Republicans to claim Rivera has no judicial experience.  For starters, she served as an Administrative Law Judge for the NYS Division of Human Rights.  As a person who’s argued before ALJ’s, I can tell you that there is nothing fake about an ALJ.  In fact, ALJ’s often have more authority than a traditional judge, because their power comes almost entirely from statute.  In NYS Unemployment Insurance hearings, the ALJ’s don’t even have to follow the NY CPLR evidence rules.  Such exemptions don’t apply in New York’s “courts of record.”

Even if you discount her ALJ service, however, it remains the case that Rivera does have judicial experience.  She clerked for Sotomayor, and also served as a Law Clerk in the United States Court of Appeals, Second Circuit.  Law clerks are the lifeblood of the judiciary.  In many cases, it is the clerks—and not the judge—who are writing the decisions.  There is little, if any insight into the judicial process that a judge would have which his or her law clerks would not.  They are simply too intimately involved in the business of the court for anyone to convincingly argue that a clerkship /= judicial experience.  Particularly when the clerks draft many of the opinions of the court.  This is analogous to the role of magistrate judges, who in the federal system, draft advisory opinions that are often adopted by the district courts.

So all in all, I think she’s a fine choice for the NYS Court of Appeals.  I think it’s ok to be skeptical of someone who’s never been a judge, but anyone who thinks an ALJ isn’t a real judge has, frankly, never argued a case in front of an ALJ.

April 1, 2012
"One under-reported theme this week was the gulf between all those lower court decisions upholding the act and the reception the statute received from the Court’s conservatives. If the law is as patently unconstitutional as some of the justices painted it to be, then why wasn’t it routed at the lower court levels? Why did conservative judges like 6th U.S. Circuit Court of Appeals Judge Jeffrey Sutton, an appointee of George W. Bush, endorse it? The dozens of lower court judges who considered the law a valid exercise of Congressional power are just as smart as the justices, aren’t they? And they are supposed to be following existing precedent, aren’t they? It’s the Supreme Court that’s the outlier here."

Andrew Cohen.  Not that I pretend that Andrew Cohen reads my blog, but I’d offer the same comments that I made earlier with respect to the Supreme Court’s approach to oral argument.  Tough questions at oral argument don’t necessarily mean that a justice is going to vote against a law; sometimes they pepper litigants with tough questions because they want the litigants to help the justices themselves respond to foreseeable objections when they go to write their opinion.  As frustrating as it can be to hear Scalia flippantly conjure up nightmares of  ’broccoli bondage,’  it’s certainly conceivable that he was going down that road with an ulterior motive.

I do, however, take Cohen’s point with regard to the lower circuits.  Though I think that merely speaks more to the idea that the Supreme Court is as much a political institution as it is a legal institution.  The only way judges get on the Supreme Court is by being hand-picked by a politician for the job.  There’s plenty of extremely competent jurists of diverse political and legal philosophies who are qualified to sit on the High Court.  But the people who make the cut are selected with certain policy goals in mind, and not simply because they’re qualified judges.

April 8, 2011
Voter Fraud In Wisconsin, Ctd.

Cunningham think the votes are suspect:

[Waukesha County Clerk Kathy] Nickolaus says repeatedly that she imported the data into Access, but through a process of “human error”, she “forgot to save”.  Then come the tears, repeatedly, throughout her presser.

Here’s the problem.  Microsoft Access (any version) doesn’t ask you to save. When you enter data into a table, it automatically updates the underlying database.  If you close the database accidentally, the data you entered (or imported, in the case of Nickolaus) remains.  If you stop to take a phone call from your buddy the governor (for example), your data will still automatically save.

That’s not the only fishy thing.  The voter turnout was supposedly about ~25% of Waukesha right up until the ‘blackout’, when it suddenly jumped to an astounding ~75%:

On Tuesday, shockingly-large turnout suddenly emerged from Waukesha County, which did not comport with either the results of previous spring elections, or even internal estimates from city officials mid-day. In fact, a Waukesha City Deputy Clerk said at 1:18pm that turnout was very typical, predicting somewhere between 20 to 25 percent. As Tuesday night wore on, reporting in Waukesha County stopped altogether for hours, leaving observers to wonder what was going on. Then suddenly, results suggesting massive turnout started to pour in rapidly with Prosser adding dramatically to his total by a 73-27 percent margin.

That’s not all, either.  Kathy Nickolaus has a history of being criticized (and audited!) for improper vote counting procedure.  I can find accusations of impropriety as early as August of last year:

Nickolaus said she decided to take the election data collection and storage system off the county’s computer network - and keep it on stand-alone personal computers accessible only in her office - for security reasons…

Director of Administration Norman A. Cummings said because Nickolaus has kept them out of the loop, the county’s information technology specialists have not been able to verify Nickolaus’ claim that the system is secure from failure.

