Archive for February, 2011
Litigants can’t get their cases heard in a timely fashion, and fewer people are willing to be nominated for judgeships due to a slower Senate confirmation rate for the federal bench, U.S. District Judge Royce Lamberth said Monday.
“I say to both Republicans and Democrats: You’re injuring the federal judiciary,” Judge Lamberth said. “Our country needs a fair and impartial federal judiciary,” a Blog of Legal Times article quoted him as saying during a panel discussion at the Brookings Institution.
Judge Lamberth is chief judge of the U.S. District Court for the District of Columbia. He was joining others who have said the Senate and White House need to fix the problems that have caused significant delays in the judicial confirmation process.
To learn more about judicial confirmation trends in the Obama administration, check out Gavel Grab.
In these other dispatches about fair and impartial courts:
- The Utah House on Monday rejected legislative attempts to delay a shift of Utah justice courts to retention elections, according to an article in Gavel to Gavel, a publication of the National Center for State Courts. It is a JAS partner.
- Supreme Court Justice Clarence Thomas, speaking at an event in Virginia sponsored by the Federalist Society, responded to liberal critics who have questioned his ethics, according to a Politico article. Justice Thomas said he and his wife, Virginia Thomas, “believe in the same things” and “are focused on defending liberty.” See Gavel Grab for background.
- “Court system in peril amid budget crisis” was the headline for a Miami Herald article examining concerns of South Florida judges, lawyers and court workers about impending budget cuts.
There’s a stinging new condemnation of special interest spending on judicial elections, penned by a partner of Justice at Stake.
Charles Kolb, president of the Committee for Economic Development, examines judicial election spending that he says can lead to perceptions of “jukebox justice.” He does this in an essay praising recusal reform recently announced in New York State .
Kolb sets the scene. “The sad truth is that far too often justice is for sale in American courts, and the public barely expresses outrage,” he writes in his Huffington Post commentary.
He goes on to describe practices that amount to a “steadily increasing judicial arms race” in many states where judges are elected, and the questions raised about impartial justice when elected judges take campaign money from parties who will appear before them in court.
Kolb, however, is not without hope. He alludes to the reform announced by Chief New York Judge Jonathan Lippman (see Gavel Grab for background), and points to it as the kind of reform that can dramatically improve public trust in our courts:
“If our state courts are seen as dispensing ‘jukebox justice,’ then all Americans lose: our judges will have become just one more commodity for sale, and our system of justice and its principles of fairness, objectivity, and independence will be lost. What happened in New York sends a message to the rest of the nation, and other state courts should follow Judge Lippman’s splendid example.” Read more
While a bill to replace merit selection of the Kansas Court of Appeals has drawn attention (see Gavel Grab), a like-minded measure has advanced in Oklahoma.
The state Senate Judiciary Committee advanced a bill to ask voters whether to abolish the Judicial Nominating Commission and whether the state Senate should confirm judicial appointments made by the governor, according to a Tulsa World article.
Requiring Senate confirmation would draw politics into choosing judges, according to critics, and could lead to delays in reducing openings on the bench.
Merit selection is used in Oklahoma to choose appellate judges and to fill interim vacancies on the district court, according to an American Judicature Society guide to how states select their judges. You can learn more about merit selection from a Justice at Stake issues page on the topic.
The Kansas House of Representatives has passed a bill to replace merit selection of judges on the Court of Appeals with appointment by the governor, subject to state Senate confirmation.
The current selection process, involving a judicial nominating commission that sends candidates to the governor, gives too much influence in the process to attorneys and disenfranchises other residents, contended the legislator carrying the bill, Republican Rep. Lance Kinzer.
He also said the proposed process would mirror federal judicial selection, according to a Topeka Capital-Journal article.
The bill passed over opposition expressed this week by Judge Richard D. Greene, chief judge of the appeals bench, who criticized the idea of replacing merit selection with a “purely political selection process.” Judge Greene added, as Gavel Grab mentioned:
“We don’t need politicians as judges. We need our best and brightest to be judges who will fairly and impartially interpret and apply Kansas law without regard to political ideology, political agenda, political party or political contributors.” Read more
Chief Justice Wallace Jefferson of the Texas Supreme Court, delivering his biennial State of the Judiciary address, has renewed a call for reform of partisan judicial elections in the state.
“A justice system based on some notion of Democratic or Republican judging is a system that cannot be trusted,” he said, according to transcript of his text accompanying a Texas Tribune article. Justice Jefferson urged these reforms:
- For the legislature to “send the people a constitutional amendment that would allow judges to be selected on their merit.”
