Gavel Grab

Additional planned cuts for California’s courts of $544 million for this fiscal year were announced by Gov. Jerry Brown. These cuts would gravely jeopardize public access to justice, judiciary members told the Sacramento Business Journal.

The cuts “will seriously compromise the public’s access to their courts and our ability to provide equal access to justice throughout the state,” Chief Justice Tani Cantil-Sakauye said, according to a San Francisco Appeal article. They “are both devastating and disheartening,” she said.

San Bernardino County Presiding Judge Ronald M. Christianson said the latest cuts will have major repercussions, according to a Press-Enterprise blog. “I think it’s fair to say that our court is going to be a smaller court, with services reduced, longer lines, and delays in processing cases,” he said.

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Tags: California

If Pennsylvanians don’t have any memory of the last judge they voted for, then they’re part of the audience targeted by backers of pending legislation that would switch to a merit-based judicial appointment system, Randy LoBasso suggests in a Philadelphia Weekly blog post.

LoBasso explains how the system would work, with a nonpartisan commission of both lawyers and non-lawyers selecting judicial nominees. Pennsylvania’s governor would in turn select the most qualified candidates.

He points to soaring judicial election spending around the country as  posing potential conflict of interest issues, especially when campaign donors are lawyers who later appear in court before the jurist they helped to win an Election Day victory.

LoBasso also quotes the Urban League as saying the proposed system offers opportunity for candidates who are not wealthy, and for candidates of greater diversity, to attain the bench. He reports support for the proposals by Pennsylvanians for Modern Courts, a watchdog  and JAS partner group.

To learn more about the debate over merit-based systems versus judicial elections, see the JAS issues page on the topic. To learn more about the legislation in Pennsylvania, see Gavel Grab.

Legal analyst Jeffrey Toobin’s recent New Yorker article about Chief Justice John Roberts’ influence in shaping the Supreme Court’s Citizens United decision has gotten some pushback from another prominent court commentator, Tom Goldstein.

A veteran Supreme Court litigator, Goldstein suggests in a post at SCOTUSblog, which he founded, that “the facts reported by Toobin don’t seem to support his conclusions about the Chief Justice,” John Roberts Jr.

Toobin asserted that Chief Justice Roberts personally “orchestrated” Citizens United in 2010 (see Gavel Grab) and that in pushing to broadly change existing law, “the real question for him, it seems, was how much he wanted to help the Republican Party. Roberts’s choice was: a lot.”

Goldstein examines the court’s key steps in deciding the case as reported by Toobin, and questions whether Toobin may have overreached in arriving at his conclusions about Chief Justice Roberts’s role.

A bipartisan task force that recommended sweeping judicial election reforms in Michigan doesn’t go far enough: It applies only “band-aids” when the best approach would be scrapping judicial elections for a merit-based gubernatorial appointment system, New York Times editorial page editor Andrew Rosenthal says in a commentary.

“Elections are the worst way to select judges,” Rosenthal writes. “The process leaves judges beholden to party bosses, wealthy donors, and the whims of the very, very few people who actually bother to vote.”

Rosenthal was reacting to a Detroit Free Press column by the task force’s two leaders, state Supreme Court Justice Marilyn Kelly and senior federal appeals Judge James Ryan, that was the subject of a Gavel Grab post earlier this week.

The task force’s top recommendations were disclosure of all funding sources in Michigan Supreme Court elections, and elimination of the partisan nomination process for candidates for the high court so that it matches the current nonpartisan election system.

Tags: Michigan

Supreme Court Justice Antonin Scalia is known for his quick quips, sarcasm, and cutting remarks from the bench. But has he crossed the line “that separates tough scrutiny from advocacy?” A Bloomberg News article raises that question.

Justice Scalia’s tone this year has raised new criticisms, according to the article, which notes the justice’s accusing the Environmental Protection Agency of “high-handedness,” questioning whether U.S. immigration policy was designed to “please Mexico” and dismissing as “extraordinary” part of the U.S. solicitor general’s defense of the Affordable Care Act.

Charles Fried, a Harvard Law School professor was President Reagan’s solicitor general, said that while Justice Scalia always has asked “pointed” questions, “he came across much more like an advocate” in oral arguments over the health care case. Justice Scalia was an appointee of Reagan’s.

“Someone who had just tuned into the health-care argument might get the impression that the court is a much more partisan institution than it actually is,” said David Strauss, a constitutional law professor at the University of Chicago Law School.

