Gavel Grab

Archive for November, 2009

Campaign Finance Decision is Awaited

The U.S. Supreme Court’s deliberative pace in handing down an opinion on an important campaign finance case, Citizens United v. Federal Election Commission, is getting attention.

Scholar Rick Hasen acknowledges in his Election Law Blog that he predicted an opinion would be issued by mid-November, and it hasn’t happened yet. “I don’t think that the fact that it is taking so long necessarily indicates that the case will be a blockbuster,” he writes.

An article by the Associated Press is headlined, “No decisions in high court’s horn of plenty.” It suggests that perhaps the justices “are moving a bit more slowly while they allow their new colleague [Justice Sonia Sotomayor] to get her bearings.”  The court could issue opinions this week.

You may check out Justice at Stake’s amicus brief in the Citizens United case by clicking here. The court is deciding whether the government can bar corporations and labor unions spending directly from their treasuries on federal elections. The ruling could affect how corporations spend  political money in  the 2010 elections, and it ultimately  could affect spending on judicial elections in states.

To read more about Citizens United, click here for other Gavel Grab articles.

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Terror Trial Debate Storms On

The debate over the 9/11 terror trials isn’t letting up.

Andrew P. Napolitano, a former judge on the Superior Court of New Jersey, wrote a commentary in the Los Angeles Times drawing this clear line: “All those detained since 9/11 should be tried in federal courts because without a declaration of war, the Constitution demands no less.”

In the New York Daily News, Debra Burlingame took an opposite stance. Her brother was captain of the American Airlines flight that was hijacked and slammed into the Pentagon. She wrote that she is an organizer of an upcoming rally to stop U.S. leaders from “bringing sworn enemies of the United States into this country – from bringing war criminals captured on the battlefield, lawfully held as war detainees, into civilian court.”

The controversy centers on Attorney General Eric Holder Jr.’s decision to try Khalid Shaikh Mohammed and four co-defendants in federal court in New York. To learn more about this heated debate, check out earlier articles in Gavel Grab; for the latest installments, look at today’s media report in Gavel Grab.

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W. Va. Legislators Eye Judicial Reform Study

Some of West Virginia’s leading lawmakers see the importance of court system changes recommended in a recent study, but it is unclear whether any of the  reforms will be passed into law next year.

The Independent Commission on Judicial Reform recommended public financing of a state Supreme Court election in 2012, an intermediate appeals court and special panels to give advice on filling judicial vacancies.

“They didn’t try to bite off too much, and make sweeping recommendations that weren’t going to go anywhere,” Senate Judiciary Committee Chairman Jeff Kessler told the Associated Press.

The commission report said, “As campaign expenditures rise, so too does the threat of bias, and certainly the public perception of bias, as candidates face mounting pressure to accept donations from lawyers and parties that may appear before them once they take a seat on the bench.” You can learn more about public financing of judicial elections from Justice at Stake’s Web site by clicking here.

West Virginia drew national attention for its role in Caperton v. Massey, a  U.S. Supreme Court case decided in June. It spotlighted the risk to a litigant’s due process rights when an opposing litigant spends heavily to elect a judge in the case. You may read about Caperton at Justice at Stake’s resource page, and you can click here for earlier Gavel Grab posts about the reform study.

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Challenge Clear for Ohio Election Reformers

Chief Justice Thomas J. Moyer, who favors a shift in how Ohio voters elect their state Supreme Court justices, often is reminded of the challenge he’s facing.

Commentator Thomas Suddes acknowledged in the Columbus Dispatch his own skepticism for the kind of appointive-elective approach that Justice Moyer would like to see take the place of partisan  judicial elections. Suddes added, “But it’s a good-faith plan, and it deserves fair consideration.”

Suddes noted in his essay that Ohio voters “trounced” similar plans in 1938 and in 1987. If critics of such a plan argue in 2010 that it would “take away your right to vote,” Suddes wrote, “that could be a killer argument.” But he nonetheless gave Justice Moyer his due, saying the jurist, who is not far from mandatory retirement, “doesn’t aim to spend his final year as chief in a La-Z-Boy.”

A recent conference on judicial selection got a lot of people thinking, and talking, about how Ohio picks it Supreme Court justices. In a commentary in the Newark Advocate, Matthew George recapped some of that debate and concluded:

“What is important to remember is why we are having the debate about the method of selecting judges — it is to ensure that we select men and women who will fairly apply and uphold the law in the disputes that come before them and not seek to make law from the bench.”

