Gavel Grab

For the first time in recent years, two sitting Ohio Supreme Court justices were unseated from the bench in an election, according to the Columbus Dispatch. Republican Justice Robert Cupp (right) and Democratic Justice Yvette McGee Brown (left) lost to their challengers on Tuesday.

Butler County Judge Sharon Kennedy, a Republican candidate, won over Brown. Democratic candidate William O’Neill topped Justice Cupp, a Cincinnati.com article notes. O’Neill will be the lone Democrat on the high court.

O’Neill was recently accused in an ad by the Republican Party of having expressed “sympathy for rapists” (see Gavel Grab).

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Kansas District Judge Jan Satterfield faces an ethics complaint over “liking” a Facebook post by a candidate who is running for local office, the Augusta Gazette reported.

Former Butler County resident Lee White filed a complaint against the judge for clicking on the “like” button of Sheriff Kelly Herzet’s campaign page. The complaint was filed on the grounds that Judge Satterfield violated ethics rules by endorsing a candidate running for public office.

White said liking the post could be interpreted as showing bias:

“Although it seems trivial on the surface, I believe this could be an interesting case and probably the first of its kind in Kansas. With the growth of social media, the court system needs to define how its rules for judges apply in cyberspace. I hope the commission and perhaps even the Kansas Supreme Court will do so in this case.”

Satterfield said she had not been aware of the complaint and has never endorsed a candidate. “I will vote like anyone else, but judges can’t endorse candidates,” she said.

Wisconsin Justice Michael Gableman, who has been embroiled in running controversies since defeating former justice Louis Butler in a  nasty 2008 election campaign, is at the center of two new disputes, including a demand that the state Supreme Court reopen a hugely divisive case over the collective bargaining rights of government workers.

In a motion filed last Friday, Dane County District Attorney Ismael Ozanne said that Gableman (photo) previously had received undisclosed free legal services from a law firm, Michael Best & Friedrich, that represented Gov. Scott Walker in the collective bargaining case.  According to a Milwaukee Journal Sentinel report, Eric McLeod, a Michael Best attorney, provided free legal counsel to Gableman as he fought an ethics complaint alleging he had aired ads that lied about Butler’s record. 

Noting that McLeod also served as an attorney for Gov. Walker, Ozanne  asked the court to reopen the bargaining rights case, and  asked Gableman to recuse himself.  ”Any litigant in any case deserves to have his case heard by a judge who has not secretly received a valuable gift from the other side’s lawyer,” Ozanne wrote.

The court, on a 4-3 vote with Gableman participating, rejected claims by state Democratic lawmakers that the Wisconsin legislature failed to meet legal requirements in passing and posting a law that sharply limited collective bargaining rights. Ozanne, a Democrat, is representing the losing side.

In a second related controversy, McLeod resigned from a state judicial selection commisssion. According to a Journal Sentinel article, Gov.Walker had said he was considering removing McLeod from the panel.

The contoversies provoked a particularly biting Capital Times commentary, in which editor emeritus Dave Zweifel wrote, “If Gableman had any scruples, he’d resign.”

President Obama is getting good marks for his nominations that have brought greater diversity to the federal bench. There’s also a cost, some observers say.

“It’s a very important priority for the president,” Kathryn Ruemmler, the new White House counsel, told NPR for a report broadcast Thursday. “Having racial diversity, gender diversity, experiential diversity — all of those things we are mindful of and committed to seeking out when we’re looking for the best candidates.”

According to the White House, 97 judicial candidates nominated by Obama have gained confirmation so far, and almost half are women and about one-fourth are black. The president has nominated four openly gay candidates (see Gavel Grab) and brought about a doubling of Asian-American federal judges.

The “firsts” that Obama can take credit for are the first Hispanic justice on the U.S. Supreme Court, the first openly gay man to sit on the district court and the first Chinese, Korean and Vietnamese nominees who are female.

