Gavel Grab

A veteran Illinois Supreme Court justice has been targeted for removal in a retention (up-or-down) election this year by a deep-pocketed group representing business interests.

The effort to deny re-election to Justice Thomas Kilbride smacks of greater politicization of judicial elections, some observers say.

“Judicial races have become much more politicized in the last 10 or 15 years,”  Mike Lawrence, past director of the Paul Simon Public Policy Institute, was quoted by The Telegraph newspaper as saying.

“When the state Constitution was drafted, I don’t think anyone anticipated the level of politicization in the judicial elections that we have today.”

Justice Kilbride and a majority of the court issued a highly controversial decision last spring. They found unconstitutional a law that limited the sums that doctors and hospitals could be sued for.

Now the Illinois Civil Justice League has talked about raising $1.2 million to $1.4 million to deny re-election to Justice Kilbride. The group works to set a more favorable legal climate for companies. Read more

An editorial in the Toledo Blade outright ridicules the Michigan Supreme Court for its conduct, and asks whether the time is right to seek reforms in the way voters elect their high court justices.

The editorial lays partial blame on “the bizarre system by which Michigan justices are nominated by the two major political parties.” It says partisan politics is polarized, the justices are ideological, and in “a disgraceful spectacle, shadowy groups have spent millions of dollars on TV ads attacking the reputation of Supreme Court incumbents and challengers.”

What to do? The editorial, entitled “Order in the court,” continues:

“Michigan voters will be asked in November whether they want to call a constitutional convention, which could be one way to fix the Supreme Court mess. Another would be to craft a constitutional amendment that changes the way the state’s top judges are selected.

“In any event, Michigan’s highest court needs to stop looking like a judicial version of The Gong Show meets Let’s Make a Deal.” Read more

Retired Supreme Court Justice Sandra Day O’Connor today commended Iowa’s merit-based selection method for selecting judges as “an excellent system” that ensures fair and impartial courts.

“Don’t throw out the system just because it’s under stress,” Justice O’Connor told a forum sponsored by the Iowa State Bar Association, according to a Des Moines Register article. “I know you won’t do it. The bottom line is, Iowa has an excellent system in place for selecting judges.”

Iowa has grabbed national attention as some conservatives mount a campaign to oust three state Supreme Court justices in retention elections this fall. The conservative activists are unhappy with the court’s ruling to permit same-sex marriages in Iowa.

Justice O’Connor also said Iowa’s system could become more transparent. She alluded to the way Arizona, her home state, works to get information out to voters in advance of their going to the polls. Read more

When the Senate is on recess and there’s no real news about the large backlog of federal judicial nominations, you can always dig for historical comparisons.

The Associated Press did exactly that in an article reporting that President Obama has placed fewer men and women on the federal bench than any president since Richard Nixon, at a corresponding point in Nixon’s first term four decades ago.

Especially since the Los Angeles Times recently reported that almost one of eight federal judgeships is vacant (see Gavel Grab), the nominations backlog and partisan politics in the Senate have gotten extensive attention–for a period when Congress is on vacation.

The historical context can be valuable, however, for spotlighting the current situation, when “fewer than half of Obama’s nominees have been confirmed and 102 out of 854 judgeships are vacant,” as the AP reports.

Gavel Grab has frequently visited the topic of who’s deserving of blame–Senate Republicans, for blocking certain judicial nominees, or Obama, for a slower pace of announcing judicial nominations and, some say, failing to press hard enough for judicial confirmations.

Under Democratic control, the Senate has confirmed 40 of Obama’s judges. Nixon, a Republican, had won confirmation of 33 at a corresponding point in his first term, from a Senate controlled by Democrats. Read more

Have the folks in Indianapolis, Indiana come up with a new way for lawyers to give to judicial campaigns–while removing a possible appearance of impropriety from doing so?

An Indianapolis Star article reports that the city bar association is forming a new political action committee. The PAC will receive voluntary donations from lawyers, then turn around and give it out equally to candidates from either party who make the general election ballot for Circuit and Superior courts. The plan, which the newspaper calls a “blind trust” approach, will take effect in 2012.

Christine Hickey, Indianapolis Bar Association president, explained: “For the bar association, the issue is very simple: It’s about public perception and the appearance of impropriety, and also allowing our attorneys to support the judiciary without being open to attack.”

A task force of lawyers began looking for a new solution following the U.S. Supreme Court’s Caperton v. Massey decision. That decision found that large judicial campaign expenditures could create an unacceptable potential for bias.

