Archive for March, 2012
A GOP advertisement online altered audio from the Supreme Court’s health care law arguments this week in portraying the statute as hard to defend. The editing of the audio came under sharp criticism from two veteran attorneys.
In the ad, U.S. Solicitor General Donald Verrilli, who defended the Obama administration’s plan, is heard stuttering, pausing, coughing, and stopping for two drinks of water in opening his defense of the law.
A Republican National Committee transcript of his delivery, circulated with the web site ad, states: “For more than 80 percent of Americans, the ah insurance system does provide effective access [pause]. Excuse me. Ah [cough] it ah be-be because the ah the ah the [pause]. Excuse me.”
According to a Bloomberg article, it actually went this way: “For more than 80 percent of Americans, the, ah, insurance system does provide effective access,” Verrilli said. He paused briefly and said, “Excuse me.” He quickly continued, “But for more than 40 million who do not have access to health insurance, either through their employer or through government programs such as Medicare or Medicaid, the system does not work.”
The Republican ad says about “Obamacare,” that “It’s a tough sell.”
According to Bloomberg, “The ad marks a blurring of the line between the law and politics, in which the nation’s highest court — and the justices and lawyers who decide and argue cases — are becoming fodder for Republicans’ and Democrats’ arguments over the validity of the president’s signature domestic legislative achievement.”
Nevada District Judge Brent Adams has recused himself from a case for the second time after concerns that campaign money he received from one of the parties created an “appearance of impropriety.” The case involves the AMERCO corporation, and Adams previously recused himself from another concerning the Whittemore Peterson Institute for Neuro-Immune Disease. Adams took $10,400 from Harvey Whittemore and associates during his 2008 campaign, according to the Reno Gazette Journal.
Judge Jerry Polaha will replace Adams on the case, but critics have called for Polaha to step down because he also received campaign funds from Whittemore. Washoe District Court Chief Judge David Hardy said he is “very concerned” about these recent public links between judges and campaign money, leading to recusals.
“We elect our judges in Nevada,” Hardy said. “Campaign contributions are an important part of the electoral process. The Nevada Supreme Court has held, and the Code of Judicial Conduct confirms, that the mere receipt of a campaign contribution is not a disqualifying event.”
As the Supreme Court heard oral arguments over the federal health care case this week, some observers began framing an “activist” critique to apply to the justices in event of an adverse outcome. And that, a Washington Post editorial warned, is a mistake.
“If the justices strike down the individual mandate to purchase health insurance,” the editorial portrayed some liberals as reasoning this week, then these justices “will prove themselves partisan, activist and, essentially, intellectually corrupt.”
While it is disappointing when justices on either ideological side seem predictable, the editorial said, the central constitutional issues in the case are not easily resolved:
“[W]e … think there’s a kind of cynicism, or at least intellectual laziness, in asserting that this is an easy or obvious call — that no justice could possibly strike down the mandate out of honest, reasoned conviction.”
The court is weighing the constitutionality of the Obama administration’s signature domestic accomplishment. The editorial, after summing up some of the most contentious legal issues, found “the government’s argument is strong enough to carry the day. But it is not, as we said, a slam-dunk. We wouldn’t assume anyone who disagrees is a hack.”
The editorial was entitled, “Civics lessons from the Supreme Court.”
In these other dispatches about fair and impartial courts:
- The Kansas House narrowly rejected a proposed constitutional amendment to strip state courts of their jurisdiction on funding issues, reports Gavel to Gavel, the blog of the National Center for State Courts, a JAS partner group. HCR 5006 did not receive the 2/3rds of votes necessary to be finalized as an amendment.
- Nate Silver, in his New York Times blog FiveThirtyEight, says that by using the Martin-Quinn Scores statistical method for analyzing the Supreme Court, the current court appears to be the most conservative since the 1930s. Under the Martin-Quinn method, justices receive a score on a one-dimensional scale that runs from liberal to conservative. The scores can change over time with voting behavior.
- According to a Youngstown Vindicator commentary, there is discussion of consolidating lower courts in Mahoning County. The county bar association hired the National Center for State Courts to study the feasibility of consolidation.
A compromise plan to reform the way judges are held accountable in Tennessee won unanimous, 30-0 approval in the state Senate.
The compromise plan would replace the Court of the Judiciary, as the state’s judicial discipline commission is known, with a “judicial board of conduct.” The legislation seeks to increase legislative oversight of the judicial branch, according to a (Nashville) Tennesseean article. Tennessee’s judges had a voice in shaping the compromise.
Tennessee’s House has not yet voted on companion legislation. You can learn about other facets of the legislation, and its background, from Gavel Grab.
The Washington Post, in a front-page article on Friday, spotlights surging spending by outside special interest groups in judicial elections nationwide, and prominently cites Justice at Stake and JAS partner groups.
The article is headlined, “Super PACs, donors turn sights on judicial branch.” The Post examines a drive to oust three state Supreme Court justices in Florida retention elections this year, and their beginning to campaign in response, in identifying a larger trend:
“While deep-pocketed super PACs and ultra-wealthy donors have attracted plenty of attention in the presidential contest this year, they are also making waves further down the political food chain. The mere possibility that a rich benefactor or interest group with endless amounts of money could swoop in, write massive checks and remake an entire court for ideological reasons has prompted judges here in Florida and elsewhere to prepare for battles they never expected to fight.”
Judicial races are attractive to donors because of their relative obscurity and in many cases, a lack of public scrutiny, according to the article, and in a new trend, “The universe of big donors has grown smaller and more concentrated.”
