Gavel Grab

Archive for September, 2010

Holder: Time to Address 'Crisis in our Courts'

U.S. Attorney General Eric Holder has delivered an urgent appeal from the Obama administration for the U.S. Senate to end a “crisis in our courts” created by judicial vacancies and vote to confirm nominees who have gained majority support.

In a Washington Post op-ed, Holder points to 23 judicial nominees awaiting votes in the final days of this year’s Senate calendar, with 16 of them having won unanimous bipartisan approval from the Senate Judiciary Committee. He calls the confirmation process “twisted in knots” and protests that the long-delayed nominees have support from home-state senators and drew “little or no opposition” in committee. He warns that the federal judiciary, with 103 vacancies, is severely stressed:

“The federal judicial system that has been a rightful source of pride for the United States — the system on which we all depend for a prompt and fair hearing of our cases when we need to call on the law — is stressed to the breaking point.”

The attorney general quotes Supreme Court Justice Anthony Kennedy as recently cautioning that if important judgeships are left vacant, the “rule of law is imperiled.” Holder concludes by calling on Senate Republican Leader Mitch McConnell to live up to a statement he made in 2005 calling for up-or-down votes on judicial nominees with majority Senate support:

“I agree. It’s time to address the crisis in our courts. It’s time to confirm these judges.” Read more

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WV Justice Does Turnabout, Recuses Self

After his legal reasoning was questioned in the blogosphere, a West Virginia Supreme Court justice did a turnabout and announced he was disqualifying himself from a case that involves the state limit on punitive damages.

Justice Menis Ketchum said in a memorandum he saw no legal basis for his disqualification, but it appeared that “the lawyers who moved to disqualify me are attempting to create a ‘firestorm’ by assaulting the integrity and impartiality of West Virginia’s Supreme Court,” according to a posting by Tony Mauro in The Blog of Legal Times.

That blog had reported last week on Justice Ketchum’s initial decision not to disqualify himself, although he had made a campaign pledge that “I will not vote to overturn [the law], I will not vote to change it” (see Gavel Grab).

The civil case presents “a direct challenge to the constitutionality of the state Medical Professional Liability Act, which limits punitive damages in malpractice suits to $500,000,” according to the BLT blog.

Another West Virginia justice’s decision against recusing himself led to a landmark U.S. Supreme Court decision in 2009, in Caperton v. Massey. Justice Ketchum’s new statement suggested that blog or press portrayals of the court figured heavily in his decision to recuse. Here is his unusual, entire new statement:

“Upon further reflection, I am disqualifying myself from the above case. I strongly believe there is absolutely no legal basis for my disqualification. See Republican Party of Minnesota v. White, 536 U.S. 765 (2002). However, it appears to me that the lawyers who moved to disqualify me are attempting to create a ‘firestorm’ by assaulting the integrity and impartiality of West Virginia’s Supreme Court.

“I promptly sent my disqualification response to the lawyers on September 23, 2010. The next day my response appeared in a Washington internet blog. (See copy attached.) How did a blog so quickly get my disqualification memorandum which was sent only to the lawyers in the case? Why is it newsworthy that a West Virginia judge previously exercised his right of Freedom of Speech? Read more

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Pastor Files Complaint Against IA Judge

A Polk County, Iowa judge is the target of a complaint by a Sioux City cleric, accusing the jurist of voter intimidation. It’s part of the fallout from an ouster drive to remove three state Supreme Court justices in November retention elections.

The Rev. Cary K. Gordon lodged the complaint on behalf of PeaceMakers Institute in Sioux City, according to an article in the Sioux City Journal.

Gordon’s complaint alleged that Judge Hansen stated during a panel discussion at Waterloo College that the drive to oust three justices was at best, misguided, and at worst, an abuse of the system.

Judge Hanson told the newspaper he was not trying to discourage anyone from voting, and that he wants people to cast their votes “in a responsible and informed fashion.” You can read about the ouster campaign, responding to a unanimous ruling that legalized same-sex marriage, in Gavel Grab.

Meanwhile  former lieutenant governors Joy Corning, a Republican, and Sally Pederson, a Democrat, were preparing to announce today a coalition to “”educate Iowans about an effort to hijack Iowa’s courts,” the Des Moines Register reported.

