Professor Gregory Ogden Discusses “Challenging Times for Judicial Independence” — National Association of Women Judges

October 18, 2019 | Professor Gregory Ogden participated on the panel discussion, “Challenging Times for Judicial Independence – Administrative to Appellate,” at the National Association of Women Judges 41st Annual Conference. Professor Odgen spoke on the Supreme Court case, Lucia v. SEC, and the impact the decision has on judicial independence for federal administrative law judges. The conference, titled “City of Dream, City of Angels: A Century of Women’s Progress,” took place on October 15-19 in Los Angeles.

From “Challenging Times for Judicial Independence – Administrative to Appellate”

Independence of the judiciary is an essential component of our democratic system of government. Yet challenges to it are ever present.  How judges are selected is a major factor. No system is perfect. Even our life tenured federal judges have felt pressures of late. State judges who run for office, or retention, face a special set of challenges.  Administrative judges at both the state and federal level face special challenges given the inherent controls of the administrative agencies they serve. A new set of challenges has arisen as a result of the Supreme Court’s decision in 2018 which held that the system used by the SEC for appointment  of its Administrative Law Judges did not comply with the appointments clause of the U.S. Constitution. Lucia v SEC  585 US–  (2018). The Lucia decision was followed by an immediate Executive Order [#13,843, 83 Fed. Reg. 32,755 (July 10, 2018)] which ended the decades long system of appointment of Federal ALJs from a register compiled by the Office of Permanent Management following a merits examination, and replacing the examination system with authorization for direct appointment by agency heads. The decision left a myriad of unanswered questions regarding its ramifications for federal and state judges at all levels. Our panel of experts will explore the effect of the LUCIA decision and its possible ramifications at all levels of the judiciary, federal and state, trial and appellate, administrative and judicial.

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