Gavel Grab

Archive for January, 2009

links for 2009-01-31

No comments

Putting Judicial Independence to the Test

The Military Commissions Act of 2006 has been widely criticized for, among other reasons, not truly providing a fair and impartial tribunal before which detainees may be tried. Under the Bush Administration, there was widespread agreement that the judges who hear the trials of detainees at Guantanamo Bay should be independent, and not subject to control by the administration.

Ten days into the Obama presidency, some no longer seem so sure.

Yesterday, the chief judge at the detention facility at Guantanamo, Army Col. James Pohl, exerted his judicial independence by denying the administration’s request to delay the proceedings against Abd al-Rahim al-Nashiri. The decision forces the Obama administration’s hand, and will require the tough call on how to proceed in the case against al-Nashiri to be made prior to the currently scheduled arraignment date of February 9, 2009.

The reaction? Here’s a sampling from the comments to the Washington Post’s article on the topic:Read more…

No comments

Judge Denies Obama's Bid to Suspend Detainee's Proceedings

The chief judge at the U.S. detention facility at Guantanamo Bay has denied President Obama’s request for a moratorium in the prosecution of Abd al Rahim al Nashiri. Despite prosecutors’ and defense lawyers’ agreement to the delay, Army Col. James L. Pohl said that the president’s request for a four-month suspension in the proceedings is “not reasonable.”

Abd al Rahim al Nashiri is charged with conspiracy to commit terrorism, murder and attempted murder in violation of the laws of war, and terrorism for his alleged role in the attack on the U.S.S. Cole. He is one of the detainees that the Bush administration admitted to waterboarding in order to obtain information. If convicted, al Nashiri could face the death penalty.

Judicial scholars were consulted regarding Judge Pohl’s refusal to grant the president’s request. “Technically, it’s within the judge’s discretion to treat this as a request or a motion on the part of the prosecutors and the government,” said Carl Tobias, a law professor at the University of Richmond. “We like to think that even military judges are independent, to some extent, of the commander in chief.”

No comments

Respondents’ Brief Filed for Caperton v. Massey

“Because he had no pecuniary interest in the outcome, Justice Benjamin was not constitutionally barred from participating in the [Caperton] decision…” Such was the argument of the respondents in Caperton v. Massey in their brief filed on January 28, 2009.

The respondents’ brief serves as an aggressive response to the claims of the petitioners, who argue that because Massey Energy’s CEO Don Blankenship gave $3 million in independent campaign expenditures, West Virginia Chief Justice Brent Benjamin had a constitutional obligation to recuse himself from hearing an appeal against the coal company.

The petitioners’ and several amici briefs assert that Benjamin’s participation in the appeal created not only the appearance of bias, but his refusal to recuse himself also highlighted the possibility of partiality towards Massey Energy.

The respondents countered that, “There is no basis in history, precedent, or this Court’s practice for the notion that ‘bias’ in general—much less a ‘probability of bias’—mandates disqualification under the Due Process Clause.”

The U.S. Supreme Court will hear oral arguments for Caperton on March 3, 2009.

For more information concerning Caperton v. Massey, you can visit other Gavel Grab postings and the Brennan Center for Justice Caperton resource page. The 72-page respondents’ brief can be found through this link.

No comments

Respondents’ Brief Filed for Caperton v. Massey

“Because he had no pecuniary interest in the outcome, Justice Benjamin was not constitutionally barred from participating in the [Caperton] decision…” Such was the argument of the respondents in Caperton v. Massey in their brief filed on January 28, 2009.

The respondents’ brief serves as an aggressive response to the claims of the petitioners, who argue that because Massey Energy’s CEO Don Blankenship gave $3 million in independent campaign expenditures, West Virginia Chief Justice Brent Benjamin had a constitutional obligation to recuse himself from hearing an appeal against the coal company.

The petitioners’ and several amici briefs assert that Benjamin’s participation in the appeal created not only the appearance of bias, but his refusal to recuse himself also highlighted the possibility of partiality towards Massey Energy.

The respondents countered that, “There is no basis in history, precedent, or this Court’s practice for the notion that ‘bias’ in general—much less a ‘probability of bias’—mandates disqualification under the Due Process Clause.”

The U.S. Supreme Court will hear oral arguments for Caperton on March 3, 2009.

For more information concerning Caperton v. Massey, you can visit other Gavel Grab postings and the Brennan Center for Justice Caperton resource page. The 72-page respondents’ brief can be found through this link.

No comments

Justice O’Connor Supports Merit Selection

“States should do away with judicial elections in order to restore independence to their courts,” urged former Supreme Court Justice Sandra Day O’Connor at a recent luncheon sponsored by her namesake College of Law at Arizona State University.

Justice O’Connor noted that no other country besides the United States elects its judges and called the fact that most states continue to elect their judges “‘shocking.’”

O’Connor warned against the dangers that the recent flow of money into judicial elections pose on the economy, stating, “A fair and impartial judiciary is absolutely fundamental to a properly functioning business and economic climate.”

Read more…

No comments

Justice O’Connor Supports Merit Selection

“States should do away with judicial elections in order to restore independence to their courts,” urged former Supreme Court Justice Sandra Day O’Connor at a recent luncheon sponsored by her namesake College of Law at Arizona State University.

Justice O’Connor noted that no other country besides the United States elects its judges and called the fact that most states continue to elect their judges “‘shocking.’”

O’Connor warned against the dangers that the recent flow of money into judicial elections pose on the economy, stating, “A fair and impartial judiciary is absolutely fundamental to a properly functioning business and economic climate.”

Read more…

No comments

links for 2009-01-30

No comments

links for 2009-01-29

No comments

links for 2009-01-28

No comments

Next Page »