Archive for September, 2010
In other dispatches about fair and impartial courts:
- Sen. Patrick Leahy, D-Vt. and Senate Judiciary Committee chairman, introduced a bill to let retired Supreme Court justices return to the high court to hear cases when sitting justices have recused themselves, according to a Wall Street Journal article and a NPR report.
- Federal District Judge Vaughn R. Walker, whose profile was elevated when he declared California’s ban on same-sex marriage unconstitutional, announced he will retire in February, the San Jose Mercury News reported.
- “There is much work to be done to fight extremists who want to insert their narrow, special interest into the one branch of government that should be free from politics,” former Republican Lt. Gov. Joy Corning of Iowa said in announcing a group, Justice Not Politics, to defend merit selection in the state. Former Democratic Lt. Gov. Sally Pederson also is helping lead the effort, according to an Iowa Independent article.
Retired Supreme Court Justice Sandra Day O’Connor warned Thursday that the greatest threat to judicial independence in the nation is the “flood” of campaign cash flowing into courtrooms, and she also said that eroding faith in the judiciary is far-reaching.
Justice O’Connor gave keynote remarks at a Washington, D.C. event sponsored by the Justice at Stake Campaign and the Committee for Economic Development to discuss a newly released report, “The New Politics of Judicial Elections 2000-2009: Decade of Change.”
The report, co-authored by Justice at Stake and two partner groups, shows how special-interest money has exploded in state court races in the past decade, posing an unprecedented threat to the fairness, impartiality and independence of America’s courts.
Another speaker at the event, Hugh Caperton, brought a compelling personal story to the discussion of judicial reform.
“It appears that justice indeed is for sale,” Caperton said. He came into national prominence in 2009, when his Supreme Court case, Caperton v. Massey, became a landmark decision on when judges must recuse themselves from cases involving major campaign supporters. Despite that victory, however, his company lost its long court battle in West Virginia against a rival firm.
“I’m here because I’m a citizen that has experienced first-hand the devastation and destruction that big money is causing in our judicial elections, and ultimately in our courts,” Caperton said. Read more
In other dispatches about fair and impartial courts:
- Supreme Court Chief Justice John Roberts Jr. has sold stock he held in Pfizer Inc., which will allow him to participate in two upcoming cases that involve the drug maker, according to a Wall Street Journal article. Justice Elena Kagan will be sitting out those cases due to her involvement with them when she was solicitor general.
- In an election season debate, Washington Supreme Court candidate Charlie Wiggins said judicial campaign contributions should be limited because of perceptions that cash has clout in the courtroom. His opponent, Justice Richard Sanders, said he had not seen evidence of such donations affecting court decisions, the Seattle Times reported.
- Although a pending lawsuit challenges the way state Supreme Court justices are selected in Kansas, a nominating commission has recommended three finalists for a vacancy on the high court, according to an Associated Press article.
A conservative group, the National Organization for Marriage, is on the march with new lawsuits challenging campaign finance disclosure requirements and restrictions on political advertising.
As part of its effort to prevent legalization of same-sex marriage in Rhode Island, the group, represented by Indiana-based lawyer James Bopp, has filed a lawsuit there, according to a Providence Journal article.
The Rhode Island lawsuit seeks a right for the group to “spend thousands of dollars on TV and radio ads for and against candidates for governor and the General Assembly, free from the state’s contribution limits and ‘extensive reporting requirements,’” the newspaper reported.
Bopp is general counsel for the James Madison Center for Free Speech. On its website, that center displayed press releases about the Rhode Island lawsuit as well as litigation brought by the National Organization for Marriage challenging laws in New York and Florida.
Michael J. Healey, a spokesman for the Rhode Island attorney general, said about the litigation there, “Mr. Bopp has been called a ‘litigation machine’ and, now, we can certainly see why, but we’re not as certain as he apparently is about how Rhode Island law is harming his organization. We’ll go to court, defend the Board of Elections and the taxpayers, and let the chips fall where they may.”
It’s tough to get Americans focused on the nation’s judicial vacancy rate of almost one out of eight judgeships when people have to worry about the economy and global terrorism.
But the vacant judgeships remain an important issue nonetheless, say Dahlia Lithwick and Carl Tobias in a Slate commentary. The authors set about enumerating these reasons why Americans should worry that an understaffed judiciary is “hazardous to their health:”
- “Justice delayed truly is justice denied.”
- “Overtaxed federal judges can’t do justice at some point.”
- “Potential judges won’t agree to be nominated.”
- “The more seats remain vacant, the greater the incentive to politicize the process.”
- “The rampant politicization of the selection process is undermining public respect for the co-equal branches of government.”
There is a risk, the authors conclude, that citizens observing the current nominations wars will accept a politicized view of judges “as a bunch of alternating partisan hacks and a federal bench that is limping, rather than racing, to do justice.”
