In these other dispatches about fair and impartial courts:
- When judges are elected, it allows corporations to influence the outcome of the law through campaign contributions, making it difficult for an individual to achieve justice against a powerful company. Billy Corriher of the Center for American Progress writes that big businesses are now spending millions of dollars to elect judges that have sided with corporations over individual Americans.
- The U.S. Supreme Court’s rationale behind its decision in Bush v. Gore was ”unacceptable,” said former Justice John Paul Stevens during a gala event for Public Citizen. According to a Slate article, Stevens said that all votes in the election should have been considered the same way.
- Former immigration lawyer William Orrick III was confirmed by the U.S. Senate to the federal district court in San Francisco on Wednesday. The senators confirmed him on a 56-41 vote, reports the San Francisco Chronicle, with only three Republicans voting in his favor.
- This week, a second federal appeals court ruled that President Barack Obama had overstepped his power when he made recess appointments to the National Labor Relations Board. A Fox News article states that the ruling by the U.S. Circuit Court of Appeals in Philadelphia could stall the actions of the labor agency.
- Five candidates are in the running for two seats on the Fayette County, Pennsylvania Court of Common Pleas, and some candidates have spent less than $10,000 while others have spent more than $130,000 apiece. The candidates will appear on both the Democratic and Republican ballots in the primary, and the top two candidates from each party will appear on the general election ballot, according to the Herald-Standard.
With sometimes caustic or seemingly partisan remarks from the bench, more judges and Supreme Court justices are behaving like bloggers instead of neutral jurists, Jeffrey Rosen warns in an intriguing Politico essay.
There is a potential cost for fair and impartial courts when Supreme Court justices, addressing the constitutionality of the health care law, begin using metaphors about broccoli that once were employed by Internet pundits, contends the law professor at George Washington University:
“[W]hen when lower court judges and justices act like partisan legal pundits, faith in the neutrality of the courts can only decline.”
“Judges who act like bloggers and pundits are putting their own ideological agendas above the long-term institutional interests of the courts on which they serve.”
A plausible explanation for declining public trust in the Supreme Court is a perception of partisanship on the court, law professor Barry Friedman of New York University suggests in The Nation.
Friedman spotlights the fact that when Justice Elena Kagan took the bench in 2010, the court’s ideological blocs mirrored the political parties of their appointing presidents for the first time in decades. “Now that justices’ natural ideological divisions mirror partisan ones, it’s easy to understand why the public is confused,” he writes.
Controversial cases about issues that more strongly pit Republicans against Democrats may lead the public to see the court through a political lens, Friedman adds, citing a case over Arizona’s restrictive immigration law as an example. He offers a warning about the court’s perception:
“The more justices are seen as making decisions on partisan issues and the more cases are decided along the current 5-4 Republican-Democrat divide, the more the public will disapprove. Until recently, the justices had fared well even among people who disagreed with this or that decision. Controversial decisions are, after all, part of what people admire about an independent court. But that respect will ebb if people see division on the Court as nothing other than business as usual in Washington.”
In these other dispatches about fair and impartial courts:
- U.S. Sen. David Vitter, R-La., said in remarks to the Press Club of Baton Rouge that he’d like to see the state legislature begin talking about how judges are chosen, and possibly adopting merit selection, according to a Times-Picayune article.
- You can watch by clicking here an archived video of Monday’s forum about Citizens United’s impact on judicial elections, presented by the University of California, Irvine, Law School chapter of the American Constitution Society.
- A Los Angeles Times article about immigration courts was headlined, “Detained immigrants with mental illnesses face barriers in court.”
The nation’s immigration system is in “crisis” with courts struggling to cope with mounting caseloads, an American Bar Association representative told the Senate Judiciary Committee.
“Our immigration system is in crisis, overburdened and under-resourced, leading to the frustration of those responsible for its administration and endangering due process for those who appear before it,” Karen Grisez, chair of the ABA Commission on Immigration, told the panel written testimony, according to an ABA Journal article.
