Gavel Grab

In these other dispatches about fair and impartial courts:

• In the Democratic primary for Pennsylvania’s Superior Court, the winner, Jack McVay appeared to have been chosen based on geography rather than ideology. Robert Steele, an associate professor of political science at Penn State argues in an editorial for Philly.com  that in judicial primary elections, voters tend to choose candidates based on arbitrary factors such as name or place of residence.
• President Obama’s nomination of Circuit Judge Brian Davis of Nassau County to a seat on the federal bench is being held up by Sen. Marco Rubio, the Florida Republican who had initially been Davis’s chief supporter at his confirmation hearing. The Florida Times-Union reports that Rubio retracted his support after Sen. Charles Grassley of the Senate Judiciary Committee criticized Davis, who is black, for comments that he had made regarding race.
• The federal sequester that took effect in March cut $85 billion dollars in federal expenditures, including 5 percent cuts to the Courts, the Department of Justice and federal defenders. Matthew T. Mangino, a former Lawrence County, Pa. district attorney, argues in an commentary for the Herkimer Telegram that these budget cuts may negatively impact public safety and could prove to be “penny wise and pound foolish” in the long run.
• The Connecticut House passed a bill that increased the amount of money that State Central Committees, leadership PACs and other groups can raise and donate to candidates receiving public funding. CT News Junkie reports that the passage of this bill was largely in response to the U.S. Supreme Court’s Citizen’s United decision, which eliminated restrictions on campaign spending by outside groups.
• The Rhode Island Senate approved Gov.Lincoln Chafee’s nominations of state court magistrates to the Superior Court and the Family Court bench, the Providence Journal Reports. The Senate approval comes after watchdog groups had raised questions about Chafee’s failure to nominate judges within the amount of time allotted by the state Constitution. (Read more on Gavel Grab).

Political deal-making in appointing top judges and court-stacking are among the dangers posed by legislation introduced in Kansas to change the way judges are selected, a Lawrence Journal World editorial says. It warns of a likely “heated ideological battle next year about the role and significance of the state’s highest court.”

The editorial dissects three late-session proposals introduced by Republican Rep. Lance Kinzer (see Gavel Grab). The proposals would eliminate merit selection for the Court of Appeals and Supreme Court and replace it with a federal-style appointment-and-Senate-confirmation system; if that fails, reduce from 75 to 65 the mandatory retirement age for these judges; and split the Supreme Court in two, with a Court of Criminal Appeals handling criminal cases and the Supreme Court handling civil cases.

The editorial sees at play the guiding hand of politicians unhappy with court rulings, and it identifies perils of the proposals:

“It’s no secret that Gov. Sam Brownback and many state legislators are upset with the Kansas Supreme Court and its decisions on a number of issues — particularly its ruling that the state isn’t fulfilling its constitutional mandate to properly fund K-12 education. Rather than work to pass legislation or amend the constitution to deal with specific issues like school finance, however, legislators are choosing to attack the courts in ways that could potentially upset the intended balance of power among the three branches of government. Read more

“Merit selection isn’t about selecting liberal or conservative judges,” four former Pennsylvania governors said in a letter to the editor refuting the central thesis of a recent critical Wall Street Journal editorial. The editorial said merit selection “has regularly sent state courts to the left.”

“As former governors of Pennsylvania, we care about choosing judges based on their experience and qualifications, not their political connections and fundraising skills. Merit selection is supported by a broad coalition of Pennsylvania businesses, civic and law-related organizations and religious groups,” the former governors wrote.

The group of former governors includes Republicans Dick Thornburgh and Tom Ridge, and Democrats George Leader and Ed Rendell. In March, they wrote a letter to the state legislature touting the benefits of merit selection, particularly in the wake of Supreme Court Justice Joan Orie Melvin’s conviction (see Gavel Grab) for public corruption.

The former governors, further disagreeing with the editorial,  said merit selection of judges provides accountability. Read more

In these other dispatches about fair and impartial courts:

• Truth Out reports on a press release by Justice at Stake and the Brennan Center for Justice, detailing how over $300,000 was spent in a Wisconsin Supreme Court primary election. The Brennan Center is a Justice at Stake partner organization.
• D.C. Superior Court Judge A. Franklin announced that he will retire at the end of his term in August, leaving a fourth vacancy on the court’s bench, says the Blog of Legal Times.
• Federal Judge Louis Oberdorfer passed away last week at the age of 94, and has been called a “towering figure in the American judicial system.” The Blog of Legal Times has a compilation of comments about Oberdorfer from his former clerks, colleagues and friends.
• The New York Times reports that dozens of high profile Republicans signed a legal brief this week in support of same-sex marriage. The article called their legal brief a “direct challenge” to House Speaker John Boehner, and illustrated the divisions within the party.
• Florida’s court clerk and comptroller offices are asking state legislators to provide their services with more adequate funding in the coming years. Karen Rushing, county clerk of the circuit court writes in a Ledger op-ed that having more funding has become a crucial issue.

BULLETIN: Justice at Stake urged on Tuesday that Michigan Gov. Rick Snyder create a nonpartisan advisory commission to help him fill a vacancy on the state Supreme Court and bolster public confidence in the court’s impartiality.

After the Michigan Judicial Tenure Commission accused her of “blatant and brazen violations” of judicial ethics rules, it was announced that state Supreme Court Justice Diane Hathaway will retire Jan. 21.

