Last year,  the U.S. Chamber of Commerce Institute for Legal Reform commended Arizona’s merit selection process for picking judges as the nation’s best (see Gavel Grab.)

The state is home for retired Supreme Court Justice Sandra Day O’Connor, who has traveled widely to champion Arizona’s kind of system for choosing judges. It  seeks to insulate the courtroom from politics. But critics have asked a state Senate committee to consider revising the appointment and retention system in order, they say, to prevent judicial activism, according to an Associated Press article.

Len Munsil, the 2008 Republican nominee for governor, explained, “When judges and lawyers pick the new judges, the temptation to judicial activism is almost insurmountable, as the intended checks and balances of the system have effectively been removed.”

Justice O’Connor, on the other hand, wrote to the state Senate Judiciary Committee, “We have an excellent judiciary at present, and in my opinion it would be against the best interests of Arizona to increase the partisanship in the selection of its judges.”

Currently  judges on the Supreme Court, two appellate courts and trial courts in and around Phoenix and Tucson are named through merit selection. Judicial selection commissions hold public meetings, and a list of candidates is forwarded to the governor, who selects the judges, according to a Legal Newsline report. Following a two-year term, judges face voters in retention elections.

Critics want to require Senate confirmation of the governor’s picks, and reconfirmation by the Senate every four years. For it to appear on the ballot in November, a resolution to revise the system would have to pass the House and Senate first (state capital in photo above.)

Arizona Chief Justice Rebecca White Berch told the AP she feared the proposal would politicize the process and make judges think about making senators happy, instead of judging by the law:

“That’s not how the rule of law is supposed to operate…There ceases to be a rule of law at that point.”

You can learn more about appointment/retention systems from Justice at Stake’s issues page.

The practice “presents a cost to the American taxpayer … that is neither meritorious nor reasonable,” Judge Sam Sparks wrote in an order, according to an article in the Austin American-Statesman.

“The expenses of prosecuting illegal entry and re-entry cases (rather than deportation) on aliens without any significant criminal history is simply mind-boggling,” Sparks said. The newspaper reported that until  about two years ago, when enforcement strategy was shifted, such illegal immigrants would have been simply deported and not prosecuted.

The judge’s docket, and many others in Texas, is bulging with defendants facing immigration crime charges.

You can learn more about the federal government’s crackdown on illegal immigration, and its consequences for the courts, from Justice at Stake’s issues page.

The reasoning that Justice Roberts articulated about reversing past rulings “is an incredibly muscular vision of when you would overrule precedent,” said Pamela Harris, director of Georgetown Law’s Supreme Court Institute. Citizens United reversed precedent in striking down restraints on corporate spending on political elections.

In related matters, the Federal Election Commission announced its enforcement plans in the wake of Citizens United, and the rules it will no longer enforce. Jonathan Alter wrote favorably in Newsweek about Sen. Dick Durbin’s bill for public financing of congressional elections. In Salon, Andrew Leonard’s commentary on Citizens United was headlined, “Mr. Corporation goes to Washington.”

Enough people are talking about one or more possible vacancies on the high court (see Gavel Grab) that the Wall Street Journal trotted out an article on Democratic thinking, and division, over a possible new pick. Included in its early short list: Solicitor General Elena Kagan, appeals Judge Merrick Garland of the District of Columbia Circuit, and appeals Judge Diane Wood of the 7th Circuit.

In the latest round, a Philadelphia Inquirer editorial contended that moving the venue out of New York City for the alleged 9/11 co-conspirators is all right, with this major caveat:

“As long as these men are tried by federal judges under rules that provide for due process, their day in court will meet the president’s objective of bringing more of the nation’s antiterror efforts under the rule of law.”

The U.S. Justice Department, meanwhile, asked  dismissal of a case in which the Supreme Court had agreed to consider whether a judge can order release into the United States of detainees wrongly held at Guantanamo (see Gavel Grab). Because of re-settlement offers to Muslim Uighur detainees in the case, the government said it could be dismissed as “improvidently granted,” according to SCOTUSblog. The case has a major potential impact, SCOTUSblog reported:

“A dismissal of the case would allow the government to avoid, at least temporarily, a ruling that might keep within the courts some of the power to decide the fate of prisoners at Guantanamo Bay, after they have been cleared for release.”

The Washington Post called in an editorial for creation of a clear set of standards governing indefinite detention for the very worst terrorism suspects, and for establishment of a national security court “that would give detainees robust adversarial rights and give the judiciary the authority to oversee such continued detentions.”

