Gavel Grab

Archive for July, 2009

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Increasing Signs of Partisanship in Sotomayor Vote

The Senate Judiciary Committee approved Sonia Sotomayor’s nomination to the Supreme Court today in a near party-line vote of 13-6. Every Democrat sided with her while Senator Lindsey Graham of South Carolina provided the lone Republican tally in her favor.

Graham said that although he would not have picked her,  the President’s electoral victory earned deference from the Senate, and he reasoned that Sotomayor’s  exemplory qualitfications and mainstream legal record made her “no worse” the David Souter – the Justice she would replace. Graham finished by lamenting the partisanship that has infused the judicial selection process to the detriment of the Court’s image in the eyes of the public.

Despite his statements, he failed to persuade any fellow Republican committee members. Senators Charles Grassley and Orrin Hatch both voted against a Presidential nominee for the first time in their careers.  Hatch announced that he would do so “reluctantly”, noting only that he found her testimony at the initials hearings inconsistent with her prior statements. Senator Grassley hammered this point home  by contrasting  quotes from her speeches with her testimony before the Committee. He also admitted eleswhere that his “no” vote drew in part from the increasing partisanship in the nominated process.

The vote totals for sitting Supreme Court Justices confirm this striking trend. Unanimity used to be the norm: not one Senator opposed Justices Scalia, Kennedy or Stevens. Even after the controversial failure of Robert Bork’s nomination and near defeat of Justice Thomas’s selection,  President Clinton’s picks faced relatively little trouble.

Those days appear to be gone.  President George W.  Bush’s nominations spurred partisans and interest groups into a pitched battle over the membership of the nation’s highest court. Chief Justice Roberts received a solid 78 votes, but far from the unanimity of days past. Justice Alito managed only a 58-42 tally with only Democrats in favor.

Interest groups have stepped up the pressure. After the initial hearings the NRA announced it would oppose her nomination – the first time it has done so for any nominee.  The partisanship seems destined to be reflected in the final vote, though the sheer number of Democrats means Sotomayor almost certainly will reach the Supreme Court.

The Senate is likely to begin debate on the nomination next week. Check Gavel Grab for updates.

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Nevada Jurist Defends Appointment Panels

Bob Rose, retired Chief Justice of the Nevada Supreme Court, defends the Nevada Judicial Selection Commission against editorial criticism that it is “elitist.”Rose’s commentary,  published in the Reno Gazette-Journal’s web site, responded to a negative editorial by the newspaper.

Nevada citizens will vote in 2010 to decide whether to fill all state judgeships through a merit selection appointment process. Rose noted that Nevada already has used nonpartisan commissions to fill mid-term vacancies for two decades, and  also emphasized his concern about money’s role in electing judges.

“Using the merit selection process to fill all judicial vacancies (in-term and full-term openings) would give us a system that has been proven in Nevada over the past two decades,”  he wrote.

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Jailed Juveniles Press for Right to Sue in Pa.

Thousands of juveniles whose cases were heard by a corrupt Pennsylvania judge could lose out on a chance to sue for damages and court fees, according to a New York Times article.

A plan by the Pennsylvania Supreme Court  to get rid of more than 6,000 records for the juveniles would effectively keep the youths from suing the judge, Mark A. Ciavarella Jr., and keep the public in the dark about the extent of his corruption, lawyers for some of the juveniles argued in federal court, according to an Associated Press article.

Although the Supreme Court has agreed to preserve records of about 400 youths who are suing Ciavarella and a second former judge, its plan does not extend to the thousands of others who may have a right to claim damages if the case is certified as a class action, the AP reported.

Ciavarella and Michael T. Conahan were accused of taking more than $2.6 million in kickbacks to send juveniles to private detention centers. They have pleaded guilty to tax evasion and wire fraud, according to the Times.

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Editorial: No Gitmo on Mainland U.S.

In the Boston Globe, an editorial inveighs against “indefinite detention without a trial” and cautions against President Obama  creating “his own mainland Guantanamo with a reputation as bad as the one in Cuba.” The federal court system has shown it can carry out its work in the post-Sept. 11 world, according to the editorial, which you can read here.

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Massey in New Recusal Dispute

Massey Energy Co., on the losing end of the U.S. Supreme Court�s recent Caperton v. Massey decision, is at the heart of a new bid for a West Virginia judge to step down from hearing a case on grounds of an appearance of impropriety.

Circuit Judge Michael Thornsbury of Mingo County, overseeing a major pollution lawsuit against Massey, is accused of failing to disclose a friendship with the company’s chief executive and of appointing a personal business partner as administrator of a medical monitoring fund, according to reports in the Charleston Gazette and the Associated Press

Kevin Thompson, a lawyer for hundreds of area residents, contended in court papers the situation amounted to “cronyism at its worst.”

Judge Thornsbury told the Charleston Gazette the allegations were unfounded and that he was not friends with Massey CEO Don Blankenship.

West Virginia judicial ethics has been getting attention around the nation. The high court was asked in Caperton whether a judge could be forced to step aside from cases involving major financial backers. In its landmark decision last month, the high court said that West Virginia Chief Justice Brent Benjamin was�constitutionally obligated�to recuse, because� Blankenship had spent $3 million to help elect him while appealing a case to overturn a $50 million jury award.

The latest recusal request reflects how ties between Blankenship and jurists continue to spark controversy. State Supreme Court Justice Elliott Maynard lost a primary in May after he was photographed on the French Riviera with� Blankenship.

In a related development, Massey has agreed to drop a lawsuit challenging West Virginia�s recusal law as unconstitutional, according to a Charleston Gazette news story.

The close relationships between Don Blankenship and West Virginia Supreme Court justices has been well-chronicled on Gavel Grab.

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Missouri's Court Plan Faces Ballot Challenge

Critics of Missouri’s merit selection system are pursuing a new political strategy to change it, saying they plan a statewide petition drive to send a ballot measure directly to voters.

Better Courts for Missouri, a group that has sought to revise Missouri’s Nonpartisan Court Plan,  is proposing a system that would mirror the federal government, in which governors would nominate judges, subject t0 confirmation by the state Senate. Judges still would continue to face periodic one-candidate retention elections.

Under the state’s current system, which has been in place since 1940, a  nominating commission submits a slate of three candidates to the governor, who chooses from that list. BCM  filed a petition earlier this month with the secretary of state’s office for a  proposed state constitutional amendment.

The Missouri Plan is well respected and other states have used it as a model, according to the the Kansas City Star. Critics, including Republicans,  have criticized it as overly secretive and dominated by trial attorneys, the Star reported.

“While opponents of the federal model may claim [it] is too political, the problem with Missouri’s selection scheme is that the politics are hidden behind closed doors in smoke-filled rooms, and Missourians have no idea their courts have been taken over by political special interests,” James Harris, who represents Better Courts for Missouri, said in a statement.

Meanwhile, a senator who unsuccessfully tried to push a different amendment through the legislature last year, said he would continue to ask fellow lawmakers to put his proposed amendment on the state ballot. “The chances are 100 percent that a bill will be re-introduced,” said Republican state Sen. Jim Lembke, according to an article in the St. Louis Beacon.

The Missouri Bar Association has stoutly opposed Lembke’s proposed amendment, saying it would inject politics into the state courts. To learn more about Missouri’s merit battles, see Gavel Grab.

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