Gavel Grab

It’s not only activists on the right who are beating a drum for impeachment of judges with whom they disagree, on such issues as gay marriage or striking down the military’s “don’t ask, don’t tell” policy.

From the liberal side, a group called The Peace Team has a website that decries the Citizens United decision last year and invites visitors to send a message urging lawmakers to impeach Supreme Court Justice Clarence Thomas “for ruling in favor of his own campaign contributors.” Or, you can order a bumper sticker declaring, “Impeach the Supreme Court 5.”

Partisan impeachments of judges are the atomic bomb of American politics, and Justice at Stake has warned against impeachment talk from both parties(see Gavel Grab).

Last fall, when Justice at Stake Executive Director Bert Brandenburg cautioned against impeachment calls by two congressmen, one a Democrat and one a Republican, he said:

“Almost every American, liberal and conservative, has been angered by particular legal rulings, but that’s because we ask courts to settle tough legal disputes. It is reckless to threaten judges with ouster simply because we don’t like a particular decision.”

JAS filed an amicus brief in the Supreme Court’s Citizens United case, and publicly stated its disappointment with the court’s eventual decision.

Marking another milestone in modern Iowa history, Gov. Terry Branstad today named three new justices to the state Supreme Court.

The three men, two judges and a lawyer, will fill vacancies created when Iowans voted on Election Day to oust three sitting justices, reacting with fury over a 2009 unanimous court ruling that permitted same-sex marriages in the state.

The appointees are Edward Mansfield, a judge on the Iowa Court of Appeals since 2009, according to an Associated Press article; Bruce Zager, a district judge since 1999; and lawyer Thomas Waterman. They all are registered Republicans, the Iowa Independent reported. Branstad is Republican.

The removal of three justices who appeared on the retention ballot last year marked the first time that voters opted against keeping a Supreme Court justice since 1962, when the state’s merit selection system for choosing judges was adopted, a Des Moines Register article said.

Branstad said his goal “was to choose Supreme Court justices, from the available slate of candidates, who are most likely to faithfully interpret the laws and Constitution, and respect the separation of powers,” according to a Radio Iowa report.

Read more

In a turnabout, President Obama has ordered an end to the federal government’s defense of a 1996 ban on gay marriage against lawsuits challenging it.

Under the Defense of Marriage Act (DOMA),  married gay couples (in states where their union is permitted) have been denied a mix of federal benefits provided to heterosexual married couples, including health insurance and the benefits of filing joint tax returns.

“After careful consideration, the president of the United States has made the determination that Section 3 of the Defense of Marriage Act as applied to same-sex couples who are legally married under state law, violates the equal-protection component” of the U.S. Constitution, Attorney General Eric Holder announced, according to a Los Angeles Times article.

The practical effect of the newly announced position, the newspaper reported, apparently is restricted to states where gays are permitted to marry legally. But there are broader implications of the new policy “because it says that discrimination against gays is generally unconstitutional, unless the government has a strong reason to justify its policy,” the newspaper said.

Obama has urged repeal of DOMA in the past, at the same time that Justice Department lawyers defended in court the constitutionality of the law, a New York Times article noted.

U.S. District Judge Gladys Kessler in Washington, D.C. has thrown out a lawsuit saying that President Obama’s health care overhaul violated Americans’ religious freedom.

The American Center for Law Justice, founded by Pat Robertson, brought the lawsuit. It contended the new health care law, and its provision requiring citizens to buy health insurance or pay a penalty, violated the religious freedom of those who count on God to protect them, the Associated Press reported.

Judge Kessler is the third federal judge appointed by a Democratic president to reject a challenge to the law. Two Republican-appointed federal judges have declared all or part of it unconstitutional, and a showdown over the statute before the Supreme Court is expected (see Gavel Grab for background).

With Kansas’ merit selection system for picking Court of Appeals judges “under attack,” that bench’s chief judge has leapt to its defense.

Judge Richard D. Greene contends in a Topeka Capital-Journal column that a bill in the legislature would replace merit selection with a “purely political selection process.”

The bill would require state Senate confirmation of judges appointed by the governor to the state Court of Appeals (see Gavel Grab). A screening commission that currently recommends nominees to the governor would not be involved.

Judge Greene wrote that it’s important to keep politics out of the courtroom:

“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.”

“The high quality of our appellate court will stay that way only if we continue to seek the best and brightest for our judges — not politicians selected for their political viewpoint or agenda. Abolishing the nominating commission in favor of a purely political choice is a big mistake.”

To learn more about how merit systems work, check out the Justice at Stake issues page on the topic.

The Justice at Stake Campaign, warning that a “deluge of special interest money is eroding public trust in America’s courts,” is urging the Supreme Court to uphold a provision of many public campaign financing laws.

An amicus brief filed by Justice at Stake with the Supreme Court this week addressed a nationally watched case from Arizona, entitled McComish v. Bennett.

The brief, signed by 13 former state supreme court justices and a state trial court judge, cautions that elected courts would be gravely threatened by outside influence if the provision is struck down.

