Gavel Grab

Obama Administration Supports Texas Affirmative Action Policy

On Monday, the Obama administration submitted a brief by Solicitor General Donald B. Verrilli Jr. to the U.S. Supreme Court urging the justices to uphold the University of Texas’ use of race in its admission policies.

According to an Associated Press article, the Justice Department stated that a diverse college population was in the university’s, as well as the government’s, best interests. “The armed services and numerous federal agencies have concluded that well-qualified and diverse graduates are crucial to the fulfillment of their missions,” Verrilli said in the brief.

In October, the Supreme Court will hear the case of Abigail Fisher, a white UT applicant who sued the university on the basis that she was the victim of unconstitutional racial discrimination. This will be one of the most divisive cases on the Court’s docket this fall. Only eight justices will hear it, since Justice Elena Kagan has recused herself, citing her ties to the issue while working as solicitor general.

The case has come to the high court in an unusual manner, since there has been no appreciable disagreement among the federal appellate courts on how to apply Supreme Court precedent on affirmative action, according to a Chronicle of Higher Education article.

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Tuesday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • Only 40 percent of Americans know that nine justices sit on the United States Supreme Court, according to a recent CBS/Vanity Fair poll. A Politico article says that 35 percent of those polled thought that the Supreme Court has twelve justices, and 11 percent said they did not know.
  • Arizona’s Superior Court in Maricopa County released a YouTube video describing the state’s merit selection method for choosing judges. The video contains footage from interviews with Supreme Court Justice Sandra Day O’Connor, and others involved in the judicial branch.
  • A Detroit Free Press article reports that three judges seeking re-election or higher judicial office received “not qualified” ratings from the Detroit Metropolitan Bar Association. This is unusual since sitting judges usually expect a “well qualified” our “outstanding” rating if they’re effective on the bench, the article says.
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Updates from Wisconsin

With just two months until Wisconsin’s Supreme Court election, Chief Justice Shirley Abrahamson holds a big fund-raising edge over challenger Randy Koschnick, according to news reports.

According to the Daily Cardinal, Abrahamson raised over $800,000 by the end of 2008, while her Koschnick, a district judge, had raised $14,000. Koschnick said in news reports that he has raised closer to $50,000.

In a potentially more significant development, Wisconsin Manufacturers & Commerce group, along with two other groups that advertised heavily in the 2007 and 2008 campaigns,   announced that it will not advertise on behalf of Koschnick. According to the Milwaukee Journal Sentinel’s “All Politics” blog. WMC spent $1.7 in ads favoring Michael Gableman, who unseated then-Justice Louis    Butler  last spring, and $2.2 million the year before for the victorious Annette Ziegler.

In an interview with the Associated Press, Jim Haney, president of WMC, said the group would be very “passive” in this year’s election:

In an interview, Haney said WMC’s board of directors made the decision to play only a “passive role” after meeting with both candidates. He said the group’s only involvement in the race will be to share both campaigns’ literature with WMC’s members.

“Everybody was aware that we were very high-profile in the earlier races and whether that influenced their thinking, maybe that made them nervous or uncomfortable, I don’t know,” he said. “But collectively, they moved rather quickly to decide we’ll just play this information dissemination role this time.”

In an interview, Koschnick acknowledged that WMC’s decision was a setback for his campaign.  However, he found a silver lining:

“I’m only going to be able to control my own campaign,” Koschnick added. “I’m doing my best to get the Read more

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Op-Ed: Michigan Court Needs Reform

Peter Dunlap, past president of Michigan Defense Trial Counsel, wrote  a Detroit Free Press op-ed that says “Michigan’s system of nominating candidates for the nonpartisan position of Supreme Court Justice is in desperate need of review.”

Dunlap feels that the high court’s frequent 4-3 decisions have created a public perception that judges on both sides are putting party values ahead of the law. Dunlap’s article quotes a lower court judge about the perceived partisanship:

In an Aug. 11, 2007, article, the Lansing State Journal reported that Judge William Whitbeck of the Michigan Court of Appeals “worries the public will increasingly see the Michigan Supreme Court as being driven by politics, not law, because the court has issued so many 4-3 decisions.

Dunlap cites several possible fixes, including adopting the Missouri Plan, of appointing judges through a nonpartisan commission and subjecting them to periodic retention elections. Generally, governors have appointed justices to finish unexpired terms, allowing them to run in a competitive race as incumbents.

The op-ed has two particularly interesting aspects. One is that Dunlap’s group represents the defense bar in lawsuit cases, which some feel have benefited from justices appointed by former Governor John Engler, who sought to limit lawsuit settlements. The other is that Dunlap notes the politicking has occurred on both sides of the aisle:

“Much has been written about the four Supreme Court justices appointed by Republican John Engler during his three terms as governor. Little has been written about the Supreme Court led by Chief Justice G. Mennen Williams, a former governor, with a Democratic majority. This is unfortunate as the latter was a time of Democratic dominance of the court where different majorities, also along party lines, were recorded.”

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Justice Scalia Unplugged

As  noted in Gavel Grab a few months back, Justice Scalia’s comments about the role of the Court have often made him a lightning rod for controversy. 

Scalia is also known to be very distrustful of the media and has taken steps in the past to prevent the media from covering various lectures he has given around the country.

