Archive for June, 2011
It was the Supreme Court’s decision voiding an Arizona public campaign financing provision that drew widespread attention this week. Less noticed was a Supreme Court action that left intact a challenged aspect of Connecticut’s public financing law.
The high court on Tuesday dismissed an appeal that challenged Connecticut requirements for third party candidates to qualify for public campaign funds, the Associated Press reported.
One day after declaring unconstitutional the Arizona provision, the court on Tuesday “signaled something just as significant: Not all forms of public financing will raise the ire of the justices,” a Washington Post article said.
“It gives some reason to hope that the Supreme Court is not on the war path to eliminate all forms of public financing,” said Tara Malloy, a lawyer with the Campaign Legal Center, a JAS partner on campaign reform issues.
Meanwhile, a federal judge in Florida struck down a provision in that state’s campaign law that mirrored the Arizona provision found unconstitutional by the Supreme Court, according to an Orlando Sentinel article. The Arizona provision for “trigger funds” allowed publicly funded candidates to get additional money when privately financed candidates or independent groups spent more. Read more
Exploding special-interest spending on judicial elections has contributed to the Wisconsin Supreme Court’s coming to resemble the state legislature for volatility, some experts say.
Both a partisan divide and the influence of special interest money are blamed for the shift in a Wisconsin State Journal article entitled “Justices split by politics, personality.” The article seeks to provide context for a recent court flare-up that left one justice accusing another of putting her in a chokehold (see Gavel Grab).
“Before big money, one of the big things people looked at was judicial temperament and qualifications,” said Jay Heck, executive director of Common Cause in Wisconsin. “Now it’s all ideologically driven.”
Wisconsin is a major judicial election battleground, ranking 11th among states for the more than $6.69 million raised by high-court candidates from 2000-2009. Read more
In these other dispatches about fair and impartial courts:
- End-of-term commentary and analysis about the Supreme Court continued, including Andrew Cohen’s “I Dissent: A Different Kind of Supreme Court Term Review,” in The Atlantic; and “Justice Kennedy is Most Often the Swing Voter This Term,” by Debra Cassens Weiss, in ABA Journal.
- An Associated Press report about a Senate Judiciary Committee hearing was headlined, “Senate Democrats fault Supreme Court for tilt toward business after term of mixed outcomes.”
- “Think when donating to a judge’s campaign,” declared the headline for a column in the Albany Times Union about a new judicial disqualification rule for New York’s court system.
- Director Mike McCabe of the Wisconsin Democracy Campaign, a JAS partner, wrote a commentary in the Janesville (Wisconsin) Gazette that criticized recent campaign finance law actions in the state legislature. “Defaming Wisconsin, desecrating democracy” was the column’s headline.
Alabama Chief Justice Sue Bell Cobb, announcing that she will resign effective Aug. 1, cited the soaring costs of a judicial campaign as one of her foremost reasons.
In a prepared statement, the state’s first female elected chief justice pointed to family reasons for resigning mid-term, mentioning her 87-year-old mother and 15-year-old daughter. She then turned to judicial campaigns:
“Another statewide race at this point in time would require me to raise millions of dollars while constantly endeavoring to appear and remain impartial and would require me to sacrifice precious time which I could be spending with my family.”
Justice Cobb made partisan and costly judicial elections in Alabama, which has the most expensive appellate court elections in the nation, a centerpiece of her statement. It incorporated a chart showing Alabama’s ranking, taken from a report about judicial election spending in the last decade and co-authored by Justice at Stake.
Citing a perception that campaign cash outweighs a candidate’s ability in determining judicial election winners, Justice Cobb labeled “one of my keenest disappointments” her lack of success in getting legislators to adopt reform. The judge elaborated:
“Republicans and Democrats alike refused to remove partisan labels on judicial races. Alabama appellate court judges should be selected either on merit and retained or rejected by a vote of all the people, or at least campaign without the added political emphasis of party labels. On this issue, I agree with the generalization penned by Author Jim Harrison, ‘We are at the mercy of political forces which are always self-serving and dead wrong.’ To do otherwise is to perpetuate the public perception that judges are selected more on campaign contributions than on ability.” Read more
The Sixth U.S. Circuit Court of Appeals, issuing the first appellate court review of President Obama’s health care reform, upheld the constitutionality of Congress mandating that most Americans buy health insurance.
An appointee of Democratic President Jimmy Carter and an appointee of Republican President George W. Bush voted together in the 2-1 ruling, with an appointee of Republican President Ronald Reagan in disagreement, according to a New York Times article.
It was the first time that a Republican appointee had voted to uphold the law’s constitutionality, USA Today reported. That jurist was Judge Jeffrey Sutton. He is “one of the most high-profile conservative judges nationwide” and clerked for Supreme Court Justice Antonin Scalia, the newspaper said.
In the wake of a Supreme Court ruling that struck down a public campaign financing provision in Arizona, states with similar laws are weighing their next steps.
North Carolina became the first state, in 2002, to provide full public financing for judicial campaigns. It has a provision like the “trigger funds” mechanism that was voided by the Supreme Court (see Gavel Grab).
Successes of North Carolina’s systems were spotlighted in a Greensboro News & Record blog: “Before public financing, a couple of chief justice candidates — Henry Frye and Bev Lake — each spent in the ballpark of $1 million in 2000. Now most statewide judicial candidates are taking public funding of around $250,000. Even better, there hasn’t been a flood of special-interest money barging into the picture, either.”