“Obama is nominating many more diverse nominees than his predecessors … strikingly so,” said Caroline Fredrickson, head of the American Constitution Society.

“But the nominees are not getting confirmed with the same kind of success,” Fredrickson added. ”For women and minorities, it’s just been a bigger hill to climb before they actually get a vote,” Fredrickson explained. “And so for whatever the reasons, the facts speak for themselves.” Read more

In Wisconsin, where a new Republican senator has blocked an appeals court nomination, he and the state’s Democratic senator are giving different views on judicial nominations.

Republican Sen. Ron Johnson (photo at left) contended in a Milwaukee Journal Sentinel column that law professor Victoria Nourse, nominated to the Seventh U.S. Circuit Court of Appeals, was not qualified. She did not get a license to practice law in Wisconsin until December 2010, he wrote, and in addition, the Democratic-controlled Senate Judiciary Committee never held a hearing on her nomination after she was nominated in July 2010.

Johnson, who is newly elected, has blocked consideration of her nomination and protested that he should have been consulted by President Obama. Some legal experts have taken a different view (see Gavel Grab).

Democratic Sen. Herb Kohl (photo at right) wrote a column published in the Milwaukee newspaper the same day, about the success of the Wisconsin Federal Nominating Commission for judges. “Our commission process has enabled Wisconsin’s nominees to stay above the political skirmishes about judges regardless of the party in control of the Senate or the White House,” he maintained. Read more

Judge Richard D. Cudahy of the Seventh U.S. Circuit Court of Appeals disparaged obstructionist tactics used to block confirmations in the Senate, an ACS blog reports.

At the 2011 ACS National Convention, Judge Cudahy mentioned the blockage of consideration for some qualified appointees, including his daughter-in-law Victoria Nourse, a judicial nominee. Cudahy called these tactics a “disgraceful display of partisan rancor.”

The article notes a news report that newly elected Sen. Ron Johnson of Wisconsin, a Tea Party favorite, has taken a highly conservative stance on judicial confirmations and stalled consideration of Nourse, nominated to the Seventh Circuit, and Louis Butler Jr., nominated for a district judgeship in Wisconsin (see Gavel Grab).

Cudahy cautioned that partisanships and obstructionist tactics will lead to a federal bench where judges in their 80s and 90s do most of the work. He spoke candidly, saying:

“ [T]hey will be the only ones left to do anything. I don’t think it’s any coincidence that the most appreciated presentation in our most recent Circuit conference was a lecture by a doctor on Alzheimer’s and other forms of dementia. He provided us with useful information about a subject that really concerns us, and ought to.”

Two of President Obama’s nominees for the federal bench from Wisconsin appear unlikely to be confirmed after encountering GOP opposition, according to a Milwaukee Journal Sentinel article.

Newly elected Sen. Ron Johnson of Wisconsin (photo at left), a Republican,  defeated Democratic Sen. Russ Feingold last year. Johnson opposes the holdover nominations of former Wisconsin Supreme Court Justice Louis Butler Jr. for the federal district court and of Victoria Nourse, a law professor at the University of Wisconsin, for the Seventh U.S. Circuit Court of Appeals.

The Senate Judiciary Committee chairman won’t schedule confirmation hearings on judicial nominees unless both home-state senators support them, a committee aide said.

Johnson believes “any holdover nominees would need to be renominated” through a process involving a judicial nominating commission, and his office has talked to the White House and the office of Sen. Herb Kohl, D-Wisc., about the structure of the commission for the current Congress, the article quoted a Johnson aide as saying.

Obama has nominated Butler four times. In 2008, then-Justice Butler was defeated for re-election by challenger Michael Gableman in a heated election contest. Justice Gableman went on to face an ethics complaint for a campaign ad that had attacked the incumbent. When the state Supreme Court deadlocked on the ethics complaint, the Wisconsin Judicial Commission dropped it (see Gavel Grab).