In an article, the New York Times examined the rigorous political battle over terrorism that has been renewed by the Christmas day bombing attempt on a Detroit-bound airliner, and President Obama’s own pushback against Republican critics. He told CBS News:

“The most important thing for the public to understand is we’re not handling any of these cases any different than the Bush administration handled them all through 9/11.”

Further stories can be found in Time magazine, Newsweek, and Salon. To learn more background, read these earlier Gavel Grab posts.

The Sheboygan Press has published an editorial headlined, “Courts make it easier for money to do the talking.” The editorial strenuously objects to the recusal rule adopted by the state Supreme Court:

“We’ve long advocated for ways to remove the influence of special interests in races for judicial seats and back the idea of having these campaigns funded by public money, including the Impartial Justice Bill, which provides a mechanism for public financing of supreme court elections.

“But for the court to not require justices to step aside in cases where litigants are also major contributors to their campaigns further erodes confidence in the justice system.”

The editorial also discussed the U.S. Supreme Court’s Citizens United decision, saying “corporations and unions will be able to easily drown out the opposition and elections will become even more expensive than they now are.” You can learn more about the Wisconsin recusal policy from Gavel Grab by clicking here, and about Citizens United by clicking here.

Lawyer James Bopp Jr., a major player (see Gavel Grab) in framing the litigation that led to last month’s landmark Citizens United decision, seems to give some hints in a commentary for AOL News.

Citizens United “is likely to affect the constitutionality of other campaign finance laws,” Bopp writes, and he lists these areas: federal laws that “that severely restrict contributions to national party committees;”  laws that restrict corporations and labor unions from contributing directly to federal candidates; and certain disclosure laws. Bopp refers specifically to those requiring disclosure of donations to candidates of as little as $25.

“While disclosure of contributions to candidates is generally a good thing,” Bopp elaborates, “laws requiring disclosure of such low amounts doesn’t provide any useful information, and the courts must protect all contributors from harassment and intimidation.”

That Bopp offers even partial acceptance of any campaign disclosure laws is a bit of a surprise, and perhaps may be taken with a grain of salt. Following the Citizens United ruling, he told The New York Times:

“We had a 10-year plan to take all this down…And if we do it right, I think we can pretty well dismantle the entire regulatory regime that is called campaign finance law.”

The fallout from Citizens United brings two commentaries on how to fortify campaign finance laws in the wake of the ruling. Former Republican Sen. Warren Rudman of New Hampshire favors public financing of congressional elections in a Washington Post column headlined, “Republicans losing their way on campaign finance reform.” The New York Times, in an editorial, supports legislation that would furnish “legitimate antidotes” to Citizens United, which the Times says “amounted to constitutional sanction to unlimited corporate and union campaign contributions.”

For further debate, you can check out Curt Levey’s “Apocalypse Imagined,” in The Hill; and Mark Green’s “Why Citizens United is a Fraud: a Guide for Non-Lawyers,” in Huffington Post.

In an interview with the Politic, former New York Times reporter Linda Greenhouse says about Citizens United, “My immediate reaction is that the court has finally come out of the closet, and it’s no longer the minimalist court that Chief Justice Roberts likes us to think it is.”

While Justice at Stake said Citizens United poses grave dangers to America’s elected state courts, the group’s executive director, Bert Brandenburg, also said the decision had a “silver lining.” States can and should require all who ‘pay to play’ in court elections to fully disclose their financial sources,” he said in a statement.

In January, U.S. District Judge Roslyn Silver ruled it was  unconstitutional to furnish additional taxpayer dollars to publicly-funded candidates if their privately-funded opponent exceeded a spending limit set by the state, according to an article in the Arizona Daily Star.

This week, the 9th U.S. Circuit Court of Appeals, on a 2-1 vote, allowed the system to stay in place at least for now; you can read the order here. The stay permits lawyers for the state and for the Clean Elections Institute to prepare their appeal of Judge Silver’s decision; a hearing is planned for mid-April.

Judge  Silver said the  matching-funds provision violates the First Amendment because it causes candidates without public funding  to limit their own campaigning, fundraising and  spending of their own money, the Arizona Republic reported. You can read her opinion by clicking here.

The 9th Circuit extended indefinitely Judge Silver’s own temporary stay, according to the Associated Press. In June, distribution of matching funds is scheduled in Arizona for candidates who qualify.

An earlier Gavel Grab post has background on the legal challenge in Arizona.

Wisconsin recently became the third state to adopt public financing for state appellate court elections. You can read about its law, and about debates over legality of public financing plans for judicial elections, in Gavel Grab.

The state Supreme Court has been asked to decide whether the existing system threatens judicial independence. The case began with an attempt to oust a family law judge (see Gavel Grab.)

