Gavel Grab

Archive for May, 2011

Critic to Judge: 'Pack Your Bags While You Can'

Emotions are running so hot over a controversial Indiana Supreme Court ruling that one columnist has urged the opinion’s author, Justice Steven David, to “pack your bags while you can.”

In a NWI Times commentary, Mark Kiesling sharply criticized the 3-2 court ruling. It  said citizens do not have a legal right to resist unlawful police entry into their homes. The ruling brought Indiana law into line with that of many other states (see Gavel Grab).

Kiesling suggested that the the ruling imposes a “police state,” and he said the majority opinion “could have come straight from Uncle Joe Stalin’s chief prosecutor.”

At a protest rally, there were calls to oust Justice David when he appears on a retention ballot next year.

Kiesling wrote that Justice David  “has become the lightning rod for anyone interested in preserving his or her Fourth Amendment rights.”

He went on, “It’s time to take him down. Anyone can make a mistake, sure. But when you make one of this magnitude, you have proven you don’t have the right stuff to be a justice on a state’s highest court.”

The commentator quoted Justice David as writing that “the right to resist an unlawful police entry into a home is against public policy.” Kiesling retorted, “No, Justice David. It is you who are against public policy. Pack your bags while you can.”

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Editorial Salutes Veto Threat on Detainee Limits

President Obama has responded to House-passed limits on his authority to deal with Guantanamo detainees by issuing his first veto threat.

A Washington Post editorial applauds Obama’s stance, saying he “seems willing to fight” after lawmakers have repeatedly sought to tie his hands on dealing with detainees. “It’s about time,” the editorial adds about the president’s new posture.

One provision of a House-passed defense bill would bar the president from prosecuting Guantanamo prisoners in federal court. Another would require foreign nationals charged with acts of terrorism to be tried only before military commissions.

Obama, the editorial says, “is justified in fighting against the attempt to strip federal courts from his anti-terrorism arsenal.” It quotes a White House statement that said, “Presidents of both political parties — including Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, and George W. Bush — have leveraged the flexibility and strength of our Federal courts to incapacitate dangerous terrorists and gather critical intelligence.”

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Tuesday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • A trial court ruling that corporations may contribute directly to candidates for federal office “would probably not have any real effects on the 2012 elections,” according to a Roll Call article. It was headlined, “Campaign Finance Experts See Few Implications for Virginia Ruling.”
  • A recount was about to start in the Democratic primary contest for Commonwealth Court judge in Pennsylvania; Kathryn Boockvar finished ahead of Barbara Behrend Ernsberger  by only 2,116 votes in the May 17 election, the Philadelphia Inquirer reported.
  • Political obstructionism doesn’t delay judicial confirmations in Washington alone; in New Jersey, state Supreme Court nominee Anne Patterson, who was nominated by Gov. Chris Christie on May 3, 2010, was scheduled to get a hearing in a Senate committee on Tuesday. “Gov. Christie’s Supreme Court nominee gets hearing following extended standoff,” said a Newark Star-Ledger headline.
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Kloppenburg Concedes After Wisconsin Recount

Challenger JoAnne Kloppenburg conceded the 2011 Wisconsin Supreme Court election Tuesday to incumbent Justice David Prosser.

Kloppenburg’s remarks at a news conference followed a  recount in the close and hotly contested race. The recount reflected a victory for the incumbent with a margin of 7,006 votes.

“It would serve no purpose to bring a suit with insufficient legal basis. That is not the kind of lawyer that I am,” Kloppenburg said, according to a Milwaukee Journal Sentinel article.

The challenger said she had telephoned Justice Prosser to congratulate him. Later, he said he appreciated her “very gracious” concession.

One day after the April 5 election, the Justice at Stake Campaign said the mud-slinging, special-interest dominated battle for the Wisconsin Supreme Court represented the latest assault on the high court’s credibility.

“What we are seeing in Wisconsin borders on a crisis,” said Bert Brandenburg, executive director of Justice at Stake, in a post-election analysis. “Five years of sustained special-interest warfare is exacting a profound toll in public confidence in the state’s supreme court.”

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Lawsuit Against Ashcroft Rejected by High Court

Former Attorney General John Ashcroft may not be sued personally over the jailing of an American Muslim who never was charged with a crime, the Supreme Court ruled 8-0 Tuesday.

The court threw out a lawsuit against Ashcroft by Abdullah al-Kidd. A U.S. citizen, he was locked up for 16 days in federal detention, strip-searched and shackled. He sued over what he alleged was the unconstitutional use of a law meant to hold “material witnesses.” A district court judge and a panel of the Ninth U.S. Circuit Court of Appeals ruled that his lawsuit against Ashcroft and others could go forward (see Gavel Grab).

After finding that Ashcroft could not be held liable for the policy that led to al-Kidd’s jailing, the justices on Tuesday split over how best to determine whether federal authorities properly used  the “material witness” statute after the 2001 terrorist attacks, according to a USA Today article.

“Fully half of the eight Justices voting on the case sent out clear indications that they are deeply skeptical about” use of the tactic, which permits federal authorities to “take an individual suspected of terrorism ties into custody, and then hold him without any definite purpose of later calling him as a witness,” according to a SCOTUS blog post.

Justice Elena Kagan did not participate in the decision.

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Supreme Court Roundup

As the Supreme Court heads into the final weeks of its term, plenty of interesting articles on its members, retired members and its jurisprudence are emerging.

“Justice Stevens is Off the Bench but Not Out of Opinions,” declared the headline for a New York Times article by Adam Liptak. The article noted that the retiree “is telling people how he would have voted in recent cases, and he is singling out former colleagues for praise and criticism.”