Four states have adopted voluntary public financing of appellate court elections, and each has adopted the kind of “trigger funds” provision challenged in McComish. It furnishes extra dollars to publicly financed candidates running against opponents who exceed specified spending limits. In its brief, JAS defended the provision:

“Public financing eliminates the need for judges to ‘dial for dollars’ from major contributors, many of whom appear before them in court. It is therefore one of the most powerful reforms in shielding courts from special-interest influence.”

The four states with public financing of appellate court elections are North Carolina, New Mexico, Wisconsin and West Virginia. Their laws could be affected by the Supreme Court’s ruling in McComish.

Bert Brandenburg, JAS executive director, said in a press release that public financing laws “have bolstered trust in state courts, and they have greatly reduced pressure on elected state judges to seek money from special interests.” Brandenburg added, “They let judges talk to voters instead of donors, and protect the right of Americans to a fair day in court.” Read more

After a federal appeals court upheld Washington state’s campaign finance disclosure laws, the Supreme Court today declined to take up an appeal by the losing side.

Human Life of Washington, which was ordered to make public its donors for a campaign opposing the state’s assisted suicide ballot measure, had filed the unsuccessful appeal bid with the nation’s highest court.

A panel of the Ninth U.S. Circuit Court of Appeals said in October the Washington statute did not violate the First Amendment rights of Human Life of Washington (see Gavel Grab).

The group had maintained that the state’s disclosure requirements for political committees, independent expenditures, and political advertising were unconstitutional. It was represented by James Bopp, an Indiana-based lawyer who has challenged campaign finance regulations across the country. Read more

In these other dispatches about fair and impartial courts:

• Iowa Supreme Court Justice David Wiggins praised the state’s system of retention (up-or-down) elections for top court justices, saying the only problem with it is that a candidate is running against the notion of an ideal jurist, according to a Daily Iowan article.

• A Kansas House panel narrowly advanced a bill that would change the state’s merit selection system and require state Senate confirmation of judges appointed by the governor to the state Court of Appeals, according to a Topeka Capital-Journal article.

• Judge David R. Thompson, a senior judge on the Ninth U.S. Circuit Court of Appeals, has died. “You’d be hard pressed to find a more decent, thoughtful, smart, judicious, and modest man,” wrote Rick Hasen, who once clerked for the judge, in his Election Law blog. A Ninth Circuit obituary for Judge Thompson is available here.

Campaign contributions to judicial candidates can tilt a case’s outcome in the courtroom, an overwhelming majority of North Carolina voters said in a new poll.

The Justice at Stake Campaign and North Carolina Center for Voter Education, a partner of JAS, commissioned the poll. Released today, the poll had these main findings, according to a joint press release by the groups:

• 94 percent of North Carolina voters said they believe campaign contributions influence a judge’s decision in a case involving the donor. Of those polled, 43 percent say campaign donations can affect a ruling greatly.
• 79 percent of the voters said they think it poses a very serious problem when a candidate for the bench accepts a campaign donation from someone with a case that the judge might have to decide.
• 85 percent said judges should step aside from hearing cases that involve major campaign contributors.
• Regarding the state’s public financing system for judicial elections, 49 percent said they would be less likely to back a candidate for the legislature who wants to get rid of the program. Only 20 percent said they would be more likely to favor such a candidate.

“Trust in the courts is eroded when judges have to dial for dollars from parties who appear before them,” said Bert Brandenburg, JAS executive director. “North Carolina’s public financing is a national model, and this poll confirms that voters want to preserve a program that keeps campaign cash out of the courtroom.” Read more

In the recent corruption trial of former Judge Mark Ciavarella, our friends at Pennsylvanians for Modern Courts find fresh  reasons to argue for getting judges “out of the fundraising business” by adopting merit selection.

In a commentary entitled “Where Did That Campaign Money Go?” Shira Goodman, the group’s associate director, seizes on testimony by Ciavarella at his trial that he skimmed from retention election campaign proceeds.

According to a Philadelphia Inquirer account of the trial, Ciavarella testified that “he had kept up to $20,000 in cash raised in 2005 when he was running for retention as a judge, keeping the bills at home and dipping into this kitty when needed. It is illegal under state law to use campaign money for personal expenses.”

Ciavarella’s testimony “demonstrates the dangers inherent in the expensive judicial electoral system,” Goodman writes. She continues:

“Many judges claim that in strict compliance with the spirit of the rules, they don’t even read the lists of donors [to their campaign] and are unaware of who contributed to their campaign and in what amount. How is the public to believe this, especially in the face of evidence that a judge was able to keep and use campaign cash donations? And once this fallacy is removed, how is an already very skeptical public to believe that campaign contributions really have no impact on judicial decision-making?”

Goodman says the answer is replacing elections with merit-based selection of judges. You can learn more about these appointment-and-retention systems from Justice at Stake’s issues page on the topic. Pennsylvanians for Modern Courts is a partner group of JAS.

Ciavarella was convicted of a dozen charges, and acquitted of 27 others, for accepting a kickback from the builder of children’s detention centers (see Gavel Grab).