George is a magistrate and staff attorney with the Licking County  Court of Common Pleas. For information about the pros and cons of judicial elections versus appointive systems, check out the Justice at Stake resource page on the topic. Justice Moyer is a board member for Justice at Stake, and you can learn more about his efforts from these Gavel Grab posts.


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Mich. High Court Sharply Split on Recusal

Weeks after Michigan’s Supreme Court  adopted a new disqualification rule for judges by a 4-3 vote,  the justices’ personal, and in some instances barbed, disagreement has erupted in public.

The rules adopted late Thanksgiving eve would let other Supreme Court justices disqualify a fellow justice from hearing a case, in the event of an apparent bias or conflict of interest, according to an article in the Detroit News, supplanting a practice whereby only the justice in question decides whether to step aside.

Michigan’s court adopted new rules after the U.S. Supreme Court issued a landmark decision in Caperton v. Massey. In June, the  high court required a West Virginia Supreme Court justice to recuse himself from a case involving a coal company executive who had spent $3 million to help the justice win election.

On a Detroit talk radio program Monday, Michigan Chief Justice Marilyn Jean Kelly said, “We don’t want a situation like that in Michigan,” according to the Detroit News. “The constitutional rights of judges don’t overbalance the right of the people to get a fair trial.”

But Justice Maura Corrigan has predicted a “constitutional crisis” and “permanent siege” on the state Supreme Court after opposing the rule, the Associated Press reported, and Justice Robert Young Jr. has contended the rule would repress free speech. “The majority has created a 21st Century Star Chamber,” wrote Justice Young, who voted in the minority. Read more

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Monday Media Summary

MICHIGAN SUPREME COURT RECUSAL

Chicago Tribune/AP: Divisions easy to read in new Mich. court rule
Ed White – November 27, 2009

Detroit News: Disqualification plan upholds justice
U.S  District Judge Avern Cohn – November 30, 2009

CITIZENS UNITED

Firedoglake: Living Up to Our Constitution  Part II
Cynthia Kouril – November 27, 2009

Election Law Blog: When Will We See an Opinion in Citizens United?
Rick Hasen – November 29, 2009

WEST VIRGINIA JUDICIAL REFORM

Charleston Daily Mail/AP: W.Va. lawmakers interested in court study
report
Lawrence Messina – November 29, 2009

MILITARY DETENTIONS

NY Times: Afghans Detail Detention in ‘Black Jail’ at U.S. Base
ALISSA J. RUBIN – November 28, 2009

JUDICIAL SELECTION REFORM (OHIO)

Newark Advocate: It is important to remember proper role of the
judiciary
Matthew George – November 27, 2009

Columbus Dispatch: Chief justice won’t retire quietly
Thomas Suddes – November 29, 2009

GUANTANAMO BAY DETAINEES/COURTS

LA Times: Death penalty in 9/11 trials may be difficult
David G. Savage – November 30, 2009

NY Times: Spin of Wheel May Determine Judge in 9/11 Case
Benjamin Weiser – November 27, 2009

Read more

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ABA Supports Decision on Terror Trials

American Bar Association president Carolyn B. Lamm, in a letter to Attorney General Eric Holder Jr., has voiced support for a decision to try Khalid Shaikh Mohammed and four 9/11 co-defendants in federal court in New York.

The Nov. 25 letter, according to an article in The Blog of Legal Times, labels the military commissions where the five first were charged as “constitutionally flawed,” and describes the federal courts as “well-equipped to handle trials of this magnitude.”

The letter is available from the Web site of the ABA, a partner of Justice at Stake. The letter states:

“Those who plotted the terrorist attacks against the United States must be brought to justice and held fully accountable for their horrific crimes. However, no matter how heinous the charges, the long awaited trials of these alleged terrorists must be both fair and perceived as fair, or the resulting verdicts will not be recognized as legitimate.

“The accused must receive the competent assistance of counsel, be afforded due process, and treated as innocent until proven guilty. Americans would not want our citizens who might be arrested and charged in a foreign state to receive anything less.”

Some of the latest commentary and reports on  the trial venue decision include an essay by lawyer Thomas Wilner from the Wall Street Journal, entitled, “Obama Made the Right Call on KSM;” and a report by NPR, entitled, “Terrorism Justice: Courts vs. Commissions.” You can read more about the issue from earlier Gavel Grab posts, and you can learn more about  the role of courts protecting civil liberties in troubled times  from Justice at Stake’s civil liberties resource page here.

