Archive for October, 2011
Chief Justice Charles Daniels of the New Mexico Supreme Court declined to step aside from matters related to the bribery case against a trial judge.
“Unsupported attacks made on the integrity of judges are not only insufficient to require recusal, they prejudice the administration of justice by causing our citizens to have unjustified doubts about the fairness of their judicial system,” Justice Daniels wrote in an order, according to an Associated Press article.
District Judge Michael Murphy faces charges he funneled bribes for appointments to the judiciary by former Gov. Bill Richardson. The special prosecutor in the case, Matt Chandler, sought Justice Daniels’ recusal, saying his was among names mentioned in the pay-to-play scheme that has been alleged.
New Jersey Gov. Chris Christie, still seething over an adverse court ruling about judges’ benefits, is blasting the state judiciary as he promotes Republican candidates in upcoming legislative elections.
In the presence of more than 50 GOP incumbents and candidates, Christie slammed “elitist judges” allegedly coddled by Democrats, according to a (Newark) Star-Ledger article. “Let the people decide whether there should be two classes of public servants: 500,000 who pay their fare share, and 432 who don’t,” Christie said.
Superior Court Judge Feinberg recently found unconstitutional, when applied to judges, a state law requiring that public workers pay more for their health benefits and pensions (see Gavel Grab). Read more
A report on “The New Politics of Judicial Elections, 2009-2010” was posted online today, and it already has grabbed news media attention in The Washington Post.
The latest in a series of “New Politics” reports since 2000 documents an election cycle that poses some of the gravest threats yet to fair and impartial justice in America, according to the three legal reform groups that co-authored the report. The co-authors are Justice at Stake, the Brennan Center for Justice, and the National Institute on Money in State Politics.
The Post article highlighted the report’s finding that independent expenditures by special interest groups accounted for nearly 30 percent of the money spent on state judicial elections during the two-year period, far higher than four years earlier. “The authors argue that the pattern is a harbinger of the spending to come across the board next year” in the 2012 elections, the Post said.
Just 10 organizations dominated all judicial election spending, paying out a combined $15 million, the article said in reviewing the “New Politics” report’s findings.
“Too many judges owe their jobs to campaign money hidden from public view,” Bert Brandenburg, executive director of Justice at Stake, said in a statement. “Americans expect courts to be fair and impartial. They don’t want campaign cash to influence courtroom decisions.”
In a new Slate commentary, election law expert Rick Hasen argues that a single, “unnecessary” sentence by Justice Anthony M. Kennedy has led to ”the unraveling of campaign finance law.” Hasen’s article examines two landmark Supreme Court cases in which Justice at Stake filed briefs–Citizens United and Caperton v. Massey.
Here is the sentence from Justice Anthony Kennedy’s majority opinion in Citizens United that Hasen targets: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
Hasen asks the provocative question of whether a majority of the court, including Justice Kennedy, even believes the Citizens United sentence at issue, given an earlier ruling about third-party spending in judicial elections, in Caperton v. Massey. Hasen explains:
“The Citizens United decision is at odds with Kennedy’s opinion from just six months earlier in Caperton v. Massey, recognizing that a $3 million contribution to an independent group supporting the election of a West Virginia supreme court justice required that the justice recuse himself from a case involving the independent spender supporting his candidacy. The Caperton Court pointed to the ‘disproportionate’ influence of that spending on the race and at least an appearance of impropriety.”
Justice at Stake filed an amicus brief in Caperton and hailed the Supreme Court’s ultimate ruling. It filed an amicus brief in Citizens United, and when a decision was issued, warned that it threatened a cash deluge from corporate treasuries in judicial elections — and a grave threat to America’s courts.
While JAS focused on judicial elections, the initial impact of Citizens United is being felt at the federal level. Hasen said Justice Kennedy’s opinion has spawned federal “Super PACs,” the independent-expenditure committees that can receive contributions of unlimited size. Super PACs are likely to replace political parties “as a conduit for large, often secret contributions” in this election cycle, Hasen wrote.
Hasen operates Election Law blog.
Critics will soon amplify their calls for Supreme Court Justices Clarence Thomas and Elena Kagan to recuse themselves from considering a challenge to the constitutionality of President Obama’s signature health care law.
An International Business Times article makes that prediction, given that federal government attorneys, and lawyers for states challenging the health care reform law, have tried to speed up the timetable for the court to take up the contentious issue.
The article recaps arguments made critics of the justices, which have been mentioned in earlier Gavel Grab posts. Justice Kagan’s critics contend her former role as U.S. solicitor general poses a potential conflict of interest, and they suggest she may have helped furnish litigation strategy to defend the law. Justice Thomas’s critics take aim at acceptance by his wife, Virginia Thomas, of once-undisclosed income from groups opposing the law.