Charles Hall of the Justice at Stake Campaign called the PAC idea “unique” and “intriguing.” He added, “I have not heard of anything like this elsewhere.” If enough lawyers send their donations to the PAC and not individual candidates for judgeship, it could bring progress in curbing perceptions of judicial favoritism, he said. Read more

Readers around the country continue to learn about the first-ever analysis of judicial election spending over the past decade, co-authored by the Justice at Stake Campaign, from articles in both general and law-focused publications.

The report is entitled “The New Politics of Judicial Elections 2000-2009: Decade of Change.” The other co-authors were the Brennan Center for Justice, the National Institute on Money in State Politics and Hofstra University law professor James Sample.

The National Law Journal has published an opinion piece drawing on the report, and written by Susan Liss and Adam Skaggs of the Brennan Center. Their commentary is entitled, “Is justice for sale?” A highlighted theme: “This year, as special interests mobilize, they are targeting previously sedate judicial retention elections in addition to contested races.”

The same “Is Justice for Sale” headline accompanies an article in The Florida Bar News. Here, however, a sub-headline resolutely answers, “Fortunately, not in the State of Florida,” and the article draws on data from the “New Politics” report for its good-news story. It also quotes Charlie Hall, communications director for Justice at Stake, as saying:

“Florida is very fortunate. Florida was hit by hurricanes, but not by the tidal wave of special interests that are flooding so many judicial elections in America…. Read more

A national conservative organization, American Family Association, says it already has pumped “a couple of hundred thousand dollars” into a campaign to oust three Iowa Supreme Court justices in retention elections.

The disclosure is another sign of the heated controversy playing out in Iowa  over the high court’s decision legalizing same-sex marriage, and the extent to which it is capturing national attention (see Gavel Grab).

Bryan Fischer of American Family Association made the disclosure in a radio interview 0f Bob Vander Plaats, the Iowa Independent reported. Vander Plaats is a former Republican candidate for Iowa governor who is now leading a campaign for the justices’ removal.

Here is an excerpt of Fischer’s remarks, as reported by Right Wing Watch:

“Through our political arm, AFA Action, we are heavily invested in this campaign. I want our listeners to know that we are involved in this campaign, we want to see this thing go forward, we have put a couple of hundred thousand dollars into this campaign to stand for natural marriage and Bob Vander Plaats leading the cause there in Iowa.” Read more

The Republican candidate for governor in Kansas, U.S. Sen. Sam Brownback, has questioned whether the state’s merit-based process for selecting Supreme Court justices is constitutional.

Brownback doesn’t plan to propose changes to the process, which recently was challenged in a federal court lawsuit (see Gavel Grab). His spokeswoman said, according to an Associated Press article, that Brownback is “going to continue to talk with those who are interested in making a change.”

Some of his conservative fellow Republicans consider judicial selection to be an important issue. They have voiced unhappiness with rulings by the court on abortion and education funding. Because of the way justices are picked, the high court falls short in being accountable to voters, they contend.

The Democratic candidate for governor is state Sen. Tom Holland. He doesn’t believe the selection process needs reforming. Along with some others, who include Republican moderates, Holland thinks the system insulates the court from partisan politics.

In Kansas, a nominating commission recommends candidates for selection by the governor. The commission is made up of five lawyer members and four non-lawyers. James Bopp, an attorney who filed the lawsuit challenging this system, said it denies ordinary Kansas voters an equal voice in selecting Supreme Court justices.

A subsequent AP article suggests that while Brownback is silent in his “Road Map for Kansas” about abortion and gay rights, his remarks about the state Supreme Court “hint at his conservative leanings.”

Intense politicking for the Ohio Supreme Court has fueled a number of ethics complaints against candidates (see Gavel Grab). But now a state disciplinary panel has dismissed two of the complaints, both brought by Ohio Democrats.

The panel dismissed a complaint that Justice Maureen O’Connor (photo at left), seeking the position of chief justice, endorsed fellow Justice Judith Lanzinger (photo at right), according to a Toledo Blade article.

Earlier a different panel threw out a similar complaint accusing Justice Lanzinger of violating the rule against political endorsements by judges.

In their remarks that were at issue, the justices stopped short of making formal endorsements, but they spoke in a supportive fashion of each other, the newspaper said.

Justice O’Connor is running against Chief Justice Eric Brown, a Democrat. He was accused by the Ohio GOP of personally soliciting money for his campaign, in alleged violation of a judicial rule prohibiting such conduct. That complaint still is pending.