- Short of that, “eliminate straight- ticket voting that allows judges to be swept from the bench … not for poor work ethic, not for bad temperament, not even for their controversial but courageous decisions – but because of party affiliation.”
- “[E]xtend terms for state judges, from four years to six for district court judges, and from six years to eight for appellate courts judges. This will avoid some of the overhaul that occurs each election cycle, and drastically slows down the system. And let’s bring sense to the process to allow a judge appointed to an unexpired term to serve a full term before having to face the voters.”
If the federal government is forced to shut down as a result of a budget impasse in Congress, the federal judiciary has plans for dealing with it.
A memo from the Administrative Office of the U.S. Courts was obtained by the Blog of Legal Times, and the memo said guidance on operating during such a shutdown would be issued soon.
Meanwhile, the memo by James Duff, director of the Administrative Office, discussed belt-tightening steps in the face of possible funding cuts:
“With all of this uncertainty and out of an abundance of caution, we are urging chief judges and court unit executives to institute immediately a hiring freeze for all but the most critical vacancies until a final FY 2011 spending bill is enacted. We also urge you to defer cash awards and discretionary step increases and to limit non-salary spending to essential expenditures only.
“We believe your adoption of these measures will better position the Judiciary in the event final FY 2011 funding levels necessitate sharp reductions to court allotments below the interim financial plan.”
More than 100 law professors have signed a letter seeking action by Congress to establish “mandatory and enforceable” ethics rules for Supreme Court justices.
The letter also asks that Congress establish for the first time clear rules about the circumstances when an individual justice should recuse, or step aside from hearing a case, according to a Washington Post article. The letter states:
“Justices of the United States Supreme Court have not adopted and are not subject to a comprehensive code of judicial ethics. Nor are denials of motions to recuse by individual justices required to be in writing or subject to review. Recent media reports have focused public attention on this situation. The purpose of this letter is to issue a nonpartisan call for the implementation of mandatory and enforceable rules to protect the integrity of the Supreme Court.”
The Alliance for Justice coordinated the letter, according a Blog of Legal Times article. The law professors’ letter cited the Supreme Court’s landmark Caperton v. Massey decision from 2009 in seeking recusal standards for the justices:
“Caperton illustrates the hazards of allowing self-judging on recusal questions….Unlike Caperton, where the Supreme Court reversed the self-judged view of a single state court judge, there is no review procedure for recusal decisions by Supreme Court justices.” Read more
In these other dispatches about fair and impartial courts:
- President Obama’s controversial nomination of Goodwin Liu, a Berkeley law professor, for a seat on the Ninth U.S. Circuit Court of Appeals will be the topic of a second hearing before the Senate Judiciary Committee, on March 2, according to the Blog of Legal Times. Liu’s nomination died in the Senate last year after Republicans stalled action.
- “Don’t politicize court” by revising Kansas’ merit selection process for the state Court of Appeals, a Wichita Eagle editorial urged. For more about the proposal in the legislature, check out Gavel Grab.
- Mississippi Gov. Haley Barbour named Court of Appeals Chief Judge Leslie King to the state Supreme Court, for a seat vacated by the recent move of then-Justice James Graves to the Fifth U.S. Circuit Court of Appeals; both jurists are African American, according to an Associated Press report.
Conservative Republicans in the Iowa House are pushing legislation to bar county recorders from issuing marriage licenses to gay couples — and also to tie the state Supreme Court’s hands from ruling on the issue.
The latter proposal is an example of what is called “court-stripping,” or denying a court jurisdiction to consider certain hot-button issues.
In Congress, court-stripping legislation has sought to bar courts from considering detainee rights, abortion, religion (Ten Commandments, school prayer), and same-sex marriage.
According to an Associated Press article, however, Republican leaders who control the House vowed they don’t have plans to debate the measure, and Democrats in charge of the Senate called the bill unconstitutional and in direct conflict with a state Supreme Court ruling on same-sex marriage.
Carolyn Jenison, executive director of One Iowa, blasted the bill as “reckless legislating at its worst,” according to a Des Moines Register article, and said it “attempts to strip authority from Iowa’s top court.”
Glen Massie, a sponsor of the bill, said the purpose of the legislation was to advocate Judeo Christian ethics as law.
Remarked Drake Law Professor Ian Bartrum, “It’s technically probably constitutional but it’s a pretty rare and radical step and probably an ill-advised one.” He said a section of the state Constitution permits the writing of laws to bypass state Supreme Court review. Read more