Meanwhile a Los Angeles Times editorial urged, “Quit stalling on these judges.” It alluded to the nominations of Edward Chen and Kimberly Mueller for federal district judgeships in California and of Goodwin Liu for an appeals court seat. To learn more about President Obama’s judicial nominations record and polarized politics in the Senate, click here for Gavel Grab.
Seeking to restore to New Hampshire’s courts $4 million that was cut in a biennial budget, a group of lawyers has filed suit against the state.
Former state Supreme Court Justice Chuck Douglas leads the attorney group. It contends that the funds, once restored, would do away with cutbacks to civil jury trials, court clerk hours and staff, according to a National Law Journal article.
Not since 1984 has a case “squarely attacked the public access aspect of declining court budgets,” according to Greg Hurley of the National Center for State Courts, a partner of Justice at Stake.
The petitioners say New Hampshire cut budget cuts do not comply with the state Constitution, which states that citizens are promised prompt civil jury trials.
Voters never have bounced an incumbent Illinois Supreme Court justice in a retention (up-or-down) election. Could Election 2010 change that?
An Associated Press article raises that possibility. It reports that “politics is beginning to spill into simple judicial races that never used to be contested,” and the retention election facing Justice Thomas Kilbride is an example. The article cites the Justice at Stake Campaign to back up its conclusion.
Poised to take over soon as chief justice, the 57-year-old jurist is encountering opposition from business interests who want to deny him re-election. The Illinois Civil Justice League, leading the ouster drive, is critical of his record. A major sore point for ICJL is a high court decision he supported; it declared unconstitutional a law limiting the sums that doctors and hospitals could be sued for (see Gavel Grab).
“We’re going to raise as much as we can to help remove Judge Kilbride,” pledged Ed Murnane, an ICJL leader. He also is treasurer for JUSTPAC, a group taking aim at judges who it finds unfriendly to business. Murnane said a media blitz will be launched against Justice Kilbride in October.
Justice Kilbride said, “It’s a very awkward situation.” He added, “I can’t match any amount of money they’re talking about spending, and we’re going to have to work extra hard to make sure we get the facts out.” Read more
Not only has soaring special interest spending on judicial elections threatened public confidence in fair and impartial courts, but a worrisome new trend looms on the horizon.
A New York Times editorial sounds an urgent alarm over “perhaps the most troubling new development” in state judicial elections. It identifies this threat as the changing face of retention (up-or-down) elections, which were designed to be as apolitical as possible and to protect judges from the “rough-and-tumble” of the competitive election cycle.
The editorial is entitled “Fair Courts in the Cross-Fire.” It begins by declaring concern over rising special interest spending on state elections. “The New Politics of Judicial Elections, 2000-2009: Decade of Change,” co-authored by the Justice at Stake Campaign, showed that in the past decade, fundraising by state Supreme Court candidates rocketed to $206.9 million, more than doubling the $83.3 million raised in the 1990s (see Gavel Grab). Here is the editorial’s lament about the current election season:
“The stage seems set for record-shattering spending wars, dominated by interest groups bent on influencing judicial decisions and by mud-slinging attack ads that were once limited to contested campaigns for executive or legislative offices.” Read more
A campaign linked to the tea party has announced a drive in Florida to deny re-election to two state Supreme Court justices in retention elections this year, in response to a controversial court ruling.
It appeared to be the latest in a series of higher-profile retention (up-or-down) retention elections that have emerged across the country, a trend spotlighted by a recent Justice at Stake and Brennan Center for Justice report.
Florida Justices Jorge Labarga and James Perry cast votes with the majority in a 5-2 decision that removed Amendment 9 from the ballot, because the ballot summary was inaccurate, according to an Associated Press article. The proposed Amendment 9 would have voiced opposition to President Obama’s health care overhaul and, the AP said, could have prevented a similar state law.
The Restore Justice campaign will push for removal of the two justices in retention elections. A press release about the campaign said, “These justices sided with the liberal political agenda of four Florida citizens having close ties to the Obama administration who filed suit in late June, alleging that three statements (comprising a mere twenty words) in the ballot summary were misleading, to thereby disenfranchise millions of Floridians desiring to exercise their constitutional right to vote on the legislature’s proposed amendment.” Read more
In other news about fair and impartial courts, or developments that could affect their impartiality:
- In the wake of Citizens United and the increased political spending it has unleashed, an editorial in USA Today was headlined, “Our view on campaign finance: Who’s buying this election? Who knows?”
- Partly as a result of Citizens United, new “super” political action committees or “super PACs” have emerged, pumping millions of dollars into political campaigns, according to a Washington Post article. Meanwhile, an Associated Press article examined election-cycle spending influenced by Citizens United and reported, “GOP Groups Overwhelm Dems With Political Ads.”
- A trial about to begin in a federal courtroom in New York City for Guantanamo Bay detainee Ahmed Khalfan Ghailani “will be the most visible demonstration” of a White House strategy to try terror suspects in civilian courts, according to a NPR report.
- As for Ghailani, who has appeared in both military and civilian courts, he prefers the latter because, he says, it has provided him broader rights and is fairer, a New York Times article stated.