Gavel Grab

Archive for January, 2011

Second U.S. Judge Tosses Health Care Provision

Federal District Judge Roger Vinson ruled on Monday that the Obama administration’s requirement for almost all Americans to buy health care insurance is unconstitutional.

The Florida judge’s opinion brought to two versus two the decisions from lower federal courts thus far on legal challenges to the health care plan approved by Congress and signed by President Obama last year, according to a New York Times article.

“The divided opinions set the stage for a potentially landmark constitutional debate in the higher courts, with a final decision expected in the U.S. Supreme Court, perhaps as soon as next year,” the Los Angeles Times said.

Judge Vinson (photo, above right) ruled on a major legal challenge that was brought by governors and attorneys general from 26 states, Reuters reported. Most of the state leaders are Republicans.

“I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate,” Judge Vinson wrote, according to a USA Today report. “Individual mandate” refers to the section of the law requiring most Americans to buy health insurance or pay a fine.

The judge contended that if appellate courts agree with his analysis, the entire law should be ruled void. His ruling went further than the approach taken in December by Federal District Judge Henry Hudson in Virginia. Judge Hudson struck down the “individual mandate” provision but did not find the whole law unconstitutional (see Gavel Grab). Read more

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Supreme Court Reversals of 9th Circuit Highlighted

The recent action of the Supreme Court in reversing a series of Ninth U.S. Circuit Court of Appeals cases has attracted attention from news media analysts.

A San Francisco Chronicle commentary by Debra J. Saunders was headlined “Where judicial activism morphs into disregard.” Saunders criticized the Ninth Circuit:

“Followers of the Ninth Circuit are painfully aware of its reputation as an activist court that flouts laws it doesn’t like and bulldozes rulings that defy its left-leaning politics. The San Francisco-based judicial district serves as a textbook example of how judges should not behave.”

A Washington Post article was entitled, “Supreme Court reversals deliver a dressing-down to the liberal 9th Circuit.” The Post’s analysis of the Ninth Circuit’s work is excerpted here:

“As the most liberal circuit in the land, its work quite often is at odds with an increasingly conservative Supreme Court.

“But some of the recent reversals have been delivered with a lash that those who closely watch the courts say reflects more than just a disagreement of law.”

According to the Post, a Stanford University law professor, Jeffrey L. Fisher, did not think Ninth Circuit judges were meaning to “flout” Supreme Court decisions. Instead, Fisher saw differences in approach that frequently bring reversals.

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KY Judge Faces Ethics Counts

Kentucky’s Judicial Conduct Commission has charged Circuit Judge Daniel Ballou with two ethics counts for a political donation and for e-mailing campaign material.

The state’s judicial canons state that a judge shall “shall refrain from inappropriate political activity,” according to a Lexington Herald-Leader article about the misconduct charges. This activity includes giving money to a political candidate and endorsing publicly or opposing a candidate.

Judge Ballou was charged with contributing $562 to Republican Sen. John McCain’s presidential campaign in 2008 and sending an e-mail in 2010 about Rand Paul’s position on the 2nd Amendment. Paul later won election to the U.S. Senate.

Last month, the judge denied the allegations in papers filed with the commission. He has a right under the First Amendment to give his opinion, the judge said. He said the contribution to McCain occurred when he was deployed with the military in Iraq, and he did not intend the e-mail about Paul as an endorsement.

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TN Merit Plan 'Instills Trust' from Public

Why stick with a merit-based system for selecting high-level judges in Tennessee?

Because it “instills trust,” contends Dwight Lewis in a Tennesseean commentary defending the so-called “Tennessee Plan” from those who are talking about replacing it with judicial elections.

Lewis tackles the critics with excerpts from the thinking of the judiciary, the executive branch and a bar leader.

He quotes retired state Supreme Court Justice Adolpho A. Birch as saying the existing plan “provides a quality judiciary.”