The group, “Justice, Not Politics” is intended to protect Iowa’s merit selection system for choosing judges.

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U.S. Supreme Court Briefs

As the U.S. Supreme Court prepares for a new term,  these developments were on the horizon:

  • Justice Elena Kagan, 50, will have a formal investiture ceremony Friday, and attendance is by invitation only, SCOTUSblog reported.
  • “Free speech stands front and center” in the new term, “in a pair of cases testing the First Amendment’s reach in the digital age,” according to a Wall Street Journal article.
  • An authorized biography of the late Justice William Brennan will be published Oct. 4, co-authored by Stephen Wermiel and Seth Stern. It is entitled, “Justice Brennan: Liberal Champion,” and is discussed in a Wall Street Journal report; excerpts are available by clicking here.
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Colorado Ouster Group is 'Political,' Judge Rules

Clear the Bench Colorado, a group pressing for the ouster of three state Supreme Court justices in retention elections, is a political committee and must comply with new donation limits, a judge has ruled.

The group will face contribution limits of $525 and will have to disclose more frequently its campaign donors, according to an Associated Press article.

Luis Toro, director of Ethics Watch, called the ruling “a victory for Colorado voters who said in 2002 that judicial elections should be governed by the same rules that apply to other candidate elections,” the Colorado Independent reported.

Administrative Law Judge Robert Spencer ruled that when Clear the Bench Colorado filed as an issues group with state authorities, it should have filed as a political committee. Toro said Judge Spencer’s ruling means that “big money” will be not be permitted in judicial elections, and he said Clear the Bench has taken contributions greater than the $525 limit. Read more

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Ouster Effort to 'Intimidate Our Courts' Denounced

An effort in Iowa and several other states to remove high court justices in retention elections, in response to controversial rulings, is drawing heightened national attention.

In Iowa,  social conservatives are leading a drive to oust three justices over a unanimous state Supreme Court ruling that legalized same-sex marriage. Troy Price of the gay rights group One Iowa told the New York Times that the effort sends a chilling message to judges nationwide.

“Our concern is the message it sends to judges around the country that if you have a case like ours come before you, you could very well lose your jobs over it,” Price told the Times for an article headlined, “Voters Moving to Oust Judges Over Decisions.” He added, “This is an effort to intimidate the courts in Iowa and intimidate courts all across the country.”

Brian S. Brown, executive director of National Organization for Marriage, a conservative group, said an ouster vote in Iowa’s fall retention elections would telegraph a message to all judges.

“It sends a powerful message,” Brown said, “that if justices go outside the bounds of their oaths, if the justices go outside the bounds of the U.S. and state constitutions they’re going to be held accountable.” His group has pumped $230,000 into TV advertising critical of the Iowa justices.

The Times article discusses retention elections in several states that were highlighted earlier by a joint report from the Justice at Stake Campaign and the Brennan Center for Justice. The two nonpartisan groups said states that work to insulate judges from electoral pressures are facing some of the nation’s most contentious, and potentially costly, court elections this fall. Echoing the JAS and Brennan report, the Times article stated:

“Around the country, judicial elections that were designed to be as apolitical as possible are suddenly as contentious as any another race.” Read more

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Another Recusal Controversy in West Virginia

There is a new recusal issue facing a state Supreme Court justice in West Virginia, the home of a judicial recusal dispute that made landmark law in the U.S. Supreme Court last year.

Justice Menis Ketchum has declined to step aside from a case involving the state limit on punitive damages, according to a Blog of Legal Times article, although he made a campaign pledge that “I will not vote to overturn [the law], I will not vote to change it.”

He declined a party’s request to recuse, and issued the following statement, the blog reported: “I am satisfied that my predisposition does not equate to an actual bias towards any of the parties in this appeal.”

The justice’s remark relates to a case that the blog describes as “a direct challenge to the constitutionality of the state Medical Professional Liability Act, which limits punitive damages in malpractice suits to $500,000.”

