Gavel Grab

The first comprehensive national study of spending on judicial elections in the 2000-2009 decade continues to be cited. Today, major editorials in The Washington Post and Detroit Free Press cited “The New Politics of Judicial Elections 2000-2009: Decade of Change.”

Last week, the report was cited in a Philadelphia Inquirer editorial, as well as reports in The Washington Post, National Public Radio, and numerous regional newspapers and radio programs.

Today’s Washington Post editorial, titled “Judges for Sale,” decries “the increased politicization of the judicial selections process” and proposes merit selection as the best reform for decreasing the impact of special interests on the courts. The editorial concluded by noting the special, impartial role of courts in our democracy:

“Unlike lawmakers, judges must never have agendas or special loyalties to anything other than the rule of law. … Allowing would-be judges to beg for cash and to make campaign promises about how they will decide cases tarnishes an institution that must be above reproach.”

The Free Press editorial, “Appoint, not elect, Michigan judges,” said bluntly:

“Justice is for sale in Michigan. … If the deep-pocket interests spending that money (organized labor, business and others with private hopes and aspirations for the judiciary) didn’t think they were getting something from the courts in return, well, they wouldn’t spend it, would they?”

The New Politics report also was cited in editorials by the Chicago Sun Times and the Scranton Times Tribune, which all called for various reforms in how judges are chosen.  And it was the basis of a Free Press column by Ron Dzwonkowski.

“The New Politics of Judicial Elections 2000-2009: Decade of Change,” with a foreword from retired Justice Sandra Day O’Connor, showed that high court candidates raised $206.9 million in 2000-2009, more than double the $83.3 million raised in the 1990s. The first national study of judicial spending in the 2000-2009 decade was written by Justice at Stake, the Brennan Center for Justice, the National Institute on Money in State Politics and Hofstra University law professor James Sample.

To learn more, see Justice at Stake’s online resource page, or see this earlier Gavel Grab posting.

Big names led by retired Supreme Court Justice Sandra Day O’Connor are backing a push for merit selection of judges in Nevada.

That’s despite a recent poll reporting that 54 percent of voters said they would vote “no” in November, Jane Ann Morrison writes in a Las Vegas Review-Journal column, the second of her recent commentaries about the merit selection proposal.

Justice O’Connor has championed merit selection in states around the country since her retirement from the court, and she has agreed to be honorary chairwoman of the drive in Nevada.

This selection approach combining appointment and retention (up-or-down) elections for judges is not perfect, Justice O’Connor has said in speeches, but it works better than the alternative, it helps to preserve judicial independence and for the most part, to shield the courts from politics. Read more

A solid majority of Pennsylvanians–62 percent–favors replacing contested elections for appellate judges with merit selection, according to a poll conducted for Pennsylvanians for Modern Courts, a partner of the Justice at Stake Campaign.

In discussing their views, 73 percent told pollsters they do not think the most qualified candidates currently win elections for the bench, and 76 percent believe campaign contributions influence judges’ decisions, according to a PMC press release.

Moreover, an overwhelming majority–93 percent–say they want the opportunity to vote on whether Pennsylvania should change the way it picks appellate court judges.

Justice at Stake was among sponsors of the poll, which was released at a news conference that included participation by Pennsylvania Gov. Ed Rendell and former governors Tom Ridge, Richard Thornburgh and Mark Schweiker, according to the blog of Judges on Merit, sponsored by PMC.

“During the last decade, high court candidates around the country raised more than $206 million, much of it from parties who appear before them in court,” said Bert Brandenberg, JAS executive director.  “Merit selection is moving forward in Pennsylvania and around the country because Americans want judges to be accountable to the law, not campaign supporters.” Read more

A campaign by a coalition of religious conservatives to oust four incumbent judges in San Diego County, California, helps make a strong case for an end to state judicial elections, a national legal commentator writes.

Andrew Cohen, legal editor for CBS News Radio, offers his critique in a commentary published by Politics Daily entitled, “The Case Against Judicial Elections: Keep Politics out of the Law.”

Regarding the San Diego County campaign (see Gavel Grab), Cohen singles out one of the challengers–attorney Craig Candelore–who said, “Judges are not supposed to make the law, they are supposed to uphold the law passed by legislators in Sacramento. When judges do not follow the law they do not follow our value.”

