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New Senator Active in Judicial Reform
When West Virginia Gov. Joe Manchin selected his former general counsel, Carte Goodwin, to fill temporarily a vacant U.S. Senate seat, Manchin selected a lawyer familiar with judicial reform issues.
Goodwin was named earlier by the governor to head the Independent Commission on Judicial Reform, according to a statement by Manchin Friday. The commission’s honorary chairwoman was retired Supreme Court Justice Day O’Connor. The panel made several recommendations (see Gavel Grab), including a pilot plan for public financing of state Supreme Court elections; the legislature went along with that idea.
A Huffington Post article featured video from a Georgetown University Law School conference in which Goodwin participated in a panel discussion about the Supreme Court’s Caperton v. Massey decision, a landmark ruling involving fair and impartial justice in West Virginia. Goodwin had kind words for Bert Brandenburg, executive director of the Justice at Stake Campaign and another member of the panel.
No commentsWI High Court Actions Stir Controversy
Two actions by the Wisconsin Supreme Court, adopting new recusal rules and deadlocking over an ethics complaint against a justice, have stirred up strong reaction.
In its Big Money Blog, the Wisconsin Democracy Campaign criticized both decisions in a post headlined “High Court Sinks to New Low.” On the recusal rules, formally adopted this week by a bitterly divided court (see Gavel Grab), the group said the state Supreme Court had ignored the U.S. Supreme Court’s ruling last year in Caperton v. Massey. That decision found that large campaign expenditures could create an unacceptable potential for bias.
Wisconsin Democracy Campaign also criticized three justices who found an attack ad aired by Justice Michael Gableman in 2008 “distasteful” but also protected by the First Amendment. These justices said they did not believe Justice Gableman was guilty of misconduct, as laid out by an ethics complaint. Because the state Supreme Court deadlocked 3-3, the complaint was dropped (see Gavel Grab).
The group applauded a recent commentary about the Justice Gableman saga in ExpressMilwaukee.com, saying, “Columnist Joel McNally said it best: ‘This time a lowlife really did get off on a technicality.’” Wisconsin Democracy Campaign is a partner of Justice at Stake.
The following views were expressed in other commentary:
- “[T]he three justices who voted not to sanction Gableman found a loophole. Gableman is free to lie again in campaigning,” wrote O. Ricardo Pimentel for the Milwaukee Journal Sentinel Editorial Board in a blog. Read more
WI Justices Clash in Adopting New Recusal Rule
The Wisconsin Supreme Court, bitterly divided 4-3, has formally issued new rules stating that lawful campaign donations from a litigant shall not alone require a judge’s recusal in a case. The new rules were accompanied by stinging, dueling statements in which justices on opposing sides belittled each other.
Justice Ann Walsh Bradley, in a dissenting commentary joined by two allies, wrote that the new rules “signify a dramatic change to our judicial code of ethics” and have fueled a widespread perception in newspaper editorials that they “subvert the integrity of the court.”
Justice Bradley assailed the rules’ adoption in what she called a “ramrod manner.” She also said that following the U.S. Supreme Court’s Citizens United decision, “we should be adopting stronger standards for recusal rather than neutering our existing recusal rules.” Her statement came close to asking the legislature to look at judicial recusal:
“If this court is unwilling or unable to keep its own house in order, perhaps it will require action by others to step in and assist in maintaining the integrity of the court and preserving the public trust and confidence that Wisconsin judges will be impartial.”
Justice Patience Drake Roggensack, joined by colleagues in the majority, labeled Justice Bradley’s dissent as “undeserved” and as “a political statement that will foster disrespect for and distrust of the Wisconsin Supreme Court as an institution.” Justice Roggensack elaborated:
4 comments“Justice Bradley has chosen to base her attack on popular political positions, which she supports with newspaper articles rather than with the legal tenets upon which legal writing customarily is based.” Read more
JAS, Partners Urge Action on Judicial Backlog
The Justice at Stake Campaign and two partner groups urged the White House and Senate leaders today to join together and reduce a growing backlog of judicial nominations.
“The process of nominating and confirming federal judges has been politicized by both parties, damaging the integrity of our justice system,” said a joint letter by Justice at Stake, the Brennan Center for Justice and the American Judicature Society.
In addition, Justice at Stake sent the Senate Judiciary Committee a letter with 10 suggested questions to ask Supreme Court nominee Elena Kagan, dealing with the significance of a fair and impartial judiciary.
The three reform groups said that as of June 15, 103 Article III federal judgeships were vacant, and 40 of the vacancies were deemed “emergencies” by the federal courts. “These vacancies in the federal courts place even greater caseloads on our already overburdened federal judiciary, and thus create potential barriers to access to justice,” the letter said.
The groups asked the White House to step up its pace for making judicial nominations and called on the Senate to end the practice of anonymous holds, a maneuver used by individual senators to block judicial nominations covertly. They also advocated an up-or-down vote, without the threat of a filibuster, on Kagan’s nomination. The letter stated:
2 comments“We believe that every administration should make the nomination of judges to the federal bench a top priority, and should make every attempt to fill judicial vacancies expeditiously. We further believe that the Senate has the responsibility to act to confirm judicial nominees expeditiously and without needless delays.” Read more
Wednesday Media Monitoring Summary
KAGAN COMMENTARY
CNN/Political Ticker: CNN Poll: Regardless of experience concerns, majority back Kagan
6/1/2010
LA Times: Setback may have set Kagan on course for Supreme Court
Christi Parsons – 6/2/2010
KAGAN PAPERS/EXECUTIVE PRIVILEGE
Center For American Progress: Executive Privilege 101
Ian Millhiser – 6/1/2010
NOMINATION/POLITICS
NOMINATION/DIVERSITY
JUDICIAL PHILOSOPHY
Huffington Post: Elena Kagan: Bench the Judge-Umpire Analogy
Aaron Zelinsky – 6/2/2010
Scholar: Caperton Has Fueled Real Reforms
The Supreme Court’s landmark Caperton v. Massey decision in 2009 already has led to improvements in protecting courts from the influence of campaign cash, according to a legal scholar’s draft law review article.