“I disagree that having a preconceived view on the MPLA caps is grounds for disqualification,” Justice Ketchum said in his statement. His recusal was sought by Robert Peck of the D.C.-based Center for Constitutional Litigation, representing plaintiffs in the case, MacDonald v. City Hospital. Read more

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Corporations Seen 'Fudging' on Indirect Spending Plans

Are some publicly traded companies fudging about their plans to fund indirect political expenditures following the Supreme Court’s Citizens United ruling? A  non-profit group that pushes for greater corporate transparency thinks so.

In its September newsletter, the Washington-based Center for Political Accountability said it sent a letter to all S&P 500 companies, asking about company policies and plans for engaging in spending that targets political candidates.

More than 55 companies responded by the newsletter’s deadline, and 31 of them said they did not intend to spend corporate cash on independent expenditures. The newsletter added, “Yet 23 of these companies stated they were reluctant to monitor or impose conditions on their payments to trade associations, or they did not address the issue at all.”

The headline for the article declared, “CPA Finds Companies Fudge on Indirect Political Spending Plans.”

Remarked Bruce Freed, the Center’s president, “[W]e are concerned that companies may be funneling millions of potentially hidden corporate dollars into political elections.” He added, “Why are they dodging a commitment to transparency and accountability? When trade associations and c4 groups become the vehicle for company political spending, investors are left in the dark — and they are at risk.”

The Supreme Court’s Citizens United ruling cleared the way for unlimited political spending by corporations and unions. To learn more about Citizens United, read the Justice at Stake amicus brief in the case or the JAS news release commenting on the high court’s decision. You can also read in Gavel Grab a series of posts about developments tied to Citizens United.

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Polarized Senate and 'Disorder in Court'

There was a sudden burst of media coverage and commentary after the Senate Judiciary Committee voted again this week to recommend confirmation of four of President Obama’s judicial nominees, including his most controversial pick, Berkeley law professor Goodwin Liu (see Gavel Grab).

The coverage offers an updated snapshot of the polarized politics surrounding judicial nominations. Accordingly, Gavel Grab will sum it up here–after quoting from the Wall Street Journal’s Law Blog about why the judicial vacancy backlog caused by partisanship is important:

“The real victims in this? How shall we count the ways? The American taxpayers; other federal judges, who have to labor on short-handed; people awaiting disposition of their cases; the nominees themselves, who spend months, if not years, in purgatory. It just goes on and on ….”

An Associated Press article was headlined, “Democrats say GOP blocking votes for nominees to lower courts, call tactic unprecedented.” Three nominees approved by the committee want to sit on federal district courts, and they have run into heavy GOP opposition. Protested Democratic Sen. Sheldon Whitehouse of Rhode Island (photo above left):

“Traditionally, when two home state senators approved a nominee…they got a straight up-or-down vote without procedural obstruction.

“Erecting a blockade for a district court nominee is a new threshold we will cross. Once that tiger is let out of a cage, it will never get back in.”

But senior committee Republican Sen. Jeff Sessions of Alabama (photo above right) contended that home-state senators’ support alone doesn’t qualify a judge for a lifetime appointment. Sessions went on to blast Obama: Read more

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Million-Dollar Retention Elections in Iowa?

Could Iowans see an unprecedented $1 million flow into three retention elections for state Supreme Court justices this fall?

A Des Moines Register blog posting raises that possibility. The blog attributes it to an official of the Justice at Stake Campaign, which issued a joint report with the Brennan Center for Justice (see Gavel Grab) saying campaign spending in judicial retention elections will likely surge this year, due to challenges under way in four states.

“We’re startled just because we’ve never seen it before,” said Charles Hall,  Justice at Stake communications director. “We’ve never seen this kind of energy and money in this many retention elections at the same time.”

In Iowa,  social conservatives are seeking to oust three justices who participated in a unanimous ruling that legalized same-sex marriage. National conservative groups spent more than $121,000 on TV ads in Iowa through Sept. 21, supporting the ouster effort, the two nonpartisan reform groups said. Other states with retention elections that have heated up are Colorado, Illinois and Kansas.

Justice at Stake is a national partnership that works to preserve fair and impartial courts.

“It is important that judges have as much freedom as possible to honestly examine and apply the law,” Hall told the Iowa newspaper. “The concern we have is if judges feel like they can be thrown out anytime they have to issue an honest ruling in a controversial case. We don’t know how that will affect courts over the long haul.”

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