Gavel Grab

One century ago, Theodore Roosevelt floated the idea of reform to provide for popular recall of judicial decisions on constitutional questions. A version of Roosevelt’s idea is getting a fresh airing today.

Lyle Denniston has reported on the Supreme Court for more than half that century. In a Huffington Post commentary this week, Denniston introduces to some readers for the first time the “People’s Veto” idea articulated in a Washington Post op-ed Dec. 30 by Thomas Donnelly, a lecturer at Harvard Law School. Denniston also lays out some questions for Donnelly.

When the Supreme Court divides 5-4 on a constitutional issue, Donnelly proposes, “a People’s Veto would permit the public to weigh in, perhaps following a national petition drive or congressional authorization.” Donnelly adds, “Voters might no longer presume that the Supreme Court would get the ‘final say’ on high-salience constitutional issues. Instead, they might ask themselves how they would decide the issue — and why.”

In Huffington Post, Denniston notes that under repeated Supreme Court rulings, only that Court or a constitutional amendment can revise a constitutional ruling by the justices. Denniston then extrapolates from Donnelly’s “final say” formula to pose questions in advance of a longer Donnelly piece coming in the Wisconsin Law Review:

“That sounds like not much more than an expression of constitutional advice, so it might not have the real-world effect of overturning the Supreme Court decision. But if the ‘voters’ are, as he suggests, to gain the power to settle such divisive constitutional issues, there would have to be some device for translating their views into binding law. The complications of that are sufficiently daunting that one might ask whether Donnelly does, in fact, want the Veto to be binding.

“It will be interesting, then, to read his extended version of the People’s Veto argument in the forthcoming law review article.”

President Obama recently lit into Senate Republican threats to block his nominees, saying  “all of the judicial nominees being blocked have bipartisan support. And almost 90 percent have unanimous support from the Judiciary Committee.”

And that, Al Kamen remarks in the Washington Post’s In the Loop blog, supports the notion there’s a new tradition developing in Washington: an election-year attack by the president on the Senate for obstructing judicial picks.

President George W. Bush did it almost exactly four years ago when he protested in a Saturday address, the same forum used by Obama, that Senate Democrats were slowwalking his picks for the bench.

On the one hand, Kamen says, Obama is right about Senate Republicans aggressively obstructing his nominees, and he cites an Alliance for Justice study as proof. On another hand, Kamen adds, Obama has been slower to send judicial nominees to the Senate than his two predecessors during a corresponding period.

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Tea party conservatives have pushed for Tennessee legislators to grab control over naming members of a judicial discipline commission, and legislators now are weighing two rival bills, one sponsored by a top critic of the panel and the other supported by judges.

The commission is called the Court of the Judiciary. It currently has 16 members, 10 of whom are judges — and most of the judges are Democrats, appointed by the state Supreme Court. The legislature is controlled by Republicans.

“The appearance of judges appointing judges to hear complaints on judges doesn’t give them much credibility,” said Senate Judiciary Chairwoman Mae Beavers, a Republican; her bill would get rid of the existing board and start over by cutting it to 12 members, including four sitting judges and one retiree. All members would be named by speakers of the House or Senate.

A reform bill pushed by judges would eliminate the Court of the Judiciary and set up in its place a “Board of Judicial Conduct,” still with 10 of its 16 members who are judges. The board would have a lower standard for conducting a full investigation; board members, not staff, would have responsibility for discarding complaints; and the board would issue public reports quarterly, according to a Tennessee Report article.

“Certainly there have been issues, and I think we’re trying to address those issues,” said Criminal Appeals Judge Jeff Bivins. “We have some new membership. I think some of us are looking harder at cases and taking a little tougher line.”

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Tags: Tennessee

In these other dispatches about fair and impartial courts:

• A Wichita (Ks.) Eagle editorial mentioned a report that two county judges had given $100 each to an anti-abortion political action committee and asked, “Even if they are breaking no laws or ethics rules in doing so, don’t they care how their actions will be perceived by the public?”
• In Alabama, “The hottest race on the March primary ballot … may not be the Presidential race, but the race for Chief Justice of the Alabama Supreme Court,” WSFA reported. Chief Justice Chuck Malone, one of the GOP candidates, raised more than $101,000 in January.
• Although budgetary concerns were raised, Oregon’s House Judiciary Committee voted to increase the number of judges on the state Court of Appeals from 10 to 16, an Oregonian article said.

Time is ticking away until the Supreme Court hears oral arguments in the monumental case deciding whether the new health care law is constitutional. Many will anxiously await the Court’s decision, and C-SPAN has requested permission to televise all five-and-a-half hours of oral arguments. Despite repeated demands and questions, the justices have not permitted cameras in the courtroom.

Supreme Court justices have cited concerns that cameras would taint the dignity of their proceedings. Chief Justice John Roberts voiced his worries over the effect cameras may have on lawyers and judges.

According to a CNN article, the Supreme Court is in a minority nationally in forbidding camera coverage of open hearings. Two-thirds of state supreme courts have admitted cameras to cover oral arguments. In the Illinois Supreme Court, videos of hearings from cameras operated by state employees are posted daily. New York’s Court of Appeals has provided TV coverage since 1987. Arkansas Supreme Court Justice Robert L. Brown wrote that “the public’s response, according to those state supreme courts that provide those video broadcasts, borders on the exuberant.”

Many foreign courts are also welcoming live broadcasts of court proceedings, according to the article. Canada’s Supreme Court has televised its hearings since the 1990s. The Supreme Court of Britain is allowing the arguments on the extradition of Julian Assange to be broadcast to the public. A New York Times editorial praises the British court for its actions, citing how a TV broadcast can “boost the court’s reputation and confidence in the legal system.”

The U.S. Supreme Court appears highly reluctant to alter its policy on cameras. Even without live broadcasts, Chief Justice Roberts has said courts are the  ”the most transparent branch of government.”

A  proposal by three top Tennessee Republicans to enshrine through a constitutional amendment the state’s merit selection plan for choosing judges is getting mixed reaction in the legislature, and it does not divide along party lines.

That analysis comes from a Tennessee Report article. Last week, the Republican governor and House and Senate speakers announced the proposal to legitimize the state’s merit selection process and keep alive a process that has worked well, rather than turn to judicial elections (see Gavel Grab).

“I am very glad to see the gov and the speakers take the position that they have to amend the constitution, really to conform the current process to the Constitution,” said Republican state Sen. Ken Yager. “I’m going to support that, and I think that’s a good solution to the problem.”

Republican Rep. Mike Bell, who sponsored last year a bill for popular judicial elections, said he doubted a majority of Tennessee voters would support Gov. Bill Haslam’s proposed amendment but that he would block Haslam’s proposal.

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Tags: Tennessee

In these other dispatches about fair and impartial courts:

• Republican Sen. Mike Lee of Utah said President Obama’s decision to make several recess appointments recently amounted to a “day of infamy,” according to a Washington Post blog. Lee has said he will seek to block all judicial and executive branch nominations in response. A Huffington Post article said Lee’s political action committee was “raising money off of his effort.”
• In a preview of issues likely to be addressed when a Civil Justice Reform Task Force reports this month, an Eastern Iowa News Now article was headlined, “Costs of litigation prevents access to court for people with smaller civil claims, lawyers say.”
• “Congress can fix the Super PAC problem,” declared the headline for a Salon commentary by Adam Skaggs of the Brennan Center for Justice, a JAS partner group.

Addressing the Mason City Noon Lions Club, Iowa Supreme Court Justice David Wiggins spoke plainly to emphasize how judges and legislators differ in their jobs.

Tags: Iowa