Cohen is sharply critical of Candelore, saying, “There is no room in any reputable judicial system for the lowly ‘political’ standard that partisans like Candelore wish to place upon the courts.” Cohen adds about jurisprudence:

“Actually, what judges are supposed to do is evaluate the language of statutes to ensure it comports with constitutional guarantees. No court worthy of respect could follow Candelore’s ‘rubber-stamp’ test.”

Cohen concludes by quoting from retired Supreme Court Justice Sandra Day O’Connor’s recent column outlining arguments for merit selection of judges:

“When you enter one of these courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law. In our system, the judiciary, unlike the legislative and the executive branches, is supposed to answer only to the law and the Constitution.”

To learn more about Justice O’Connor’s advocacy for merit selection, visit Gavel Grab. To learn about appointment and retention systems, check out Justice at Stake’s issues page on the topic.

A Nevada newspaper columnist says she has done her homework. But her toughest votes in Tuesday’s upcoming primary will be cast in the judicial races, and about some of them, she is candidly “clueless.”

There’s little way to know much about contenders in some of the open seats, Jane Ann Morrison confides in the Las Vegas Review-Journal. So she asked an attorney friend, and he didn’t know about them. But he did give some advice that the author likes, in support of a merit selection system for appointing judges:

“While it’s not perfect and both systems have flaws, he said with merit selection ‘there are fewer turkeys and fewer crooks on the bench.’

“Oh, there are still turkeys and crooks who make it under merit selection, but their numbers are smaller. That’s progress.”

In Nevada, voters will consider in November whether to scrap elections of Supreme Court justices and District Court judges when a vacancy occurs, and replace elections with what is widely called the Missouri Plan, a system of appointments and retention (up-or-down) elections (see Gavel Grab). Read more

What is the value of a well-told story to drive home a point? It can have real impact, judging from the Wisconsin State Journal’s spotlighting an anecdote told by Justice John Paul Stevens for its editorial questioning judicial elections.

On a recent visit to Ohio, the retiring Supreme Court justice questioned the practice of states electing judges. He pointed to a case where he cast a vote as an appeals judge that might be found unpopular, but he was secure in the knowledge he had life tenure (see Gavel Grab).

The Wisconsin State Journal editorial noted that the decision came in a case involving a Milwaukee priest, Father James Groppi, and his brief takeover of the state Assembly chambers to rally against welfare cuts in 1969. A legislative contempt citation against Groppi, who was unpopular, was upheld by the elected state Supreme Court.

When Stevens considered Groppi’s appeal, he voted to toss out the conviction on grounds Groppi had not been accorded his due process rights, and the U.S. Supreme Court later vindicated that position, according to the editorial, entitled “Stevens offers stark example.”

The editorial also pointed to objections or concerns about state judicial elections raised earlier by retired Supreme Court Justice Sandra Day O’Connor, a champion of merit selection of judges, and by Justice Ruth Bader Ginsburg. It concluded:

“Momentum is growing for reform in which justices are selected for their experience and independence, not for their ability to raise money, court the special interests and charm voters.”

To learn more about appointment and retention systems for selecting judges, called merit selection, check out Justice at Stake’s issues page on the topic. To learn more about Justice O’Connor’s support for merit selection, click here for Gavel Grab posts, and to read about Justice Ginsburg’s views, click here for Gavel Grab.

Retired Supreme Court Justice Sandra Day O’Connor lays out a vigorous and detailed argument for merit selection of state judges in a New York Times commentary, headlined “Take Justice off the Ballot.”

Only last week, Justice O’Connor was feisty when she lit into big special-interest spending in judicial elections before a Chicago Bar Association audience.

Recalling a $9 million state Supreme Court election, where the winner received his largest donations from a company with an appeal pending before the court, she asked the audience, ‘You like that?’”