James Sample of the Hofstra School of Law (photo), and formerly of the Brennan Center for Justice, takes a look at state court reform developments in the year since the high court decision.
Sample’s draft article is entitled, “Court Reform Enters the Post-Caperton Era” (thanks to Rick Hasen’s Election Law blog for the tip.) Sample discusses reform efforts involving judicial recusal and public financing, chiefly in Wisconsin, Michigan and West Virginia (all of which Gavel Grab has tracked closely: click here for Wisconsin, here for Michigan or here for West Virginia). Read more
No commentsJAS Cited in Report on MI Justices and Recusal
An article delving into the recusal views of two sitting Michigan Supreme Court justices also relies on Justice at Stake for data on past Michigan election spending.
The article in Michigan Messenger reports that Justices Robert Young Jr. and Maura Corrigan participated in an amicus brief filed in the landmark Caperton v. Massey case. They and some other current and former justices sided with Massey Energy and opposed rules that would disqualify judges from hearing cases involving major campaign donors.
Justice Young, who is up for reelection, likely will gain from business groups pumping millions of dollars into advertising, the article said. When Michigan’s Supreme Court toughened disqualification standards last year, Justices Young and Corrigan voted in opposition.
Examining the growth of independent political spending, the article used data from Justice at Stake to report that five candidates for the high court raised more than $1.6 million in 2004, compared to independent groups spending $1.8 million on TV ads. Justice Corrigan got more TV ad support from third party groups in 2006 than she raised for her campaign, the article added. Read more
No commentsMonday Media Summary
NOMINATION REPORTING
Blog Of Legal Times: Senate Sets Aside $300K for Kagan Hearing
David Ingram – 5/21/2010
KAGAN COMMENTARY
Milwaukee Courier: NAACP endorses Supreme Court nominee Elena Kagan
Editorial – 5/22/2010
Washington Post/AP: Elena Kagan’s writings suggest judge’s proper role
Mark Sherman – 5/23/2010
National Catholic Review: Kagan’s Paper Trail (or Lack Thereof)
RICH DALY – 5/24/2010
The Trentonian: Can free speech be redistributed?
NAT HENTOFF – 5/22/2010
National Journal: Bonfire Of The Inanities
Eliza Newlin Carney – 5/24/2010
CA Focuses on Judicial Elections and Fairness
California legislators got a glimpse of nasty advertising from other states when the Assembly Judiciary Committee held a hearing entitled, “Judicial Elections in California: Threats to the Perception of Fairness.”
According to a Legal Pad blog post, a video showed out-of-state campaign ads that “smeared various court candidates by linking them to insurers, trial lawyers or heinous criminals supposedly released too soon from prison.” (A video of the entire hearing is available here.)
California Supreme Court Justice Ming Chin told the hearing he was “getting closer” to opposing judicial elections completely. “The more that I hear about what’s going on across the country, the more concerned I am,” testified Justice Chin, who chairs the Commission for Impartial Courts.
The hearing included discussion by scholars of the Caperton v. Massey and Citizens United v. Federal Election Commission decisions by the U.S. Supreme Court, according to the Cal Watchdog blog.
Reforms that were discussed include public funding of judicial elections; disclaimers in campaign commercials; and longer terms for trial court judges. The witnesses included University of California, Irvine School of Law Dean Erwin Chemerinsky and Stanford Law School Professor Pamela Karlan.
California’s judicial system “is shaped largely by gubernatorial appointments and unremarkable retention elections,” according to Legal Pad blog. But that is not always the case; California was the scene for a widely publicized retention election revolt in which three justices, including Chief Justice Rose Bird, were voted off the court in 1986 for decisions overturning the death penalty.
No commentsSen. Byrd to Massey’s Blankenship: ‘Shame!’
Sen. Robert Byrd of West Virginia scolded Massey Energy CEO Don Blankenship at a Senate hearing, saying the company has final responsibility for its workers’ health and safety.
Shaking a finger at Blankenship, Byrd declared, according to an AOL News article, “I cannot fathom how an American business could practice such disgraceful health and safety policies while simultaneously boasting about its commitment to the safety of its workers. I can’t understand that. The Upper Big Branch mine had an alarming — an alarming — record.” Byrd added, “Shame!”
Blankenship, however, insisted that “Massey does not place profits over safety.”
Giving his first testimony since the Upper Big Branch coal mine explosion in West Virginia, the worst mining disaster in four decades, Blankenship “came out swinging,” the New York Times reported. He asserted that his company was “about average” for 23 miner deaths in the preceding decade, and he characterized the company as a leader in innovating for safety.
Blankenship’s $3 million spending to elect a West Virginia judge in 2004 figured centrally in a landmark Supreme Court decision last year, Caperton v. Massey, about the risk posed by excessive special-interest spending in judicial campaigns.
You can read more about Caperton in Gavel Grab. You also can visit Justice at Stake’s online Caperton v. Massey resource page, which includes a JAS amicus brief to the high court.
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