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By Bill Altreuter

At the Volokh Conspiracy Jonathan H. Adler opines that "For many, the selection of federal judges is one of the most important things a President can do," and that something similar can be said about the appointments governors make to state courts. He cites Minnesota Governor Tim Pawlenty, arguing that Pawlenty's upcoming pick to the Minnisota Supreme Court "could reveal something about Pawlenty?s political aspirations," and notes that "conservative activists had soured" on Florida Governor Charlie Crist over his picks for Florida?s high court.

I think the premise here is hilariously flawed. Lawyers care about judicial appointments; almost nobody else does. This is especially true in the context of state court judges. As evidence I'd point to the media coverage that such appointments receive. An appointment to the highest court in a state might get front-page coverage, but there'll be precious little about the legislative hearing that follows, and I can't tell you the last time I saw television coverage of even the appointment.

In addition, although state high courts deal with indisputably important issues, those issues are not, typically, the sorts of things that lay people follow. Let's take a look at three decisions handed down by the New York Court of Appeals this month as an example: Linton v. Nawaz is a memorandum decision on the question of whether the plaintiff met the no-fault threshold. People v. Kadarko involved a question about whether the trial court's failure to fully disclose the contents of a note returned by a jury during its deliberation constituted a "mode of proceedings error". (It's an interesting decision, actually, written by an interesting judge, but I promise you that it will be little remarked upon.) Trupia v. Lake George Central School District is about assumption of risk. It is a notable decision in the context of New York law because it resolves a split among the intermediate appellate courts in the state, and because it clarifies an area that has been murky for about fifteen years. I have not seen this decision remarked upon outside of the trade press, even though it could be argued that it represents a softening of New York tort law in favor of plaintiffs. (It is also interesting because it doesn't completely clarify the question of how assumption of risk is to be applied in the context of scholastic sports activities.)

Let's do one more: American Standard v. Oakfabco. Did the buyer of a business assume the seller's liabilities for tort claims brought in connection with products sold before the acquisition where the injury did not occur until after the acquisition? You're just going to have to read it to find out, because nobody you know is going to be talking about it.

Try this with any three or four recent decisions from your state-- I just picked at random, and you can too. Ain't nobody's political career being affected by the appointment of the judges that wrote these decisions.

Full post as published by Outside Counsel on April 27, 2010 (boomark / email).