Archive for January, 2012
New Jersey Republican Gov. Chris Christie, who nominated the first openly gay justice to serve on the state Supreme Court, made an unusual promise when he said recently the nominee would recuse himself from ruling on same-sex marriage issues.
Christie said Paul Harris, a Republican mayor, has advocated for same-sex marriage, according to a Bloomberg article. “If confirmed to the court, he would recuse himself from that matter because he did not want there to be the appearance of bias on his part on that issue,” Christie told reporters. “My perspective on that issue was to put it aside because he’s not going to rule on that.”
Same-sex marriage is a hot issue in New Jersey. Christie has proposed a referendum on it, which has sparked controversy. He also has gotten some criticism for his nomination of Harris.
A (Newark) Star-Ledger commentary by Paul Mulshine noted that Harris had sent legislators an e-mail in 2009 urging a vote for same-sex marriage and, according to Mulshine, writing “favorably of one of the most activist of the court’s decisions.”
Mulshine drew an analogy between Harris’ nomination and President George W. Bush’s U.S. Supreme Court nomination of Harriet Miers; Bush was assailed by some critics as putting diversity on the court before qualification. Miers’ nomination ultimately was withdrawn.
A Kansas City Star article has focused on two judges who gave money to an anti-abortion political committee, after the judges had heard disputes on abortion-related matters. The practice is not barred in Kansas, yet the article quoted some observers as saying it deserves scrutiny.
“Judges are held to the highest conduct standards, and they should be,” said Adam Skaggs, senior counsel at the Brennan Center for Justice, a JAS partner group. “The best practice is going to be to avoid contributing to political organizations because of the inevitable appearance of partiality that those kinds of donations create.”
Kansas Sen. John Vratil, a Republican, said he’d like to examine the Kansas rule for political contributions by judges. “It can’t be good for the judiciary because it reflects on their impartiality,” he said.
Each of the judges mentioned in the article gave $100 to the Kansans for Life PAC in 2011. One judge issued a temporary order in an abortion provider case in January 2011, and the other was involved in the mid-2000s in a long-running legal dispute between an abortion provider — who was shot to death in 2009 — and a former Kansas attorney general. The judges were elected to their seats.
The American Bar Association’s Model Code of Judicial Conduct forbids contributions by judges to political organizations. Kansas hasn’t adopted that particular code provision.
In the wake of severe court funding cuts, California’s Assembly has voted to transfer to local trial courts key budget decisions that are currently made by the state Judicial Council, a panel that oversees the courts.
The Judicial Council said the bill, which will be considered by the Senate next, represented an “inappropriate intrusion into the fundamental governance of the judicial branch,” a Los Angeles Times article reported.
If the bill becomes law, local trial courts would get authority to decide how to spend their share of funding to pay for court operations. Its sponsor, Democrat Charles Calderon, said some courtrooms were forced to close due to budget cuts set by the Judicial Council, at the same time it diverted millions to an over-budget computer modernization program.
Democrat Mike Feuer branded the bill a “distraction” from the actual problem of finding adequate money to keep courts operating. ”We’re on the verge of a constitutional crisis in our state,” Feuer said. “That crisis is upon us because our courts are so severely underfunded.”
President Obama’s proposal for new Senate rules to guarantee up-or-down votes on on judicial nominees in 90 days won backing from an editorial in the Fort Worth Star-Telegram.
“Obama’s proposal for Senate votes on judicial nominees deserves bipartisan approval,” declared the headline. The editorial pointed to partisan brawling by both political parties that has stalled or blocked judicial confirmations, and an unusually high level of vacancies:
“Unnecessary delays only add to backlogs. There are 83 federal judicial vacancies, 32 of them on courts where the Administrative Office of the U.S. Courts has declared ‘judicial emergencies’ because of the caseloads.”
The editorial also noted arguments made by Sen. John Cornyn, R-Texas, during George W. Bush’s presidency against filibusters and in favor of every nominee getting an up-or-down vote. But, the editorial said, Cornyn “hasn’t been so consistent or magnanimous during the Obama years.”
In the West Virginia Record, an article quoted law professor Carl Tobias of the University of Richmond as calling Obama’s proposal a “fine idea” but doubting the Senate would adopt it soon.
In these other dispatches about fair and impartial courts:
- Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law, told an audience at Brigham Young University that the Supreme Court fails extensively to communicate to the public it serves, according to a Blog of Legal Times post.
- A proposed constitutional amendment advancing in Hawaii’s legislature would reduce the number of names sent to a governor by the judicial nominating commission for seats on appellate and circuit courts, to three names, down from “not less than four, and not more than six” names, according to the Gavel to Gavel blog of the National Center for State Courts.
- A Christian Science Monitor editorial was entitled, “Obama, like Roberts, seeks harmony in Washington: President Obama cites the military as a model for politics, similar to the aim of Chief Justice John Roberts for consensus on the Supreme Court. Why are both goals not working?”
- New Mexico state Sen. Sander Rue, a Republican, has proposed a constitutional amendment that would require public disclosure of judicial misconduct complaints against state judges, KOB.com reported.