He portrays judicial elections as presenting a “recipe for conflicts of interest” and quotes newly inaugurated Gov. Bill Haslam as backing the current system:

“As somebody who has spent two years going across the state campaigning, I’m just not sure we want our Supreme Court judges to do that. That being said, I do think we need to make sure we have a great, open and transparent process for nominating those folks so we can make sure we have great representation there.” Read more

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Branstad Prepares to Interview Court Finalists

Iowa Republican Gov. Terry Branstad said Monday he does not plan to quiz nine candidates for three state Supreme Court openings about their views on the court’s controversial marriage ruling.

The governor said he intends, according to a Mason City Globe Gazette article, to “focus instead on the candidates’ fairness, temperament, and knowledge and experience, and also their philosophy with respecting and recognizing the fact there are three branches of government and the powers of each are limited and respecting and recognizing there are times when the court needs to exercise judicial restraint.”

In November, social conservatives who were angry about a high court ruling that legalized same-sex marriage voted to remove three justices from the court. Last week, a screening commission completed interviews of 60 candidates and made recommendations to the governor for his appointment (see Gavel Grab).

Other media reports and commentary focused on the panel’s recommendations and on its publicly held interviews. A Des Moines Register article reported that law professor Angela Onwuachi-Willig of the University of Iowa would become the state high court’s first minority jurist if confirmed, and that she was the only minority candidate among the nine.

Rekha Basu wrote in a commentary in the Des Moines Register that the candidates’ interviews made for “fascinating” viewing. She praised the increased transparency that was adopted for the process:

“[A]n unvarnished view of the proceedings, made possible by the first-time use of video, should reinforce confidence in its integrity and dispel concerns about bias. It showed the process is wide open, and anyone who meets basic qualifications will get a fair hearing.”

A sharply differing view came in the “Iowa Republican” blog, where Nathan Tucker wrote that the commission “showed how personal connections, geography, race, gender, and ideology played a role in their selection process.”

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Friday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • Former Justice Elizabeth Weaver of the Michigan Supreme Court — and her efforts to seek reform for that court — were profiled in a Toledo Blade article. You also can learn more about her by clicking here for earlier Gavel Grab posts.
  • J. Paul Oetken, nominated by President Obama for a judgeship in Manhattan, could become the first openly gay man to sit on the federal bench, the New York Times reported.
  • In an appearance at Kansas State University, Supreme Court Justice Sonia Sotomayor said she was pleased to see Republican and Democratic lawmakers sitting beside each other at this year’s State of the Union address, unlike their divided seating a year earlier, according to an Associated Press article.
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Sparks Fly over Proposal to Dump TN Merit System

A proposal to dump merit selection and replace it with election of the Tennessee’s highest judges is provoking some sizzling debate.

Here’s the headline from an article in the Nashville Scene about the debate: “Conservatives want judges to sing for their supper and submit to contested election — but will that pimp out the bench?”

For readers accustomed to more staid reporting, this piece may come as a jolting — or perhaps welcome — change. It also hits on high points of the debate. Here is state Supreme Court Justice Gary Wade (photo at right), who has contributed campaign money to an opponent (see Gavel Grab) of an advocate for the switch:

“I cannot think of anything more disturbing about the future of the judiciary than to have these court races subjected to partisan, highly financed elections where basically whoever’s able to generate the most in contributions is going to be the likely winner….A great judge is like a referee in a football game. To have one side or the other cheering for the referee is a little bit unseemly to me.”

The elections advocate, Republican state Sen. Mike Bell, criticized action by some defenders of the selection system. According to the article, Tennesseans for Fair and Impartial Courts “is hitting up the biggest law firms for cash to fund” the defense. Bell had this to say:

“It does have the appearance of impropriety…These law firms go before the very courts that this system tends to protect because it lets the judges run for re-election without having to face any competition.

“They’re trying to protect the system that they control right now. They don’t want the people having any say.” Read more

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Sharp Edges at WI Court Candidates' Forum

Some candidates for the Wisconsin Supreme Court already are engaging in sharp criticism, and an early target is the court’s handling of an ethics case against one of its own.

Last summer, the high court  deadlocked on the merits of an ethics complaint accusing Justice Michael J. Gableman of dishonesty in a 2008 campaign ad that assailed his opponent, Justice Louis Butler.

