Archive for August, 2008
Merit selection will be on the November ballot in Greene County, Missouri, according to an article in the Springfield News-Leader.
If Question 1 is approved, Greene County would adopt the Missouri Plan, which is already in place for trial judges in St. Louis and some other parts of Missouri. Missouri’s secretary of state certified the initiative after a grass-roots organization, Greene Countians for Fair and Impartial Judges, obtained well over the required 12,000 signatures.
Under the plan, a committee of lawyers and non-lawyers would identify panels of qualified candidates, from which the governor would select a judge. Judges then face the voters through periodic retention elections, in which the community decides whether they should remain on the bench.
Such elections historically have attracted far less special interest money than partisan elections, reducing pressure on judges to raise money for campaigns.
“The system is designed to take politics out of being a judge and to let merit and nonpartisanship be the driving factor,” said retired Judge John Holstein, former chief justice of the Missouri Supreme Court.
To learn more about the Greene County effort, see the Greene Countians for Fair and Impartial Judges web site. The Missouri Bar Association also has a page on the ballot measure.
Note: Justice at Stake supports reforms that reduce the role of special interests in the selection of judges. It does not favor any one form of judicial selection over another.
On August 26, as part of its stepped-up immigration enforcement efforts, the federal government captured 600 plant workers in Laurel, Mississippi . When detainees like these are sent to detention centers, their fate often rests with immigration judges who are hired by the Department of Justice. Earlier this week, a New York Times article suggested that politics in the hiring of these judges is dramatically affecting the chance that immigrants have at gaining asylum. Referring to former Justice Department aide Monical Goodling, the Times writes:
When vetting applicants, for example, Ms. Goodling asked them questions about their political beliefs and researched their campaign contributions. She also conducted Internet searches of their names and words like “asylum,” “immigrant” and “border,” as well as partisan terms, like abortion, Iraq, gay and the names of political figures, to determine their views, the report said. But it presented no evidence that her efforts were connected to any official policy goal of restricting asylum.
The report studied 16 of the 31 judges that were hired politically, and of those 16:
And when asylum denial rates of all judges across the nation were ranked in comparison to their local peers, 8 of the 16 scored above the 70th percentile — meaning they have been among the judges least likely to grant asylum.Together, these 16 judges handled 5,031 cases and had a combined denial rate of 66.3 percent — 6.6 percentage points greater than their collective peers. This translates into an extra 157 asylum cases that resulted in denial.
The report also notes that nine judges rejected cases at an average that was six times higher than other judges in their locale.
A judge presiding over several detainees at Guantanamo has expressed a concern regarding access to the evidence presented in detainee trials, according to an Associated Press report. Judge Richard J. Leon has said that he fears the evidence used in these trials will be unavailable both to the public and to the detainees, themselves.
“If it can’t be done,” Judge Leon said, “I have great concern that these hearings will be virtually or exclusively classified, closed to the public and, I might add, to the detainees.”
The executive branch has repeatedly classified evidence in these trials, effectively cutting off any ability for the detainees and their attorneys to refute it. Despite the likelihood of a similar situation occurring in his cases, Judge Leon has said he will try to set up a secured phone line so that detainees may listen to the cases being presented against them.
And, considering that there are no set procedural guidelines for trials of this nature, it is unclear exactly what form these hearings will take or even if the judges’ rulings will be binding.
We’re not without a sense of humor here at Gavel Grab, so we’d like to point your attention to a Law Blog post by the Wall Street Journal‘s Dan Slater. In it he points out a rulingby the Maryland Court of Appeals that uses the sitcom “Seinfeld” to illustrate the concept of “good faith” in a contract. Here’s the excerpt from the opinion and the episode:
Jerry Seinfeld, perhaps an unlikely legal illustrator, once epitomized the duty of good faith in contract. In an episode of his television show, Jerry’s character purchased a jacket at a men’s clothing shop. The terms of the contract permitted Jerry to return the item for refund at his discretion. When Jerry attempted to return the jacket after an unrelated personal quarrel with the salesman, the following discussion took place.
Jerry:Excuse me, I’d like to return this jacket.
Clerk: Certainly. May I ask why?
Jerry: For spite.
Jerry: That’s right. I don’t care for the salesman that sold it to me.
Clerk: I don’t think you can return an item for spite.
Jerry: What do you mean?
Clerk: Well, if there was some problem with the garment. If it were unsatisfactory in some way, then we could do it for you, but I’m afraid spite doesn’t fit into any of our conditions for a refund.
Jerry: That’s ridiculous, I want to return it. What’s the difference what the reason is? . . . In attempting to exercise his contractual discretion out of “spite,” Jerry breached his duty to act in good faith towards the other party to the contract. . . .You can check out the full Law Blog post here
Two interesting articles have been published regarding detainees at Guantanamo.
The first, a Jurist article, discusses the transfer of two detainees to their home country of Algeria. The Department of Defense declined to name the detainees, but stated that the transfer shows the effectiveness of the review process currently in place at Guantanamo. The detainees were determined to be eligible for a transfer last month.
About 260 detainees remain at Guantanamo, the vast majority of whom have not stood trial. According to the Pentagon, 65 of those detainees are also awaiting repatriation.
The second article by civil liberties columnist Nat Hentoff, published in the Canton Repository, argues that terrorist trials should be held in federal courts. The article points to the Human Rights First publication, “In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts,” as proof that the civilian judicial system can and should be responsible for these trials. “If the new administration follows the Human Rights First recommendations and tries all terrorism cases in our federal courts,” the article says, “what has become known throughout the world as ‘the torture presidency’ will finally end.”
The idea of trying terrorists in federal courts is not a new concept, but the desire to close Guantanamo and provide for a more open and fair process is undeniably growing.
A Roanoke Times article has come out strongly in favor of merit selection.
The article, published on Sunday, outlined the current process, which relies heavily on partisan politics within the Virginia state legislature. Depending on the makeup of the legislature at the time, it is sometimes very difficult or even impossible for both parties to agree on nominations.
The article calls for Virginia to look to other states that have successfully implemented merit selection.
“To be effective, the judicial branch must be independent and as insulated as possible from partisan political concerns,” the article states. “In Virginia, neither is the case.”