On Monday, Scalia allowed the Salt Lake Tribune’s Brian Maffly to cover a lecture at Utah State University, where he keynoted a conference hosted by the political science department’s Project on Liberty and American Constitutionalism. Scalia said it was an attempt “to bring attention to the nation’s founding principles.”

Here is the Tribune article on Scalia’s talk.

Scalia may have introduced a new term to the judicial lexicon, the ‘judicial moralist’, as a danger to the modern court:

“I’m questioning the sanity of having value-laden decisions being made by unelected judges,” he said. “Nothing I learned at Harvard or in my practice of law qualifies me to decide whether there is a right to abortion or to assisted suicide.”

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Brookings Hosts Panel on Future of Judiciary

The Brookings Institution hosted the first of its Judicial Issues Forums for 2008-09, entitled “The Next Administration and the Future of the Judiciary.”

The panel focused mainly on the possible changes to the federal judiciary under a McCain presidency and an Obama presidency.  Speaking at Thursday’s session were Doug Kendall, Founder and President of the Constitutionality Center, Russell Wheeler, a Visiting Fellow at the Brookings Institution, and M. Edward Whelan III, President of the Ethics and Public Policy Center. Benjamin Wittes, Fellow and Research Director in Public Law at the Brookings Institution, moderated.

Every speaker agreed on one point: the next president will have a dramatic impact on the courts. They noted the possibility of at least two retirements on the Supreme Court, and retirements and a likely increase in the number of appellate judges.

As to the Court of Appeals, Wheeler showed how ebbs and flows in retirement Read more

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Role of Courts Takes Center Stage at ABA Meeting

The role of courts and judges was a recurring theme at the  American Bar Association’s annual meeting, which concluded  today in New York.

At his press conference, incoming ABA President H. Thomas Wells Jr. proposed a plan to reduce partisan sniping in the nomination of federal judges. But the theme also was at the center of three major panel discussions, two professional education programs and a luncheon honoring the lawyers and judges of Pakistan who defied President Musharraf when he arrested many of that nation’s top judges last November.

A summary of ABA activity in the last week:

  • On Monday, Wells discussed an ABA resolution that urges senators in each state to form bipartisan commissions that would evaluate and recommend judicial nominees, and further urges the president to consult with state senators before submitting a court nominee. In a videotape of his press conference, Wells notes says the plan, currently used Read more
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Mississippi Calls for Reform

With the fall out from the conviction and sentencing of disgraced attorney Richard F. “Dickie” Scruggs judicial bribery trial, many in the Mississippi legal system feel that now is the time to change the judicial selection process in the state. With this in mind, The Clarion-Ledger published an article on Sunday that discusses this new call for change. However, there is a big hurdle to reform, as explained here:

Changing from an elective to appointive judicial system would take a constitutional change, which requires a statewide referendum. Then it could face issues under the Voting Rights Act because of its possible impact on minority elected judges.

But the biggest hurdle is general Mississippi tradition of wanting to vote on everything and everybody. Voters would see going to appointed judges as taking away a right to vote.

It should be noted that the Chief Justice and past president of the state’s bar association would like to see some type of reform. Stay tuned to Gavel Grab for more updates.

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Evaluating the Justices?

Can Supreme Court justices be objectively rated by whether they are “partisan” or activist? A Washington Independent article by Cass Sunstein, titled “Judicial Partisanship Awards,” purports to do exactly that.

The authors evaluated the justices based on their propensity to rule in opposition to liberal or conservative interests:

Table 1: Partisan Voting on the Supreme Court:

Justice Gap between liberal and conservative agency decisions
( in percentage points)
Type of Agency Decision Favored
Clarence Thomas 46 Conservative
John Paul Stevens 40 Liberal
Antonin Scalia 27 Conservative
Stephen Breyer 26 Liberal
Ruth Bader Ginsburg 23 Liberal
William Rehnquist 21 Conservative
Sandra Day O’Connor 14 Conservative
David Souter 14 Liberal
Anthony Kennedy 1

And according to their likelihood to overrule previous agency or other authoritative decisions:

Table 2: Activism on the Supreme Court:

Justice Rate of upholding agency decisions (percentage points)
Breyer 82
Souter 77
Ginsburg 74
Stevens 71
O’Connor 68
Kennedy 67
Rehnquist 64
Thomas 54
Scalia 52

Obviously, any attempt at objectively determining or defining subjective terms like “activist,” “conservative,” and “liberal” will itself be somewhat subjective, but this is a pretty nice attempt.

Check out the full story here.

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New Developments on Terror Cases

A legal battle is shaping up over how federal judges should view the Guantanamo cases, in the wake of the Supreme Court’s Boumediene ruling. The Justice Department would like a “streamlined” process that gives judges very “narrow review,” while defense lawyers want a more “sweeping and penetrating” look into the government’s reasoning for detaining defendants, according to SCOTUS blog

Also, U.S. District Judge John C. Coughenour said in a Washington post op-ed that federal courts are well-suited to try terrorism and detainee cases. Judge Coughenour, who sentenced the millennium bomber in 2005, said federal courts can guarantee “circumspect and legitimate” trials that balance individual liberty with community safety. In an editorial, the Post endorsed the alternative framework of a specialized national security court to do the job.

Other resources: a U.S. District Court  information page and schedule for Guantanamo cases; Justice at Stake’s recap of 2008 activity, “What Role for the Courts in the War on Terror? A Summary of Recent Developments”; and “Courting Danger,” Justice at Stake’s review of civil liberties and the war on terror.

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