Some analysts see partisan efforts driving the calls for recusal, as activists seek to knock out a justice likely to vote against their interests. But Supreme Court ethics questions Read more
In these other dispatches about fair and impartial courts:
- “State budget cuts clog criminal justice system,” declared a headline for an Associated Press article that documented the severe impact of state court budget cuts around the nation.
- A legal clinic at Arizona State University was named after retired Arizona Chief Justice Ruth McGregor, a Justice at Stake board of directors member. The clinic will help victims of domestic violence, an AP article said.
- Clark Neily of the Institute for Justice and Ed Whelan, who blogs for the National Review, discuss “Judicial Engagement vs. Judicial Activism” in a new YouTube video. You can learn more about some conservatives’ interest in “judicial engagement” from Gavel Grab.
Rebecca Love Kourlis rolls out her new book, “Rebuilding Justice,” to a national audience with a take-you-there column in Huffington Post:
“The civil justice system is in jeopardy. It is overloaded, bogged down, politicized and inaccessible. And — it is now woefully underfunded. I have written a new book with co-author Dirk Olin, called Rebuilding Justice: Civil Courts in Jeopardy and Why You Should Care, that explores those problems and proposes solutions.”
Love Kourlis is executive director of the Institute for the Advancement of the American Legal System, a JAS partner group. She earlier gave Gavel Grab readers an early glimpse of her book, and more recently was the subject of a PBS interview about it.
In Huffington Post, Love Kourlis sums up the book’s “call to action” this way:
“[L]egislatures must fund courts; judges and lawyers must streamline the process; and voters must be aware of the danger of politics in the courtroom and choose systems that keep politics as far out of the mix as possible. Together, we must ‘Rebuild Justice.’”
The Alliance for Justice (AFJ) weighs in on continuing calls to implement a Code of Conduct to the U.S. Supreme Court in a Huffington Post article. Introducing a new video, AFJ President Nan Aron says the public’s confidence in the Court is greatly reduced by the absence of an ethics code that applies to all other federal judges.
Aron argues that the general public must perceive judges as impartial arbiters of the law, rather than partisan agenda-setters, in order for the judiciary to function effectively:
“Everyone who walks into a courtroom needs to know they will get a fair hearing before a judge who has not pre-judged their case as part of a political agenda. …As a country rooted in the rule of law, we simply can’t afford to have Supreme Court justices who feel unconstrained by the same formal ethical standards that bind all other federal judges. The code prohibits participation in political activities. It bans serving as the keynoter at fundraising events, no matter how seemingly benign. It instructs judges not to do anything that creates even the ‘appearance of impropriety.’ ”
A new Alliance for Justice short film, A Question of Integrity: Politics, Ethics, and the Supreme Court,
provides examples of questionable ethical conduct by the Justices. Among these are Justice Thomas’ and Scalia’s trips to a Federalist Society conference hosted by the Koch brothers and keynote speeches by Justice Alito at American Spectator magazine and Intercollegiate Studies Institute fundraisers.
In these and other dispatches about fair and impartial courts:
- A Star-Ledger Editorial disagrees with New Jersey Governor Christie’s proposing a constitutional amendment to increase judges’ contribution for pension and health benefits.
- Cleo Elaine Powell has become the first African-American woman on the Virginia Supreme Court, reports the Richmond Times-Dispatch.
- Citing the Washington state Constitution, King County Judge Palmer Robinson restored Bainbridge Municipal Court Judge Kate Carruthers’ pay, which the city had cut for budget reasons, writes Kitsap Sun.
- The Ninth U.S. Circuit Court of Appeals kept videos from last year’s Proposition 8 trial on same-sex marriage under seal, reports the San Francisco Chronicle.
A prominent federal appeals court judge, who beat back allegations that he acted unethically in President Bush’s Justice Department, accepted more than $3.2 million in free legal services from a firm that now practices before his court.
Ninth U.S. Circuit Court of Appeals Judge Jay S. Bybee has stepped aside from participating in most cases where attorneys from the Los Angeles-based firm, Latham & Watkins, represented parties in a case, a Los Angeles Times article said. The value of the legal services provided Judge Bybee surfaced in his financial disclosure reports and first was made public by The National Law Journal.
Bybee is one of two former Bush administration lawyers who had a role in drafting the legal policies that permitted harsh interrogation of terror detainees. The Justice Department issued a report last year (see Gavel Grab) concluding the two lawyers had “exercised poor judgment,” but it did not go so far as to find they had engaged in “professional misconduct” and should be disciplined.
Latham & Watkins’ Maureen Mahoney, who helped defend Bybee’s work on the so-called “torture memos,” told National Law Journal that “Judge Bybee has advised us that he will continue to recuse himself from Latham matters for some time.” Read more