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Experts Take Stab at 'Rethinking' Supreme Court

If you think of the U.S. Supreme Court as a pillar of stability, you may be surprised by some of the ideas tossed about at a recent conference convened by George Washington University Law School. The program was called “Rethinking the Law Governing the Structure and Operation of the Supreme Court.”

Not that the experts all subscribed to the ideas, or even the severity of the problems they were aimed to fix, according to an article in SCOTUSBlog. The proposals nonetheless make intriguing reading: for regular appointments of justices; for seven-year term limits for chief justice; for creation of a certiorari division of appellate judges that could require  the high court to hear specified; and mandatory retirement for disabled justices.

Among those engaged in the GWU discussion: Cynthia Hogan, counsel to Vice President Biden; William Marshall, a visiting professor at George Washington; Yale Law School professor Judith Resnik; Dean David Levi of Duke Law school; former New York Times journalist Linda Greenhouse; Professor Lee Epstein of Northwestern University; Judge Gerald Tjoflat of the Eleventh Circuit; former Solicitor General Kenneth Starr; GW Law professor Amanda Tyler; Brookings Institution scholar Russell Wheeler; and Indiana University professor Charles Gardner Geyh.

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NY Times: State Courts at 'Tipping Point'

The New York Times has sounded an urgent editorial alarm over the frail fiscal health of state courts around the country. At Justice at Stake, we hope the raising of these concerns by such a well-respected messenger prods policy-makers to action.

In “State Courts at the Tipping Point,” the Times reports that courts are “spiraling into crisis as cash-starved states struggle with huge deficits.” The examples are many, and disturbing: court hiring freezes in more than two dozen states, unpaid staff furloughs in 11 states,   closure of state courthouses in California for one day each month and a planned closure of all state courts in Iowa for several days before June 30.

How serious is the danger? Margaret Marshall, chief justice of the Massachusetts Supreme Judicial Court, is quoted as warning that because of budget cuts in a difficult economy, state courts stand at “the tipping point of dysfunction.”

The editorial documents justice delayed: up to 60 days to get a hearing in a temporary custody case in Georgia and growing backlogs of cases in other states. It also spotlights a “looming threat to the civil justice system” when serious criminal cases get first priority, and a great impact on heavy-volume courts that offer protection and justice for many of the most vulnerable in society.

The Times editorial also deserves praise for noting that factors other than budget problems undermine state courts, “not least the advent of expensive judicial election and retention campaigns fueled by special interest money.” After that footnote,  the editorial returns to its central theme and ends with a bang:

“No one, including Chief Justice Marshall, suggests that state courts should be spared from having to share the burden at a time when cuts to health care and public education are under consideration in nearly every jurisdiction.

“But, at some point, slashing state court financing jeopardizes something beyond basic fairness, public safety and even the rule of law. It weakens democracy itself.”

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Editorial Preview Favors Public Financing in Md.

The Baltimore Sun newspaper is giving online readers a preview of an upcoming editorial on public financing for judicial elections. The commentary supports a step in the right direction toward fair and impartial courts, so if you have a moment over the holiday, why not send the editors a favorable note?

In the soon-to-be editorial, the editors point to “the peril of judicial elections” as highlighted by the U.S. Supreme Court in its Caperton v. Massey decision, where a West Virginia Supreme Court justice was told to step aside from a case involving a coal company executive who spent $3 million to help elect him. The editorial also discusses Wisconsin’s legislature recently approving public financing for state Supreme Court elections.

Although the law is imperfect, “at least its supporters recognize, and have attempted to counter, a serious problem with judicial elections,” the editors state, “the opportunity to purchase a favorable ruling.” In Maryland, where circuit court judges typically are appointed by the governor, but later face an election for a 15-year term, “public financing would no doubt prove helpful to maintaining the circuit court’s integrity,” the editors suggest.

It may be a preview, but this would-be editorial is identifying the right issues. It concludes:

“Marylanders deserve a judiciary that is as fair and impartial as humanly possible. Having candidates for the bench show up at law offices with hat in hand asking for money would seem to be wholly counter-productive toward that cause.”

 

You can find out more about how public financing works by checking out the Justice at Stake Web site page on the topic here.

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