At a forum hosted by the Milwaukee Bar Association, four candidates seeking a seat on the high court this year were asked what court decision they had disagreed with. Three of them — attorneys Marla J. Stephens, JoAnne F. Kloppenburg and Joel Winnig — cited the deadlock in the ethics case, according to a Wisconsin Law Journal article.

“Justice Gableman lied about Justice Butler,” the Milwaukee Journal Sentinel quoted Stephens as saying.

“We all know that when we communicate, we do so by what we say directly and by what we imply,” she said. “And what he implied about Justice Butler was a lie. The Supreme Court got it wrong. Justice Gableman lied about an opponent in a race and his colleagues should have had the courage to tell the people of this state that what he did was wrong.”

Candidate Winnig criticized Justice David Prosser, an incumbent who is seeking re-election. Justice Gableman “was elected by lying and cheating. (Prosser) refused to impose the discipline that was warranted,” Winnig said. Read more

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JAS Capitol Briefing: Fair Courts 'Under Attack'

Impartial courts across America are under unprecedented attack, leaders and partners of the Justice at Stake Campaign warned at a Congressional briefing Friday.

The national, nonpartisan campaign held a briefing entitled “Justice for Sale? The Battle for America’s Courts,” its first briefing ever on Capitol Hill dealing with state court issues.

The campaign presented human faces reflecting both the battle by special interests to influence the courts and the struggle of activists and reformers to keep the courts fair and impartial.

“I have experienced the devastation and destruction” that big-money special interest spending causes in judicial elections and  the courts, a somber Hugh Caperton (photo above left) told the audience. A businessman, he was the plaintiff in Caperton v. Massey, a landmark Supreme Court case that highlighted nationally the threat posed by special interest spending in judicial elections (see Gavel Grab for background).

Judge Wanda Bryant of the North Carolina Court of Appeals (photo above right) described herself as a staunch advocate for the state’s public financing system for appeals court judges. She has run in elections both without public financing, and with it, and she prefers the latter for the way “it helps promote judicial independence” and “to reduce the appearance of impropriety” that can come with large campaign donations.

Rep. Hank Johnson of Georgia, who co-hosted the event, praised Justice at Stake’s “tremendous mission.” In his introductory remarks, he said, “An impartial judiciary is the hallmark of our legal system.”

Other speakers  documented both the threat to an impartial judiciary of soaring special interest spending, and an array of reforms to combat the threat. They included Bert Brandenburg, JAS executive director; other JAS staff; Seth Andersen, executive director of the American Judicature Society; and Adam Skaggs, counsel, the Brennan Center for Justice.

To learn more about issues for the state courts, and possible reforms, check out Justice at Stake’s issues page on the topic.

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Iowa Ouster Vote Still Stirs National Debate

A screening commission has recommended nine finalists to fill three vacancies on the Iowa Supreme Court that were created when voters erupted over a unanimous court ruling that legalized same-sex marriage.

A national newspaper, meanwhile, seized on the Iowa news to spotlight a  “growing national trend of special-interest groups targeting judges with whom they disagree” and divided opinion among judicial analysts about the trend.

The USA Today article was headlined, “Influence of special interests felt in state courts.” It reported that some analysts see high-court judicial independence threatened by the “increasing influx” of millions of dollars in special interest money:

“‘Within our system, judges are not supposed to represent specific constituencies,’ said Adam Skaggs, counsel for the Brennan Center for Justice at New York University. ‘They are supposed to answer to the law and to the Constitution. They are not supposed to take into consideration any political concerns.’”

The article quoted a different view from James Bopp, an Indiana-based lawyer. When a partisan governor appoints a judge, it’s not much different from special interests influencing elections, he said.

Bopp said, “Even in the most insulated system, the governor appoints the chief justice.” He added,  “Everyone is accountable to someone.”

In Iowa, the commission recommended five judges, three lawyers and a law professor for the state Supreme Court, according to a Des Moines Register article. The panel had interviewed 60 candidates before deciding on finalists to recommend to the governor. While the panel engaged in a more public interviewing process than before, the governor is expected to interview the finalists in private. Read more

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