Archive for the 'Judicial Independence' Category
At an hour when ethics reform is getting attention on the campaign trail, it is urgent for South Carolina to consider reforming the way most of its judges are selected, a Hilton Head Island Packet editorial contends.
South Carolina is one of only two states where state legislators appoint all judges from the state Supreme Court to the Family Court, and in South Carolina alone, state legislators are involved in both nominating and appointing judges, “a scenario ripe for favoritism and impropriety,” the editorial says.
“By the time a state judge ascends the bench in South Carolina, they’re beholden to lawmakers in ways that do not serve the public and work directly against the notion of judicial independence,” it asserts. Read more
Is Chief Justice Stuart Rabner of the New Jersey Supreme Court on political thin ice for reappointment next year if Gov. Chris Christie wins reelection this fall? It’s been hinted at before, and now a Washington Post blog heightens the speculation.
“Look for Christie to replace ‘activist’ gay-marriage judge,” a headline for Jonathan Capehart’s blog post declares. Christie announced this week that he was dropping an appeal of a court ruling that legalized marriage for same-sex couples, according to USA Today. Earlier, Justice Rabner had written for a unanimous court that it would deny Christie’s efforts to delay the marriages pending the appeal to be heard in January. Read more
Weighing in on a perennial debate, veteran legal analyst Lyle Denniston explores in a National Constitution Center blog post this question: “Should Supreme Court justices have limits on their time in office?”
Examining the language of the Constitution and of the Founders, Denniston sidesteps offering a direct answer to the question, or to recent advocacy by law professor Eric Segall of the Georgia State University College of Law. Segall recently wrote in a CNN opinion:
“In light of the crucial role the [Supreme] Court plays across the spectrum of social, legal and political issues, the question of how long our justices serve should be reexamined….Other countries use fixed terms, retirement ages or a combination of the two to achieve the necessary independence. There simply is no persuasive reason to allow government officials who have virtually unreviewable power to hold offices for life.”
But hold on a moment, Denniston responds, saying it’s necessary to look at the big picture. Given that judges “shall hold their offices during good behavior” according to the Constitution, he asks, what would be a proper substitute for the lifetime tenure intended to give them judicial independence? Read more
“The carnage of our judicial system must stop,” a New Jersey Law Journal editorial argues in condemning what it sees as a weakening of judicial tenure, and as a result, independence, in an apparent political deal.
Gov. Chris Christie announced in August he would not renominate a veteran jurist, state Supreme Court Justice Helen Hoens, and instead he nominated a sitting lower court judge who is a native of Cuba and would bring ethnic diversity to the court. Christie is a Republican; the state Senate president, a Democrat, said hearings would be held on the new nomination.
In New Jersey, judges stand for reappointment after seven years in office, and once reappointed, they serve until they reach the age of 70. The editorial said removal of Justice Hoens and her replacement by Judge Faustino Fernandez-Vina would set a precedent making it normal for justices to serve but one, seven-year term before being replaced. Christie also declined to renominate another justice in 2010.
Christie had no ideological complaint with Justice Hoens but feared she would not be confirmed by the state Senate, the editorial said. “If the terms of the deal are right, it appears that the governor and Senate are perfectly willing to replace a well-qualified sitting justice for no reason other than political expediency,” it added. Read more
With nominations for the New Jersey Supreme Court embroiled in partisan politics and its vacancies possibly increasing, an academic expert warned that the court’s reputation for independence is threatened.
Since Gov. Chris Christie took the unusual step of declining to renominate Justice John Wallace Jr. in 2010, “[I]t has been one bad surprise after another,” said Robert F. Williams of the Center for State Constitutional Studies at Rutgers University Camden, according to NJSpotlight.com.
“Our judiciary was highly respected around the country. Not everyone agreed with its decisions, but it was scholarly, thorough, progressive — some would say activist — but independent. It is that independence that is being damaged.”
Christie this week declined to renominate another jurist, Justice Helen Hoens, and instead nominated a sitting lower court judge who is a native of Cuba and would bring ethnic diversity to the court, Judge Faustino Fernandez-Vina (see Gavel Grab). His decision not to renominate Justice Hoens could expand from two to three the number of vacancies on the seven-member court this fall. The court currently includes two appointed, temporary lower court judges.
Christie is a Republican. The state Senate is controlled by Democrats. A New York Times editorial touched upon the judicial confirmation stalemate in the context of its discussion of a marriage equality case in the state court system:
“This case is being argued at a fraught moment for the independence and integrity of the state’s court system. On Monday, Mr. Christie announced that he would not renominate an able sitting State Supreme Court Justice, Helen Hoens, for lifetime tenure on the court. It was only the second time that a governor has chosen not to renominate a competent justice in more than 65 years — the first being in 2010 when Mr. Christie declined to renominate John Wallace Jr., who was the court’s only African-American member. Mr. Christie said on Monday that it was his intention to ‘reshape the court’ because the ‘New Jersey Supreme Court has repeatedly strayed from its purview and overstepped its role.’”
