Archive for May, 2010
The Supreme Court’s landmark Caperton v. Massey decision in 2009 already has led to improvements in protecting courts from the influence of campaign cash, according to a legal scholar’s draft law review article.
James Sample of the Hofstra School of Law (photo), and formerly of the Brennan Center for Justice, takes a look at state court reform developments in the year since the high court decision.
Sample’s draft article is entitled, “Court Reform Enters the Post-Caperton Era” (thanks to Rick Hasen’s Election Law blog for the tip.) Sample discusses reform efforts involving judicial recusal and public financing, chiefly in Wisconsin, Michigan and West Virginia (all of which Gavel Grab has tracked closely: click here for Wisconsin, here for Michigan or here for West Virginia). Read more
Retired Supreme Court Justice David Souter stood up in a commencement speech at Harvard for justices whose interpretation of the Constitution leads them to identify rights that it doesn’t mention explicitly.
The Constitution has “a lot of general language in order to be useful over long stretches of time,’’ Justice Souter said, and it “contains values that may well exist in tension with each other, not in harmony.’’
Some people describe deciding a constitutional case as involving a straightforward “fair reading” of the Constitution’s words, but that is not so realistic, he said.
“The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another,’’ he was quoted by the Boston Globe as saying.
A complete text of Justice Souter’s remarks is available from the Harvard Gazette.
The Interbranch Commission on Juvenile Justice put the blame, according to a Scranton Times-Tribune article, on “on criminal judges, passive prosecutors, inattentive pubic defenders and Luzerne County’s history of ‘conflict and corruption.’”
“We were all struck by the collapse of the rule of law, that every check and balance that we fully anticipate would come into play to make sure the system works collapsed,” said commission chairman John Cleland, a Philadelphia Inquirer article reported.
The commission listed 43 reform recommendations. Its report detailed a scandal that involved two judges who later were charged with receiving more than $2.8 million in payoffs; they were accused of taking kickbacks to send juveniles to private detention centers.
“Pennsylvania has been so shaken by this that I think there are enough constituencies who are going to push this forward and not let the report gather dust,” Lynn Marks, executive director of Pennsylvanians for Modern Courts, told the Associated Press. PMC is a partner of Justice at Stake.
Thousands of juvenile convictions were thrown out as a result of the scandal. You can learn more about the scandal from Gavel Grab.
The Arkansas Supreme Court has cleared the way for cameras in the state’s top courtrooms.
Under an opinion by the court, news media will be allowed to photograph and broadcast oral arguments before the state Supreme Court and state Court of Appeals, with a number of limits set, according to a report by KSPR News.
If a lawyer, witness or party to a case asks to bar proceedings in a case, the court will rule on the request, according to an article by Arkansas News.
A lawyer, witness or party in a case can request that proceedings not be recorded or broadcast, the court said. The court will decide whether to grant the request.
The state’s highest court already had allowed cameras in lower courts.
Some defenders of a controversial new Wisconsin law for public financing of state Supreme Court candidates are taking heart from a Ninth U.S. Circuit Court of Appeals decision.
The appeals court upheld the matching funds provision of Arizona’s public financing system for statewide and legislative offices (see Gavel Grab).
In Wisconsin, two lawsuits have been filed challenging the constitutionality of the state’s new law. And the Ninth Circuit ruling has “boosted the hopes” of defenders of that statute, Jay Heck, executive director of Common Cause in Wisconsin, writes in a Madison Capital Times commentary.
Heck calls the Ninth Circuit ruling a “stunning victory for reformers” and a “very big and significant reason for optimism.” He likens the matching funds provision in Arizona’s law to a provision in the Wisconsin law that critics have attacked.
The Arizona provision provides additional taxpayer dollars to publicly-funded candidates if their privately-funded opponent exceeds a spending limit set by the state.
It was another reflection of the controversial nature of the Arizona law, meanwhile, that a Wall Street Journal editorial questioned the Ninth Circuit decision. “In upholding Arizona’s law, the oft-overturned Ninth Circuit has invited another rebuke from the Supreme Court,” the editorial said.
You can read about Wisconsin’s law, and about debates over legality of public financing plans for judicial elections, in Gavel Grab. You also can learn more from Justice at Stake’s issues page on public financing laws.
An article delving into the recusal views of two sitting Michigan Supreme Court justices also relies on Justice at Stake for data on past Michigan election spending.