The op-ed piece takes a more explanatory approach to reform through merit selection of judges. It maintains that “citizens are being shortchanged by the way…judges are chosen” in too many states, and it is time to strike a balance between lifetime appointments at one end of the selection spectrum and partisan elections at the other:

“A better system is one that strikes a balance between lifetime appointment and partisan election by providing for the open, public nomination and appointment of judges, followed in due course by a standardized judicial performance evaluation and, finally, a yes/no vote in which citizens either approve the judge or vote him out. This kind of merit selection system — now used in some form in two-thirds of states — protects the impartiality of the judiciary without sacrificing accountability.” Read more

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

Wall Street Journal/Law Blog: Kagan’s 2003 Speech: A Window Into Her Views on Judging?
Nathan Koppel – 5/21/2010

National Catholic Review: Kagan’s Paper Trail (or Lack Thereof)
RICH DALY – 5/24/2010

Las Vegas Review Journal: Government censors don’t belong on Supreme Court
THOMAS MITCHELL – 5/23/2010

The Trentonian: Can free speech be redistributed?
NAT HENTOFF – 5/22/2010

National Journal: Bonfire Of The Inanities
Eliza Newlin Carney – 5/24/2010

Washington Post: Elena Kagan goes on Supreme Court confirmation offensive in drab D.C. clothes
Robin Givhan – 5/23/2010

Huffington Post: Tell the Truth, Nominee Kagan: Red Sox Supporter, or Yankee Hater?
Billy Altman – 5/21/2010

Read more…

Retired Justice Sandra Day O’Connor assailed big special-interest spending in judicial elections when she addressed a Chicago Bar Association audience.

Urging an end to state judicial elections and their replacement by merit selection, according to a Chicago Sun-Times article, Justice O’Connor recalled a high-spending Illinois Supreme Court race from 2004:

“It cost just over $9 million for that race. As you might have guessed, the winner of that race got his biggest contributions from a company that had an appeal pending before the Illinois Supreme Court. You like that?”

After Justice Lloyd Karmeier won election, he voted in favor of throwing out a $1.2 billion class-action lawsuit against a company that had given him $350,000, State Farm Insurance. His vote was part of a unanimous court decision.

“Sounds a lot like the Caperton case, doesn’t it?” Justice O’Connor asked. A coal company executive spent $3 million in that case to  elect a West Virginia Supreme Court justice. The U.S. Supreme Court later said it was a violation of due process rights for the justice to hear an appeal by the coal company.  Justice O’Connor added:

“The single greatest threat [to the judiciary] is the flood of money coming into our courtrooms by way of increasingly expensive and volatile judicial campaigns.”

You can learn more about the problems posed by multimillion dollar, special-interest spending in judicial elections from Justice at Stake reports including “The New Politics of Judicial Elections,” available from links at our Web site resources page. Click here for a JAS page discussing the pros and cons of elections versus judicial appointments, and here to learn more about appointive and retention election systems, often called “merit selection.” You also can learn about the Caperton case from the JAS resource page about it.

Add retiring Justice John Paul Stevens to the growing list of current and former justices who have publicly questioned the practice of electing judges.

Justice Stevens on Wednesday “suggested that the federal system of appointed judges who hold life tenure promoted judicial independence better than popular election of judges,” the Wall Street Journal’s Washington Wire blog reported.

When he sat on a federal appeals court in the 1970s, he cast his vote to toss out a conviction that an elected state supreme court had upheld, Justice Stevens said.

“I remember thinking, ‘I have life tenure,’” Justice Stevens said, and if he voted in an unpopular way, there would be no punishment. He had thought “a great deal” about the case, Justice Stevens added, as it showed a contrast between the perspectives of elected and life-tenured judges in viewing some issues.

Retired Supreme Court Justice Sandra Day O’Connor has traveled the nation championing an end to state judicial elections (see Gavel Grab) and their replacement by merit selection, in order to insure an independent judiciary. In March, Justice Ruth Bader Ginsburg said she believed states should end the practice of electing judges (as Gavel Grab reported here).

Justice Stevens discussed his thinking in Columbus, Ohio, where he was present for a conference of lawyers and judges in the Sixth U.S. Circuit Court of Appeals.

An article in USA Today discussed Justice Stevens’ changed view on the constitutionality of capital punishment. His disagreement with the practice of senators trying to pin down a nominee’s legal views was the topic of an Associated Press story.