Harvard Law professor Noah Feldman wrote a commentary for Bloomberg News that was entitled, “The United States of Justice Kennedy.” He wrote, “It is [Justice Anthony] Kennedy’s apparent unpredictability — and his willingness to make common cause with both factions in different cases — that is the source of his overwhelming power in court and country.”

Meanwhile, Bloomberg News reported that Justice Stephen Breyer unloaded holdings in Wal-Mart valued between $15,000 and $50,000 “in a move that has let him take part in a case that may limit class-action lawsuits.”

Also on the ethics front, Fox News reported, “Groups Target Thomas’ Wife’s Work to Force Him to Sit Out High Court Rulings on Health Care.”

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JAS: Why Judicial Election Reforms are Needed

Justice at Stake and the American Judicature Society, a partner group, have advanced arguments in support of the appointment of judges and other judicial election reforms in a letter to the editor published by The Washington Post.

Bert Brandenburg, executive director of JAS, and Seth Andersen, AJS executive director, pointed in the letter to important data about soaring spending in judicial elections during the past decade. The data  suggest, they said, that “justice could be for sale:”

“State supreme court candidates raised more than $206 million in the past decade, shattering records in 20 states. Much of this money came from lawyers and interest groups who appear before these candidates in court.”

The data was compiled in a 2010 report by Justice at Stake and its partners, entitled “The New Politics of Judicial Elections 2000-2009: Decade of Change.

In addition, the letter to the editor said, “Three in four Americans, most business leaders and nearly half of judges themselves believe that campaign cash is affecting courtroom decisions.”

The letter spotlighted the use by 24 states of merit selection of judges over a period of decades, “so that judges can be screened for experience, intellect and judicial temperament, and not face a tidal wave of special-interest money seeking to tilt the scales of justice.” Read more

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Prop 8 Ruling Seen Likely to Stand

The sexual orientation of a gay trial judge who struck down California’s ban on same-sex marriages is not likely to affect the outcome of the case.

That’s the conclusion of a review by the Los Angeles Times of  arguments raised by supporters of the ban, called Proposition 8, in an effort to vacate then-Judge Vaughn Walker’s ruling. Their challenge contends Walker, who disclosed after trial that he is gay and in a long-term same-sex relationship, could gain from a ruling in the case and should have made public earlier whether he wanted to marry his partner. Walker made the personal disclosures after he retired (see Gavel Grab).

Based on interviews with legal ethics experts, the article reached this conclusion:

“Gay and lesbian judges may preside over gay-rights cases and rule on same-sex marriage disputes as long as the jurists are not attempting to marry their partners.”

“But ethicists disagree on whether retired federal judge Vaughn R. Walker, 67, should have disclosed his 10-year relationship with his partner before presiding over the challenge to Proposition 8.”

A hearing on the challenge is set before a federal judge in San Francisco on June 13.

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Editorial Hits Campaign Donation Ban Ruling

A trial court ruling that corporations may contribute directly to candidates for federal office promises to worsen big-money political campaigning “and the corruption that comes with it,” a New York Times editorial warned.

Entitled “A Further Overreach on Political Money,” the editorial said the decision by U.S. District Judge James Cacheris ignored a Supreme Court ruling from 2003 in Federal Election Commission v. Beaumont. The 2003 decision said the ban on direct corporate contributions to candidates stood.

Judge Cacheris’ ruling deserves to be overturned, the editorial asserted, adding:

“Campaign money bundlers will keep pushing the limits wherever and however they can — and the integrity of our electoral system will pay the price. The courts need to do a far better job of pushing back.”

Tara Malloy of the Campaign Legal Center, a group that backs stronger campaign finance laws, said Judge Cacheris’ ruling was “way outside of its bounds.” Bloomberg quoted her as saying, “Not only it is a bad decision, but it’s a fairly shocking decision as well.” The Center is a Justice at Stake partner on issues of campaign reform.

But Sean Parnell, president of the Center for Competitive Politics, had a different view. “This would appear to be consistent with the Citizens United decision,” he said. “You would simply have the opportunity for legitimate, ongoing business corporations and unions to be able to contribute to candidates that they support. We think this is a great development.” Read more

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Friday Gavel Grab Briefs

Congress has approved the extension for four years of provisions in the USA Patriot Act, the nation’s main anti-terrorism law, and President Obama signed the measure into law Friday through use of an auto-pen.

Some surveillance powers authorized by the legislation drew opposition from certain lawmakers and activists including civil liberties groups, Bloomberg reported.

In these other dispatches about fair and impartial courts:

  • Supreme Court Justice Sonia Sotomayor has reported receiving nearly $1.2 million for her memoir about rising to the nation’s top court from a South Bronx housing project, the Associated Press said.
  • A hotly contested race for Alabama Supreme Court chief justice could be ahead in 2012, especially if Chief Justice Sue Bell Cobb does not seek re-election, according to a Mobile (Al.) Press-Register article.
  • “3 Tennessee bills set the stage for 2012 merit selection showdown,” following adjournment of the Tennessee legislature, reported the Gavel to Gavel blog, a publication of the National Center for State Courts.
  • A federal administrative law judge who approved an unusually high number of disability awards was placed on leave by the Social Security Administration, according to a Wall Street Journal article.
  • “The Latin American Coalition, the Muslim American Society of Charlotte and the Vietnamese Association of Charlotte have written a 28-page complaint letter dated May 16 to the U.S. Department of Justice asking for an investigation” of whether North Carolina and the Administrative Office of the Courts violate civil rights law, according to an Associated Press report. The groups are concerned about equal access to courts for people who do not speak or understand English well.
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