- A Jackson (Mich.) Citizen Patriot editorial remarked approvingly on the state Supreme Court’s removal from the bench of a district court judge, James Justin, for judicial misconduct.
Shrinking state budgets and funding cuts are causing not only delays in how state courts deliver justice (see Gavel Grab), they’re also affecting the ability of low-income people to get needed legal help.
The Missouri Supreme Court heard oral arguments last month in a case involving the collision of state fiscal restraints and a poor defendant’s right to a lawyer. Jared Blacksher (at center, in photo), accused of theft, requested representation from the Missouri Public Defender’s office. He was denied it because the area office had reached a maximum caseload for that month. A judge ordered the office to represent Blacksher anyway.
A St. Louis Public Radio report discusses the underlying issues in the case, and a Wilkes-Barre (Pa.) Times Leader article mentions the case in a national context. “Claiming they are underfunded and overworked, a growing number of public defenders throughout the nation are challenging the government entities that control their purse strings by refusing to take new cases,” the article explains. In the New York Times, an older article about the Blacksher case was headlined, “Budget woes hit defense lawyers for the indigent.”
On the civil assistance side, Congress voted last year to slash federal dollars for civil legal assistance to poor people by about 14 percent, from $404.2 million to $348 million, according to a Wall Street Journal blog report. Read more
In these other dispatches about fair and impartial courts:
- The Indiana Supreme Court approved a pilot project for delayed webcasting of certain trial court proceedings in Lake County, according to an Indianapolis Star article and a state Supreme Court press release.
- Circuit Judge Russell E. Steele responded to an impeachment bid in the Missouri state House by blasting “an unprecedented and extraordinary political attack on a member of the judiciary” that he said ignores established process for considering complaints against judges, ConnectTriStates.com reported.
- “Democrats win Va. judicial standoff,” reported a Washington Post article about the latest developments in the state’s General Assembly.
- A Philadelphia Inquirer editorial about New Jersey Gov. Chris Christie’s latest state Supreme Court appointments was headlined, “Nod to diversity now doesn’t make up for past.”
A New York Times editorial strongly praises a robust new Tennessee rule governing recusal of judges and suggests the model deserves emulation.
The new Code of Judicial Conduct prohibits judges from hearing cases involving campaign supporters in which “the judge’s impartiality might reasonably be questioned.” Justice at Stake has applauded the Tennessee Supreme Court “for taking this important step forward” (see Gavel Grab).
“With rising special-interest spending in state judicial elections, there is an urgent need to protect judicial integrity from the flood of campaign cash,” the Times editorializes.
In 2009, the Supreme Court in Caperton v. Massey “recognized the potential threat to public trust in the justice system posed by outsized campaign spending in judicial elections,” the editorial says. Yet few of the 38 states where top judges are elected have adopted more rigorous recusal rules, it adds. The editorial sums up:
“If special interests knew their campaign spending would be likely to trigger recusal, they might not try as hard to buy up judges.
A faction of New Hampshire state legislators is “waging what is clearly an anti-judicial vendetta” based on disagreement with a handful of judicial rulings, says a Nashua Telegraph editorial that blasts the legislators’ proposals.
The editorial laments as “ludicrous” a number of bills before the state House, including one to prohibit judicial review of legislation (see Gavel Grab) and another to require the state’s Chief Justice to get legislative approval of all court rules in New Hampshire.
The nation’s Founding Fathers thought the separation of powers among co-equal branches of government was a good idea, the editorial notes. “So, why is it apparently so difficult a principle for some elements of the New Hampshire House of Representatives to comprehend?” The editorial concludes:
“These two proposed constitutional amendments are representative of other legislative proposals by a Statehouse faction waging what is clearly an anti-judicial vendetta no doubt predicated on a handful of rulings with which it disagrees.
“The state constitution should not be trifled with. It is not an outlet to vent piques. These proposed amendments are nothing more than petty, destructive and juvenile retribution. Responsible legislators will reject them as such.”
With vacant federal judgeships near a record high, it is time to eliminate filibusters and speed up the often politically paralyzed confirmation process for judges and executive branch nominees, a New York Times editorial urged.
The newspaper’s editorial was entitled, “Filibustering nominees must end.” It endorsed a proposal that President Barack Obama made in his State of the Union address, for new Senate rules to guarantee up-or-down votes on on judicial and executive-branch nominees in 90 days.
The editorial board acknowledged it came reluctantly to “a major change of position for us.” It explained, “The filibuster has sometimes been the only way to deny life terms on the federal bench to extremist or unqualified judges. But the paralysis has become so dire that we see no other solution.”
“We know it is risky,” the editorial said. It concluded:
“But the nation votes for a president, who needs to be able to appoint top officials and judges. The Senate needs to decide whether to give its consent or not. We can only hope that the president and the Senate will do that job responsibly, especially when both are controlled by the same party. Voters could then watch and reach their own judgments. And with fewer vacancies, government and the judiciary could do the nation’s work.”
To learn more about Obama’s proposal and reaction to it, see Gavel Grab.