The article in Michigan Messenger reports that Justices Robert Young Jr. and Maura Corrigan participated in an amicus brief filed in the landmark Caperton v. Massey case. They and some other current and former justices sided with Massey Energy and opposed rules that would disqualify judges from hearing cases involving major campaign donors.
Justice Young, who is up for reelection, likely will gain from business groups pumping millions of dollars into advertising, the article said. When Michigan’s Supreme Court toughened disqualification standards last year, Justices Young and Corrigan voted in opposition.
Examining the growth of independent political spending, the article used data from Justice at Stake to report that five candidates for the high court raised more than $1.6 million in 2004, compared to independent groups spending $1.8 million on TV ads. Justice Corrigan got more TV ad support from third party groups in 2006 than she raised for her campaign, the article added. Read more
An Alabama Supreme Court justice has accused his rival in a Republican primary contest of hypocrisy for deploring the cost of judicial elections, then pumping massive sums into last-minute TV advertising.
The target of the attack, trial lawyer Tracy Cary (right-hand photo), states on his campaign Web site, “I will not participate in the outlandish fund-raising of past judicial campaigns. This is only a start but I want to do my part to help restore public confidence in our courts.”
The campaign manager for incumbent Justice Mike Bolin (left-hand photo) said Cary bought $650,000 in ads, according to a Tuscaloosa News article, shortly after filing a public report listing no campaign contributions. Justice Bolin and Cary are competing in a GOP primary.
The campaign manager, Scott Stone, accused Cary of hypocrisy. Stone also contended Cary put off taking campaign donations, until after the passage of a reporting deadline, to avoid disclosing his donors’ identities.
Cary refused to confirm for the newspaper the cost of his campaign’s advertising purchases, and he declined to disclose the money sources.
He said in a statement that his initial approach, rejecting political action committee money, was naive and he was engaged in a contest with a contest with a well-funded, incumbent foe.
“I needed TV ads and discovered that funding them would not be possible if I continued to accept donations only from friends and family,” Cary said. “Judicial campaigns in Alabama are outrageously expensive.” Read more
Supreme Court nominee Elena Kagan has won supportive remarks from Justice Antonin Scalia and retired Justice Sandra Day O’Connor.
Justice Scalia remarked in an appearance at Catholic University’s Columbus School of Law in Washington, D.C. that each current justice has experience as a former federal judge, according to a Washington Post article.
He said he was “happy to see that this latest nominee is not a federal judge — and not a judge at all.” Kagan, the first female U.S. solicitor general, has served as Harvard Law School dean and in each branch of the federal government. She has gotten criticism from some GOP senators for her lack of judicial experience.
Justice O’Connor told George Stephanopoulos of ABC’s Good Morning America that Kagan “seems to be very well qualified academically.” She thinks Kagan will be confirmed, Justice O’Connor said, and she warned of the “dreadful, unpleasant” confirmation hearings.
Justice O’Connor also said a third of Supreme Court justices never had judicial experience, and “I think it’s fine,” Huffington Post reported. A transcript of the ABC interview is available here. Read more
Could foes of Missouri’s merit system for selecting judges have failed to clear a crucial hurdle in order to put the issue before voters?
A group defending the nationally recognized merit system asserted that is the case, according to a St. Louis Post-Dispatch blog post. Not so, replied a leader pressing for a constitutional amendment, who assailed “self-interested ambulance chasers.”
Missouri’s secretary of state has not issued any ruling yet.
ShowMe Better Courts wants to scrap the state’s judicial appointment system and replace it with competitive partisan elections. It recently said it had submitted 250,000 petition signatures to put the issue on the ballot in November.
Missourians for Fair and Impartial Courts, which defends the merit system for appointing many of Missouri’s top judges, did an analysis of the signatures and said in a statement Wednesday that they fell short of the minimums required by law. Read more
The growing backlog of cases awaiting resolution in our immigration courts keeps shattering old records.
The backlog reached the highest level in history in March, at 242,776 cases, according to new information from a Syracuse University-based data research institute and a New York Times blog post relying on that data.
On average, the cases have been awaiting resolution for 443 days. The states with the longest average waits were California, Massachusetts and Nebraska.
A lot of the explanation for the growing backlog lies in a combination of more new cases combined with judicial hiring that hasn’t kept pace with judicial turnover. In 2009, the Department of Homeland Security stepped up enforcement.
You can read a broader discussion of the backlog trend, and proposals to address it, in this earlier Gavel Grab post. To learn more about issues facing the immigration courts, turn to Justice at Stake’s issues page on the topic.