Republican Gov. Rick Snyder could name a replacement for Justice Hathaway, who was nominated by Democrats, according to a Detroit News article. The court currently has a 4-3 majority of justices nominated by Republicans, USA Today reported.

A Detroit Free Press editorial urged that Snyder accept a recommendation of a bipartisan judicial selection reform task force (see Gavel Grab for background) and “choose his next nominee from a list of three to five candidates vetted, in public hearings, by a panel of respected lawyers and lay people.” The editorial stated:

“The commission, co-chaired by then-state Supreme Court Justice Marilyn Kelly and U.S. Court of Appeals Judge James Ryan, spent more than a year exploring ways to insulate the ostensibly non-partisan state Supreme Court from the corrupting influence of Michigan’s political parties and the special interests that bankroll them. An executive order establishing a governor-appointed nominating panel would be a modest but important step.”

Read more

In these other dispatches about fair and impartial courts:

• “Television advertising in state Supreme Court elections nearly hit $30 million this year,” a Legal Newsline article reported, drawing on a joint analysis by Justice at Stake and the Brennan Center for Justice.
• A Detroit Free Press article was headlined, “Michigan Supreme Court’s Hathaway wins delay in feds’ efforts to seize her home in scandal.” For background about accusations against Justice Diane Hathaway, see Gavel Grab.
• Doug Kendall of the Constitutional Accountability Center wrote a Huffington Post commentary entitled, “While Politicians Run, Conservative Judges Stand for Voting Rights.”
• Republican Allen Loughry, elected to the West Virginia Supreme Court last month, took the oath of office. A West Virginia MetroNews article reported that Loughry “says he’s proof that a clean campaign works.”

In these other dispatches about fair and impartial courts:

• Tennessee Gov. Bill Haslam dismissed the suggestion that appeals court judges could be elected by popular vote in 2014 while speaking to the Davidson County Republicans Tuesday, reports The Tennessean. The Tennessee Supreme Court has found the current judicial selection system constitutional twice, and Haslam says he doesn’t “think that we’re going to come up with a different process” between now and 2014, when the Tennessee Constitution could be amended.
• Regardless of Jeffrey Boyd’s legal background, a Beaumont Enterprise op-ed finds it “unsettling to see [Gov. Rick] Perry routinely acting like a Chicago alderman doling out patronage for such an important position.” A vacancy on the Texas Supreme Court, the op-ed continues, should be treated with respect, not “brazen politics.”
• In Florida, Senate Judiciary Committee Chairman Tom Lee says that while it is “probably too soon to tell” whether major changes to the state’s judicial system will be attempted in the coming year, it looks unlikely, reports the Sunshine State News. “I certainly don’t have an agenda to do anything aggressive with respect to the court system, except trying to help make it more efficient,” Lee said.

A federal civil complaint accused Michigan Supreme Court Justice Diane Hathaway and her husband of hiding assets to defraud a bank and get out of $600,000 in debt. It seeks forfeiture of her second home in Florida.

U.S. District Attorney Barbara McQuade said in the complaint that Hathaway and Michael Kingsley, her husband,  ”systematically and fraudulently transferred property and hid assets in order to support their claim to (ING Direct) that they did not have the financial resources to pay the mortgage on the Michigan property,” according to a Detroit News article.

Chief Justice Robert Young Jr. labeled the federal allegations a “dreadful development” and called on the justice for an explanation. The Michigan GOP and Republican consultant Dan Pero, who had submitted a judicial ethics complaint against Justice Hathaway, called on her to resign.

Although the presidential election underscored deep division in America, voters delivered a true mandate on another front: “[T]hey want their judiciary to be nonpartisan,” Justice at Stake Executive Director Bert Brandenburg wrote in a Slate commentary.

“Tucked away in last Tuesday’s national election results was a bona fide mandate, on a scale that presidents can only dream of. Voters across the country rejected a multifront crusade to bully judges and politicize courtrooms,” Brandenburg wrote.

He suggested that the election results in court contests and on court-related ballot measures added up to a “bipartisan backlash” against attacks on our courts. In Iowa and Florida,  voters retained state Supreme Court justices despite aggressive and partisan ouster campaigns;  in Arizona, Missouri, and Florida, voters decisively rejected ballot items to “water down” merit-based judicial selection.

Brandenburg’s analysis of a far-reaching  victory on Election Day for defenders of fair and impartial courts was headlined, “Beating Back the War on Judges: Voters rejected the crusade to politicize the courts.”

Read more

On Tuesday, Florida voters retained three Supreme Court justices and rejected a proposed ballot measure that would have altered the state’s court system, “affirming the value of an apolitical judiciary,” a Herald-Tribune editorial says.

63 percent of voters opposed Amendment 5, which would have required Senate confirmation of Florida’s Supreme Court justices, and allowed legislators to alter rules for the court system. The amendment was called a power grab by state lawmakers and an example of overreaching, the editorial says (see Gavel Grab).

Floridians also voted to retain Justices R. Fred Lewis, Barbara Pariente and Peggy Quince. All three received about 67 percent of the vote, the editorial notes. The three had faced an “unprecedented opposition” by interest groups and the Republican Party of Florida.

According to the editorial, each of the justices raised almost $300,000 to finance their campaign. They were supported by lawyers and others in the legal field.

Despite efforts to inject politics into the courts this election, Tuesday “provided an encouraging affirmation of a judiciary free from unnecessary political interference.”