State Senate President Pro Tem Glenn McConnell, a Republican, said legal research indicated there was “minimal risk” in proceeding with the elections. “We’re very confident of our legal position in this — that the process we have is constitutional,” he was quoted by the Post and Courier as saying.

The network said lawyers for Obama are “working behind the scenes” to prepare for that possibility.

If a vacancy or vacancies develop, it is unclear whether Obama could nominate replacements who would vote in a liberal way on ideological matters as consistently as Justice Stevens and Justice Ginsburg, due to increasingly partisan confirmation politics. Stuart Taylor of the National Journal told ABC News:

“The most important thing that has changed is the downward spiral of partisanship in judicial nominations. It’s reached a point where either party is going to make a fight on almost anyone unless the candidate is displeasing to the base of the president’s party.”

To learn more about the role of partisanship in judicial confirmation battles, visit Justice at Stake’s issues page.

NY Times: What Price Politics?
Editorial – 2/5/2010

NY Daily News: All corporate speech is created equal, and it should all be free
Joshua Greenman – 2/5/2010

AOL News: Debate: Election Laws Should Protect First Amendment
James Bopp Jr. – 2/5/2010

Huffington Post: Sherrod Brown: Citizens United Decision Will Make Congress Even More Timid
Sam Stein – 2/4/2010

Washington Post: Republicans losing their way on campaign finance reform
Warren Rudman – 2/5/2010

The Hill: Apocalypse imagined
Curt Levey – 02/04/2010

Citizens United: Why Citizens United Is a Fraud: A Guide for Non-Lawyers
Mark Green – 2/4/2010

Blog of Legal Times: Idea of Banning Books Hangs Over Campaign Finance Debate
David Ingram – 2/3/2010

GUANTANAMO BAY DETAINEES/COURTS

AOL News: Looking to History for a Solution to 9/11 Trial Controversy
Russell Berman – 2/5/2010

CNN: Why the 9/11 trial belongs in New York
Peter Bergen and Karen Greenberg – 2/4/2010

NATIONAL SECURITY/COURTS

CNN: Politics driving terror case complaints?
Matt Smith – 2/4/2010

Politico: John Boehner: President Obama has ‘pre-9/11 mentality’
JAKE SHERMAN – 2/4/2010

BusinessWeek/Bloomberg: Underwear Bomber Got Worst Treatment Law Allows
Ann Woolner – 2/5/2010

The Hill: Restoring American values beyond Guantanamo
John Cloonan and James K. Robinson – 2/4/2010

BAGRAM DETAINEES/COURTS

Jurist/Paper Chase: Federal jury convicts Pakistani woman of attempted murder of US personnel
Matt Glenn – 2/4/2010

The International News: Outrage against Manhattan jury decision
Muhammad Anis – 2/5/2010

Al Jazeer English: Siddiqui’s ‘missing years’ (video)
2/5/2010

Truthout: Bagram: Graveyard of the Geneva Conventions
Andy Worthington – 2/4/2010

MERIT SELECTION

Madison Capital Times: The danger of appointed judges
Editorial – 2/4/2010

West Virginia Record: Magistrate Judge merit selection panel named
Chris Dickerson – 2/4/2010

SOUTH CAROLINA JUDICIAL APPOINTMENTS

Charleston Post & Courier: Several judges re-elected
2/4/2010

IMMIGRATION/COURTS

LA Times/AP: Arizona judge mulls sanctions against Maricopa County
Sheriff’s Office for destroying records
JACQUES BILLEAUD – 2/4/2010

MSNBC/AP: No asylum ruling for Obama’s aunt
2/4/2010

USA Today/The Oval: Obama not involved in deportation hearing of aunt
David Jackson – 2/4/2010

FEDERAL NOMINATIONS

San Francisco Chronicle: Senate panel backs Obama’s judge nominee
Bob Egelko – 2/5/2010

San Francisco Chronicle: On to the full Senate
Editorial – 2/5/2010

Chicago Tribune/AP: Obama nominates Oakland judge to Detroit US court
2/4/2010

State Bar of Wisconsin: Senate Judiciary Committee recommends Louis Butler as Western District judge
Adam Korbitz – 2/4/2010

POLITICAL CORRUPTION/COURTS

Chiacgo Tribune: Gov. Rod Blagojevich’s indictment revised
Jeff Coen – 2/4/2010

MARRIAGE EQUALITY/COURTS

Pride Source: Speak Out: Judges matter!
Eric Rader – 2/4/2010

SCOTUS VACANCIES

ABC News: White House Prepares for Possibility of 2 Supreme Court Vacancies
ARIANE de VOGUE – 2/4/2010