But Ilya Shapiro, a senior fellow at Washington-based Cato Institute, did not think Justice Scalia has gone too far. “He’s sarcastic, and he goes right to the heart of the weakness of the advocate who’s in front of him,” Shapiro said.

Kansas Judge Steve Leben and Minnesota Judge Kevin Burke, the past and current presidents, respectively, of the American Judges Association, raised concerns about a “partisan tone” within the judiciary in a recent essay. You can learn more about their commentary from Gavel Grab.

In these other dispatches about fair and impartial courts:

• In the Austin (Texas) American-Statesman, an article about three members of the state Supreme Court seeking re-election was entitled, “Supreme Court challengers say court is too pro-business.”
• According to FactCheck.org, claims by Rep. Michele Bachmann, R-Minn., that biased “liberal judges” redrew her congressional district “in retaliation for repeatedly standing up to President Obama” are false.
• A work group in Oregon is looking at possible reform of state Appeals Court and Supreme Court elections, according to KLCC.org. To learn more, see Gavel Grab.

The watchdog group Common Cause has asked a federal court to find unconstitutional the practice of the Senate filibuster. “A minority of senators representing a minority of the population of the nation can in fact rule with the current system,” said the group’s president, Bob Edgar, according to a Bloomberg article.

A New York Times editorial said the lawsuit “makes some strong historical points, but it may not be necessary.” Senate Majority Leader Harry Reid recently said two senators who had proposed rules last year to rein in use of the filibuster had been right, whereas he was wrong. Reid should lead a reform effort is he continues in January as majority leader, the editorial said.

Emmet Bondurant, a lawyer and member of the Common Cause board of directors, outlined his case for a constitutional challenge of the filibuster in a 2011 scholarly article, according to a Washington Post commentary by Ezra Klein. “Bondurant makes a strong case,” Klein writes.

Jonathan H. Adler writes in The Volokh Conspiracy blog, on the other hand, “I don’t think this suit will go anywhere,” and Adler spells out his legal reasoning. Adler suggested a challenge to nomination filibusters, as opposed to Common Cause’s suit over filibusters against legislation, “is more plausible” given the Senate’s obligation to “advise and consent” on presidential nominations.

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Advocacy groups that have spent heavily in the 2012 elections may have to disclose the donors who have secretly funded their efforts, as a result of an appeals court order.

On Monday, a U.S. Court of Appeals panel in Washington, D.C., by a 2-1 vote, declined to stay an order by a lower court judge that directed groups running election-related TV ads to identify their donors, according to a Los Angeles Times article.

The Supreme Court endorsed public disclosure in its landmark Citizens United ruling, the two judges in the majority noted. “The public interest is best served by access to more, not less, information,” they wrote.

“It’s the first major breakthrough in overcoming the massive amounts of secret contributions that are flowing into federal elections,” said Fred Wertheimer, president of Democracy 21. “It certainly gives us momentum.”

At issue was a ruling by Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia. She said the Federal Election Commission went too far when it allowed groups that fund “electioneering communications” ads to keep their financiers anonymous (see Gavel Grab). Such ads clearly seek to sway voters, even if the ads stop short of specifically calling  for a candidate’s election or defeat.

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If citizens want local judges to try cases impartially, why select those judges in a process based on political partisanship? Jess Brown, a professor of justice studies and political science at Athens State University in Alabama, poses that question in a Huntsville Times essay.

Brown focuses on two recent episodes. In one, Roy Moore recently won the Republican primary nomination for his old job as chief justice for the state Supreme Court (see Gavel Grab), despite his removal from his post in 2003 by his peers for what Brown calls ethical violations. In the second, Chris Messervy, a local candidate for District Court judge, was denied by the GOP’s state-level governing entity a certificate of nomination from the party. Messervy had multiple violations of Alabama campaign finance disclosure law.

Brown asks, “Both the Moore nomination and Messervy disqualification should raise a fundamental question for civic-minded Alabamians. How should we select judges in our state? Should we continue to elect judges, and perhaps others in the judicial branch, on a partisan basis?”

After tracing the history of Alabama judicial elections, and discussing the critical importance of impartial and well qualified judges, he points to the Moore and Messervy episodes as meriting a “wake-up call for conscientious judges and lawyers affiliated with both parties or with neither party. Those who can speak with authority about judicial selection, such as leaders in the bar associations, should manifest the political courage necessary to advocate a change in Alabama’s judicial selection.

Tags: Alabama