From another vantage point, a Record editorial credited Christie. “It may have been the Democrats’ intention not to act on Christie’s court nominations until after the November election, but the governor is now forcing the issue, and he is right to do so,” it said. “All three of Christie’s choices for the Supreme Court deserve hearings before the Judiciary Committee and a vote. The Democrats have flexed their political muscles on this issue for more than a year. Now the time has come for the political showmanship to end.”
In Gov. Chris Christie’s recent verbal attack on New Jersey Chief Justice Stuart Rabner (see Gavel Grab), some critics are continuing to see a grave threat to judicial independence.
(Newark) Star-Ledger op-ed warning about these concerns was written by Phyllis Salowe-Kaye, executive director of New Jersey Citizen Action. Christie “has attempted to make the court more partisan and more divided than it has been in modern history,” she wrote.
Salowe-Kaye specificially referenced the decision by Christie, a Republican, not to reappoint Democratic appointee Justice John Wallace Jr. in 2010. It was the first time a New Jersey governor did not reappoint a justice who had sought it since the state constitution was rewritten 63 years earlier.
Salowe-Kaye asserted that Justice Rabner could be in for the same treatment, and she said Christie’s record may be disconcerting for impartial judges:
“Under the Christie governorship, every nontenured justice must worry whether his decisions could put him in disfavor with the governor and cost him his job. As Rabner said in a statement criticizing the decision not to Read more
Merit selection of top Arizona judges has won a “strong endorsement” from the state’s citizens, and it is one of the best-functioning systems in Arizona government, an Arizona Republic editorial says.
The editorial not only vigorously defends merit selection, it also assails a new state law that increases from three to five the number of candidates that a judicial vetting commission recommends to the governor for vacancies on the state Supreme Court and Court of Appeals:
“This is creeping encroachment on an independent judiciary. The practical result of requiring more candidates will be the appointment of lesser-qualified judges. By rigorous sifting, merit selection has spared Arizona the problems of some other states whose courts are packed with political hacks and cronies.” Read more
New Jersey Gov. Chris Christie, who has repeatedly attacked the state’s Supreme Court as liberal activists, now has singled out Chief Justice Stuart Rabner for criticism. Christie made his remarks after the court said in a 5-2 ruling that Christie could not abolish the Council on Affordable Housing (COAH), created by the legislature, with an executive order.
One legal publication’s editorial board found in Christie’s remarks a “not so thinly veiled threat” that the chief justice would not be reappointed should Christie win reelection.
“[T]he real news here is Gov. Chris Christie’s continuing war on judicial independence, and his determination to replace judges who render decisions he disagrees with,” added the editorial from the New Jersey Law Journal, excerpted in the Blackstone Today blog. The editorial said, “This regrettable state of affairs is a new low for judicial independence in New Jersey.”
According to PolitickerNJ, Christie offered the following criticism in the wake of the court opinion, authored by Justice Rabner:
“Both elected branches of government approved the plan to eliminate COAH. Not surprisingly, this liberal Supreme Court once again ignores that and continues to blindly perpetuate its failed social experiment in housing. The Chief Justice’s activist opinion arrogantly bolsters another of the failures he and his colleagues have foisted on New Jersey taxpayers. This only steels my determination to continue to fight to bring common sense back to New Jersey’s judiciary.” Read more
In the wake of Supreme Court Justice Ruth Bader Ginsburg’s statement that she has no plans to retire (see Gavel Grab), a columnist who is critical of the court asks whether life tenure for its justices may be outdated.
The debate is not a new one, nor is it limited to pundits taking shots at the court. Texas Gov. Rick Perry, when running for the 2012 GOP presidential nomination, proposed limiting all future federal judges, including Supreme Court justices, to 18-year terms. Some scholars have also proposed a rather extreme makeover of the court to capture the benefits of term limits (for background on Perry, click here for Gavel Grab, and on scholarly discussion, click here).
Boston Globe columnist Joe Jacoby wrote an essay this week for The Patriot Post saying “life tenure plus dramatically lengthened life expectancy has made the Supreme Court ever more unaccountable, unreasonable — and geriatric.” Regarding 80-year-old Justice Ginsburg, Read more
Are fair and impartial Oklahoma courts coming under attack? Some critics described a newly announced interim study on term limits for appellate judges as retaliation for rulings that legislators didn’t like.
House Speaker T.W. Shannon (photo), a Republican, said in announcing the study, according to the Tulsa World, “The forefathers created a system of checks and balances. We must make sure that system is not completely controlled by a powerful handful of activists.”
Only days earlier, the Oklahoma Supreme Court invalidated a lawsuit reform law. The court ruled 7-2 the statute was unconstitutional because it violated what is called the state Constitution’s single-subject rule, the Insurance Journal reported.
“We have a great judiciary in the state of Oklahoma,” said Senate Minority Leader Sean Burrage, a Democrat, according to an Oklahoman article. “They’re not a state agency; they are a third branch of the government.” He added, “It seems to me this may be retaliation by the Legislature toward the judiciary.” Read more