If North Carolina’s law is successfully challenged in court, or if the legislature moves the mechanism from existing law, there may be a “crippling effect” on public financing, the blog suggested.
A different view was offered by Damon Circosta, executive director of the N.C. Center for Voter Education, in a Burlington Times News report. “The public financing system will continue,” he said. “Just matching funds will not be available.”
Circosta, whose group is a JAS partner, told North Carolina News Network, “It won’t make a big difference either which way on who decides to opt-in to public financing and who does not,” He added, “I’m still thinking we’re going to see robust participation from candidates from all across the political spectrum – incumbents, challengers, men, women.” Read more
New York has formally adopted a new recusal rule aimed at keeping campaign cash out of the courtroom.
The rule automatically requires disqualification of judges from hearing cases where a party, lawyer or law firm donated at least $2,500 to their campaigns in the preceding two years (for background, see Gavel Grab).
A Thomson Reuters News & Insight article about the rule cited the Justice at Stake Campaign as its source for data that New York is one of 39 states that elect some judges. It also quoted Charles Hall, a Justice at Stake spokesman, about a modification that JAS sought in the proposed rule.
JAS and the Brennan Center for Justice had proposed adjusting the ethics rule to prevent any “judge shopping” that could occur if parties to a case attempt to game the system, by making a campaign contribution in order to disqualify a particular judge.
Under the rules adopted this week, a party who did not make a campaign contribution can waive the disqualification rule, effectively negating a campaign donor’s attempt to get a judge disqualified.
“The whole idea of a waiver is it allows somebody to decide if their rights have in fact been compromised,” Hall said. He said the provision “makes the rule sustainable.”
The Dane County (Wisconsin) Sheriff’s Office is one of two entities investigating an allegation that one state Supreme Court justice put another in a chokehold, but Sheriff Dave Mahoney said he would not oversee the probe.
Mahoney is a Democrat and supported challenger JoAnne Kloppenburg over Justice David Prosser in a state Supreme Court election this year, a Milwaukee Journal Sentinel article said. Justice Prosser, the election winner, is the subject of the allegation leveled by Justice Ann Walsh Bradley (see Gavel Grab). Mahoney also appeared in a campaign ad for Chief Justice Shirley Abrahamson, an ally of Justice Bradley’s, in 2009.
The altercation occurred June 13, the newspaper said, after Republican legislators insisted they had to get by June 14 a decision from the court on a challenge to Republican Gov. Scott Walker’s plan to end collective bargaining for most public workers. The court issued on June 14 a 4-3 ruling that reinstated the plan. Justice Prosser was in the majority, and Justice Walsh in the minority.
A TPM Muckraker article, meanwhile, questioned what might happened if the Wisconsin Supreme Court becomes the ultimate arbiter over the alleged incident.
State funding cutbacks have so squeezed some courts in Alabama that the presiding judge in Jefferson County has asked the Birmingham Bar Foundation to give money to help pay jurors.
“It’s a terrible, terrible, way to have to run the courts, but it’s better than the alternative,” Circuit Court Judge Scott Vowell said, according to a Birmingham News article. ”Part of that will be that the givers to the fund will have to remain anonymous to the judges.”
The foundation is the charitable arm of the Birmingham Bar Association. Judge Vowell said he first got a green light from the Alabama Judicial Inquiry Commission about raising money from private sources through the foundation.
In Minnesota, meanwhile, the prospect of a possible government shutdown had lawyers debating in court whether the state’s judicial system should get continued funding if other government offices close. Minnesota has been facing the possibility of a shutdown if a stalemate over the state budget is not resolved (see Gavel Grab).
Deputy Attorney General Nate Brennaman told a Ramsey County judge that it the courts were closed, it would imperil the constitutional right to a speedy trial, threaten people’s right to have lawyers and no longer ensure the protection of children from abuse and violence, according to an MPR News report, accompanied by audio of the hearing.
On behalf of four Republican senators, a lawyer argued that it would be unconstitutional to fund Minnesota’s courts without legislative authorization.
From judicial ethics to ideological pairings, the work and conduct of the Supreme Court get a lot of attention in a smorgasboard of news media articles and commentary following the end of the court’s term.
In one of the most intriguing pieces, Jeff Shesol brings a historic lens to simmering controversy over some of the extrajudicial activity of the court, in a New York Times commentary entitled “Should Justices Keep Their Opinions to Themselves?” He is author of “Supreme Power: Franklin Roosevelt vs. The Supreme Court.”
“Surely there is nothing new or unnatural about justices holding political views and seeking the company of others who share them,” Shesol writes. At the same time, “there are few, if any, precedents” for Justice Clarence Thomas’s and Justice Antonin Scalia’s involvement with fund-raising efforts by the conservative Koch brothers, he says. Shesol then zeroes in on public trust in the courts:
“The public’s faith in the rule of law depends, to no small degree, on the idea that judges try, as best they can, to maintain a judicial temperament — that they keep a certain distance from public and even private events that appear, in the truest sense of the word, partisan, and that they maintain an open mind.”
“It’s not that we need justices without political impulses; we need justices who can keep them in check.”
Shesol predicts that “proposals to curb the court,” and dealing with recusal or ethics codes, won’t happen. He explains: “As Justice Harlan Fiske Stone wrote in the 1930s, sternly rebuking some of his brethren, ‘the only check upon our own exercise of power is our own sense of self-restraint.’” Read more