Gavel Grab

Sen. Charles Grassley of Iowa has called President Obama’s nominations to three fill vacancies on an influential appeals bench “court packing,” but an editorial in a leading home-state newspaper says Grassley is flat wrong.

The phrase refers to President Franklin Delano Roosevelt’s failed 1937 efforts to add seats to the Supreme Court and then name his appointees, a Des Moines Register editorial says. Today, on the other hand, Grassley has used a “bad analogy,” and “Filling vacancies on the federal courts is the president’s constitutional duty. Unless any of the three is found to be unsuited for the bench, the Senate should confirm them.”

A showdown may unfold in the Senate over Obama’s nominees for the U.S. Court of Appeals for the District of Columbia Circuit, a stepping stone to the Supreme Court. Grassley is a Republican. Read more

Tags: Iowa

The secretive federal Foreign Intelligence Surveillance Court has gotten a measure of attention in the wake of recent disclosures about government telephone and Internet data-gathering programs. Now NPR’s Morning Edition has devoted an intriguing report to changes in the role of the court since the Sept. 11, 2001 terrorist attacks.

Here is reporter Nina Totenberg’s conclusion:

“At bottom, … few if any experts in the Bush or Obama administrations believe that the FISA court has the enforcement teeth it once had. Many of those teeth were pulled out by the 2001 Patriot Act and the 2008 amendments to the foreign intelligence surveillance law. For good or ill, as one expert put it, the court has been defanged, at least until and unless Congress decides to restore some of its powers.” Read more

In these other dispatches about fair and impartial courts:

• Ciara Torres-Spelliscy of the Stetson University College of Law has written a report for the Corporate Reform Coalition entitled, “The SEC and Dark Political Money: An Historical Argument for Requiring Disclosure.” It was discussed in a Sunlight Foundation blog post by Torres-Spelliscy.
• Federal District Judge Thomas Penfield Jackson, who presided over the Microsoft antitrust case, has died, the Associated Press reported.

Arizona’s requirement that would-be voters furnish  proof of U.S. citizenship, beyond an oath on a federal document, was struck down by the Supreme Court on Monday.

The federal National Voter Registration Act “precludes Arizona from requiring a federal form applicant to submit information beyond that required by the form itself,” Justice Antonin Scalia wrote for a 7-2 majority, according to the Washington Post.

At the Daily Beast, election law expert Rick Hasen wrote a commentary entitled, “The Supreme Court Gives States New Weapons in the Voting Wars; What looks like a victory for the federal government may give states new powers to resist Washington’s control over elections.”

The Pennsylvania Supreme Court has rejected a challenge by several state judges to a provision in the state’s constitution requiring judges to retire at age 70.

Voters approved the constitutional amendment 45 years ago in a legal fashion, the court majority said, according to a (Harrisburg) Patriot-News article. If judges want a change, they should consider seeking a constitutional amendment, the court said.

Justice Thomas Saylor wrote for in the 6-0 ruling, “Although certain societal circumstances may have changed since 1968, when the challenged provision was added to the Constitution — and, indeed, some of the original justifications for mandatory retirement may not have reflected the most fair or even the most beneficial public policy — the proper approach of conforming the Constitution more closely with petitioners’ vision of how experiential changes should be taken into account is to pursue further amendment to the Pennsylvania Constitution.” Read more

Tags: Pennsylvania

“Iowans should take warning there are real consequences when justice has a price tag,” columnist Kathie Obradovich wrote in the Des Moines Register, taking note of a recent study by the American Constitution Society.

The ACS report found a significant statistical relationship between campaign money from business groups in state judicial elections and state supreme court justices voting in favor of business interests (see Gavel Grab). However, it did not find such a relationship in retention election systems.

And that spells “good news for Iowa,” Obradovich asserted, because the state’s Supreme Court justices initially are appointed by the governor in a merit-based selection process and later stand in a retention (yes-or-no) election.

Iowa legislators have resisted proposals to make major changes to the state’s merit selection process, and Obradovich interpreted the ACS study to suggest “that was the right decision in terms of keeping Iowa courts free of influences related to campaign fundraising.”

Tags: Iowa

With North Carolina’s public financing program for judicial elections facing its death in the legislature, a (Raleigh) News & Observer editorial defended the program. It also condemned the increasingly powerful role in the state of budget director Art Pope, who reportedly influenced a House vote to kill the program.

To learn about the role played by Pope, see Gavel Grab. The News & Observer editorial was headlined, “Democracy undone by ending funding for NC court races,” and it commended the public financing program:

“Taking public funding away from judicial races is particularly grievous. The public knows it’s unhealthy to have judges elected primarily through contributions from those who have business before them. That’s why the public overwhelmingly favors the state program that provides public funding for candidates running for the Court of Appeals and Supreme Court. Last month, a poll by SurveyUSA found 68 percent of the state’s voters favor the program. Fourteen of the 15 Court of Appeals judges signed a letter supporting it.” Read more

Tags: North Carolina

Does President Obama’s selection of three nominees for vacant seats on a highly influential appeals court constitute “court packing?” A USA Today editorial offers a resounding “no.” In reply, Republican Sen. Orrin Hatch calls for filling other judicial vacancies first.

The USA Today editorial board calls the “court packing” argument of several leading Republican senators an “Orwellian word-twisting” and “ludicrous.” Filling empty, authorized seats on the U.S. Court of Appeals for the District of Columbia Circuit is the kind of job that presidents are supposed to do, it says.

Some Republicans contend there is not the workload to justify filling the three seats. “That’s disingenuous because the unusually complex cases the D.C. Circuit hears give it one of the most challenging and time-consuming dockets of any circuit court,” the editorial contends. It also notes that Democrats advanced the same workload argument when a Republican president was seeking to fill empty seats on the same court.

The editorial concludes with an appeal for an end to the “partisan tit-for-tat.” It states, “Continuing warfare over judicial nominees will undermine the courts and drive Congress’ abysmal ratings even lower.” Read more

The sharply divided and often feuding Wisconsin Supreme Court has decided to hear two cases involving controversial issues, and its ultimate rulings could again bring the court into the limelight again.

Gov. Scott Walker’s Act 10, a law that restricts collective bargaining for many public employees, is involved in one of the appeals. A trial judge in Dane County earlier invalidated the law as it applied to local governments and school district, but it was uncertain whether the decision applied beyond Madison and Milwaukee, the Associated Press reported.

A 2011 Wisconsin Supreme Court election was widely seen as a referendum on Walker’s collective bargaining law.

The court also agreed last week to decide whether Wisconsin’s same-sex domestic partnership law violates a constitutional amendment that voters approved in 2006. It defines marriage as between one woman and one man, a Bloomberg article said.

Tags: Wisconsin