“It’s the single best investment in American politics,” said Charles Hall, spokesman for Justice at Stake. “A few big spenders can really have an outsize effect.”
Explained Roy Schotland, a Georgetown University law professor and expert on judicial elections, “Outside forces are becoming a bigger deal.”He added, “We’re seeing more takeover of the races from the outside.”
Competing proposals to reform recusal rules for state Supreme Court justices are surfacing in West Virginia, where conflict of interest concerns raised by spending to influence court elections were highlighted by the U.S. Supreme Court in a 2009 decision.
According to a (Charleston, W.Va.) Daily Mail article, Chief Justice Menis Ketchum said he is working on developing a recusal proposal. He said he favors giving an independent person or a group of people the authority to decide whether a justice should be taken off a case, when potential conflict of interest questions are raised.
Tish Chafin, a candidate seeking the Democratic nomination for one of two seats on the court, has announced a proposal whereby a justice who declines to step aside in such a case could be taken off the case by action of the other four justices and a specially appointed judge. Written decisions on all recusal motions would be required and would be made public.
To change the existing recusal rules, a vote by the full court would be required.
In 2009, the U.S. Supreme Court found in Caperton v. Massey that there was a risk of bias when a West Virginia justice voted on a case involving a coal company whose chief executive had spent millions to help the justice win election. Caperton moved the issue of recusal to the national stage.
Members of the Supreme Court are likely to gather behind closed doors on Friday and cast a secret, preliminary vote that will kick off perhaps three months of deliberations on the fate of President Obama’s federal health care law.
“The outcome will shape [Chief Justice John] Roberts’s own legacy, influence President Barack Obama’s re-election prospects and potentially deepen the partisan gulf that is already dividing the country,” a Bloomberg article said. The outcome will also focus attention on the high court, which has been ideologically split on some of its biggest rulings.
“Not since 2000, when the court resolved the Bush v. Gore dispute over Florida election returns that sealed George W. Bush’s election as president, has a Supreme Court case drawn so much attention,” stated an Associated Press report.
A decision could rest in the hands of two Republican-appointed justices, Anthony Kennedy and Chief Justice John Roberts (photo above). With fellow conservatives, they asked questions during oral arguments that were harshly skeptical of the constitutionality of a central provision of the law, requiring most Americans to carry health insurance or pay a penalty.
Some news reports about the oral arguments, however, noted past instances when a final opinion bore little resemblance to the tone of questions asked during oral arguments. “In any event, justices’ questions at arguments do not always foretell their positions,” the AP summed up.
In 2010, spending on campaigns for two Michigan Supreme Court seats led the nation’s judicial elections. This year, with three Supreme Court seats in contention, may bring the state’s most expensive judicial elections ever, a Michigan Radio report suggests.
And that big spending trend has significant costs, reporter Lester Graham says:
“Lots of campaign money is being spent to influence the election of Michigan Supreme Court justices. That makes people wonder how judges can be impartial. After all, some of the justices owe their position on the bench to people who have given them millions of dollars.”
“It isn’t just the appearance of impropriety, this money does have influence. Common sense tells you it does. I’ve been there,” former Supreme Court Justice Betty Weaver told Michigan Radio.
Graham mentions ideas discussed by reforms to protect fair and impartial courts. They include replacing judicial elections with appointment using non-partisan commissions, 24-hour campaign contribution disclosure requirements, and disclosure of all spending that benefits a judicial candidate.
The U.S. Senate recently confirmed Reno attorney Miranda Du as Nevada’s newest U.S. District Court judge, on a 59-39 vote. She becomes the first Asian Pacific American to serve on the state’s federal bench, reports the Nevada Appeal. Senate Majority Leader Harry Reid had recommended Du, saying her life and work proved “the American dream is alive and well.”
Du was born in Vietnam and moved to the U.S. as a child, eventually attending college in California and joining a law firm in Nevada. Du’s confirmation received bipartisan support, but some detractors such as Senator Chuck Grassley were concerned about her qualifications. Those who did support Du, such as Sen. Dean Heller, R-Nev., said she will make an “outstanding” judge.
Diversity on the bench remains a pressing concern in some other states. A Muncie (In.) Star Press editorial says that currently no women serve on the state’s Supreme Court. Gov. Mitch Daniels had an opportunity to “rectify that oversight last week,” the editorial contends. Daniels appointed Mark Massa to the seat vacated by retiring Chief Justice Randall Shepard, picking Massa over two other finalists.
The editorial says that Daniels should have appointed a woman, since she, or a minority, would have a “set of experiences no white male can ever have.” Those experiences can have a significant impact on a judge’s decisions. Women make up half of the population and the high court should reflect some gender diversity, it says.
A Chicago Defender commentary decries the “indefensible lack of diversity” on the U.S. District Court in Chicago. Judge William J. Hibbler passed away recently, and he was one of only three African Americans serving on the federal bench in Chicago, writes Judge Diane M. Shelley, chair of the Illinois Judicial Council. Chicago has a large African American population, and racial diversity on the federal bench has remained an “elusive goal.”
“Racial diversity is an important virtue to building a court that is both excellent and respected by the general population,” Judge Shelley writes. The interaction of diverse viewpoints can foster impartiality and better understanding. The editorial concludes by appealing to Sen. Dick Durbin, D-Ill., to recommend the appointment of qualified African American judges to the U.S. District Court and the Seventh Circuit Court of Appeals.
The U.S. Senate also confirmed attorney Susie Morgan this week to the Federal District Court in New Orleans. Morgan was nominated nearly ten months ago by President Obama, according to a NOLA.com article. A less controversial candidate than Du, she was confirmed by a vote of 96-1.