Republican Rep. Jim Sensenbrenner of Wisconsin said after Obama had  nominated Justice Butler, “Now, the man who was voted off the bench in Wisconsin is being given a promotion, a lifetime appointment and a pay raise.”

Kohl announced recently he will not seek re-election in 2012, giving him perhaps less influence with Johnson on the nominees than if Kohl were not a lame duck. Read more

TV spending by special interest groups in the Wisconsin Supreme Court race has risen to more than $3.5 million and broken the previous record. On the morning after Election Day, the contest was too close to call.

The total of special interest spending on TV ads by Monday surpassed the $3.38 million spent in another heated and nasty contest, the 2008 race between then-Justice Louis Butler and challenger Michael Gableman, according to data released by the Brennan Center for Justice.

“Once again, costly spending and negative attack ads have raged out of control in Wisconsin,” said Charles Hall, a Justice at Stake spokesman, in a press release. “Regardless of who wins this election, public confidence in a fair, impartial court system will inevitably be damaged.”

“The feverish special interest spending on television ads in this year’s Supreme Court race — which eclipsed the record-setting spending of 2008 — has cemented Wisconsin’s reputation as a state in which, unfortunately, costly multi-million dollar judicial campaigns and vicious mudslinging attack ads are commonplace,” said Adam Skaggs, counsel for the Brennan Center’s Fair Courts Project.

Early today, Justice David Prosser held a lead of 835 votes over challenger JoAnne Kloppenburg with all but 24 of the state’s 3,630 precincts reporting, the Milwaukee Journal Sentinel reported.

The cliff-hanger had political insiders talking about a possible recount. A recount  could in turn be followed by litigation. And the outcome of litigation might ultimately come before the state Supreme Court. Read more

Two legal challenges to the constitutionality of Wisconsin’s new law for public financing of state Supreme Court elections were dismissed by a federal judge.

The candidates facing off in an election for the Wisconsin Supreme Court on Tuesday have received public funds for their campaigns under the new law. But the law’s future still is uncertain, given a challenge to an Arizona public financing statute that was heard by the U.S. Supreme Court this week (see Gavel Grab).

U.S. District Judge William M. Conley issued a 39-page opinion and order, according to a Milwaukee Journal Sentinel article, denying a request for an injunction to halt  public funding for the election. It was sought by Wisconsin Right to Life, which contended its free speech rights were violated under the statute.

“Wisconsin’s interest in safeguarding even an appearance of bias is stronger than any of the public financing statutes considered by courts to date,” Judge Conley wrote. He said Wisconsin’s law was narrowly tailored toward that goal and should stand.

When Judge Conley referred to a January 2008 public opinion poll, he appeared to be referring to a poll commissioned by Justice at Stake. The poll showed 65 percent of Wisconsin voters backing a plan to offer public financing to qualified candidates, and 77 percent thought the legislature and governor needed to take action on judicial campaign reform before the next election.

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Justice at Stake deplored today an attack ad aired against Wisconsin Justice David Prosser, calling it a new example of the state’s furious descent into negative politics in state supreme court elections.

“Wisconsin has become Ground Zero of all that is wrong with state supreme court elections in America today,” Executive Director Bert Brandenburg said in a press release. “For the third time in four elections, special interest money and character attacks are driving the campaign.”

The ad purchased by the liberal Greater Wisconsin Committee accused Justice Prosser, when he was a prosecutor in the late 1970s, of failing to aggressively investigate sex abuse allegations against a Catholic priest (see Gavel Grab).  People involved in the case have made conflicting statements about his role, and the judge has called the latest charges inaccurate and a “smear.”

According to PolitiFact Wisconsin, a respected outlet that examines the truth or falsity of political claims, the ad’s charges rate as “Barely True.”

A total of $1.4 million has been spent on TV advertising in Wisconsin so far, according to a report released today by the Brennan Center for Justice, with special-interest groups accounting for 82 percent of that. The Brennan Center is a JAS partner. Read more