“How does anybody else in the county know, except for her verbal word, that there are backups, and that the software she has out there is performing as it should?” he said. “There’s no way I can assure that the election system is going to be fine for the next presidential election.”

When she was called on it, she didn’t take the matter very seriously.  In fact, she refused to adopt changes recommended by the County Board and dismissed them with a smirk:

Several committee members said they were uncomfortable with Nickolaus’ refusal to adopt the recommendations.

During one part of the discussion, [Chairman Jim] Dwyer erupted in exasperation at Nickolaus’ facial expressions.

“There really is nothing funny about this, Kathy,” he said, raising his voice. “Don’t sit there and grin when I’m explaining what this is about.

“Don’t sit there and say I will take it into consideration,” he said, asking her pointedly whether she would change the passwords.

“I have not made my decision,” she answered. After supervisors continued to press the issue, Nickolaus indicated she would create three different passwords.

“This isn’t that big of a deal. It isn’t worth an argument,” she said. “This is ridiculous.”

Nickolaus also said she would make her own assessment of when to back up computer programming for election ballots - and store the more frequent backup in another building, as the auditor recommended.

What about Kathy Nickolaus herself?  Well, she’s described by the Weekly Standard as “a Republican activist”:

[T]he discovery of the extra votes is sure to stoke the embers of the heated battles that have taken place across the state over the past two months, particularly because Nickolaus, the woman at the center of the controversy, is a Republican activist. A posting on the website of the Republican Women of Waukesha County indicates that Kathy Nickolaus recently served as president of that group.

I’m not one to make partisan accusations without a reason, but this seems like, at best, an extremely suspect situation.  Couple it with her previous status as the President of the ‘Republican Women of Waukesha County’, her refusal to address the security flaws in her system, her lies about Access not saving her documents, and 50% of the entire county showing up between 1PM and when the polls closed and you have to admit that there is something seriously, drastically wrong here.

Well, in all fairness, drawing attention to the fact that she’s a Republican activist is making partisan accusations on an ad arguendo basis.  But the point about voter participation suddenly jumping by 50% does raise suspicions.

As I’ve said before, there are plenty of ways to confirm/rule out voter fraud: an independent investigation, a lawsuit, and/or FOIA-style requests can resolve this question pretty quickly.  So interested parties ought to pursue those routes if they genuinely think there was foul play here.  Keeping government officials honest is never a bad thing, regardless of party affiliation.

April 7, 2011
Oh my: Prosser now leads in Wisconsin after Winnebago County adds 244 net votes to his total

shortformblog:

40 votes. That’s how close this race is.

This is the most excited for a judicial race I’ve ever seen anyone get (not shortformblog specifically, but the population generally).  Most people just vote down the party line on judges when they go to the polls because they know jack shit about the judicial candidates.  It’s actually a little depressing, to be honest with you, that this heightened level of interest is only being brought on by the fact that the elections are taking place while politically charged lawsuits are being filed.  Otherwise, average people probably wouldn’t really care about this election, which is sad, but understandable.

as an aside, this is part of the reason I feel judges should be appointed and not elected; the average voter does not understand the complexities of civil law or the criminal justice system, nor do they care enough about what a judge actually does, in terms of procedure and policy making via statutory interpretation.  Having judges elected by popular vote largely on the basis of the party whose nomination they’ve garnered is not conducive to a depoliticized judiciary, nor an intelligently selected one.

(Source: antigovernmentextremist, via shortformblog)

April 6, 2011
"It’s obviously a busy news cycle, but this really shouldn’t fall between the cracks: Barack Obama and the Democratic Senate are still at best treading water on judicial nominations. That means more justice delayed (and, as the saying goes, justice denied) for many Americans; it also means that Democrats are steadily wasting an important opportunity to turn electoral victory into policy gains."

Obama and Dems still treading water on judicial nominations (via ryking)

I’ve got to agree, both politically and from a policy standpoint.  Politically, the Democrats are, objectively speaking, wasting a very good opportunity to derail the budget talks by pushing forward their judicial nominees.  If the GOP criticizes dem nominations, they can just say “it’s good to see that the GOP cares more about denying justice to Americans than focusing on budget talks.”

On the other hand, the judicial filibuster showdown over Bush nominees back in 2006 may still haunt the current Dem senate; So any attempt to filibuster by the GOP in the senate would give the GOP an excuse to bring up the Dems’ filibuster in the past, and the whole thing would be a wash.

Either way, the appointment of judges is one of the most woefully political processes in America: less judges have been confirmed under Obama than any time since Nixon was president.  This was pointed out by a panel of bipartisan judges writing for the 9th Circuit, urging Congress and the President to act on judicial nominees.  This is creating a crisis in our federal court system that needs to be addressed.  Justice delayed is, in fact, often justice denied.

(Source: diadoumenos)

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