Between 1996 and 2009 the number of non-citizens removed from the country increased more than 450 percent, she testified, without any commensurate additional resources for immigration courts.
The ABA has urged U.S. lawmakers to eliminate the existing immigration courts system and replace it with a new, independent court. You can learn more about those ABA recommendations from Gavel Grab. The ABA is a Justice at Stake partner.
Are contacts between Supreme Court justices and the federal government’s elected branches becoming more politicized — and posing a potential threat to public confidence in impartial courts?
That question is raised and explored in a USA Today article entitled, “Tensions rise between Supreme Court, politicians.” It takes in recent controversies, including President Obama’s stern in-their-face criticism of the high court’s Citizens United ruling a year ago, and Justice Antonin Scalia’s scheduled remarks today to the House Tea Party Caucus today.
Interactions between the justices and the executive and legislative branches have indeed become more politicized, the article asserts, and the following questions are raised about the implications:
“Court scholars say the trend could lead to public doubts about the ability of judges to be impartial and above politics, particularly when highly charged disputes over health care, gay rights and immigration are moving through the judiciary.
“‘It’s important not to overemphasize it because we don’t know where it’s going to lead,’ [University of Pittsburgh law professor Arthur] Hellman says. ‘But the totality could be to reduce the sense that there is something special about the courts, that they are above politics, above commerce, above other sectors of society today.’”
An article in The Hill about tomorrow’s annual speech by the president to the entire Congress was headlined, “Roberts, Alito face touch choice on whether to attend State of the Union.” Reported Fox News, “Supreme Court Justices Could be No-Shows for Obama’s State of the Union Address.” In Slate, Dahlia Lithwick wrote a commentary entitled, “Should They Stay or Should They Go?”
In advance of Justice Scalia’s scheduled speech today, The Caucus blog of the New York Times wrote:
“Critics — The New York Times included — have said the arrangement could raise the specter of collusion between conservatives members of the Court and Congress, and lead to further political polarization of the Court.” Read more
The backlog of vacancies in the federal judiciary is serious enough to have grabbed the attention of a British current affairs magazine, The Economist.
In an article entitled “Judge Not,” the magazine first recaps various theories of who’s to blame (whether Senate Republicans, or President Obama, or both) and then moves to spotlight the problem of having 110 vacancies out of 876 federal judgeships:
“The eastern district of California has a thousand-case pile-up. Border courts in Texas, dealing with drugs and immigration cases, are overwhelmed. The small but important district of Delaware, where many companies are incorporated, is making do with just two federal judges, causing havoc in the various commercial cases. Bill Robinson, the incoming president of the American Bar Association, says that the quality of justice inevitably suffers: ‘Witnesses die, memories fade.’”
Even in this climate the “general Democratic public” is not exercised, the article continues. How to reduce the backlog? The article only hints at one possible option, alluding to a strategy pursued by President George W. Bush:
“Mr Bush effectively used the bully pulpit to call for an ‘up-or-down’ vote on all his nominees at once, leading to a confrontation but ultimately a compromise with Democratic senators in 2005. Dozens of Mr Obama’s nominees are still waiting for something similar.”
To learn more about the judicial vacancy backlog and the debate about reducing it, see Gavel Grab.
The political clock is ticking for confirmation votes this year on a number of President Obama’s judicial nominees.
The Senate, now on recess, has sent back to the White House five of the more contentious nominations including that of federal appeals nominee Goodwin Liu. The nomination of Liu, a Berkeley law professor, may be the most controversial of Obama’s judicial appointments, according to a NPR report.
You can learn more about Liu from Gavel Grab; Republicans have blocked his nomination for months. Assuming the nomination is re-submitted by the White House when the Senate returns in September, its future is quite uncertain. Overall, about 100 federal judgeships are waiting to be filled.
In a separate NPR piece, Ron Elving examines recent national issues of great importance and divisiveness that have simmered over in federal courtrooms, including gay marriage and immigration law, and he suggests that for now, at least, some federal judges have risen into the spotlight from their more typically obscure benches. This may also bear on the partisanship in the Senate on judicial nominations, he says: Read more
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