Gavel Grab

In these other dispatches about fair and impartial courts:

• Tennessee Supreme Court Justice Sharon Lee will be presented with the Lizzie Crozier French Women’s Leadership Award this June for her work to advance women in the legal profession. Lee was the first woman to serve on the Eastern Section of the Tennessee Court of Appeals, reports the Knoxville Daily Sun.
• A new Reader’s Digest poll shows that a majority of Americans trust TV judges more than the nine justices on the U.S. Supreme Court. The New York Daily News says that Judge Judy and Judge Joe Brown received a 51 percent and 48 percent trustworthy rating respectively.
• Judges can have license plates that identify them as a member of the judicial branch, but they should think carefully about the rationale for displaying them, says Thomson Reuters News & Insight reports. The New York State Commission on Judicial Conduct released a report Wednesday on judicial plates after New York Judge Diane Schilling allegedly dismissed speeding tickets for herself and a fellow judge’s wife last year.

Tennessee state Sen. Mae Beavers, a former Senate Judiciary Committee chairman, recently called the U.S. Supreme Court a “dictatorship” as she pushed for a nullification bill she had introduced.

Her remark was highlighted in an article by ProPublica about some states considering making it a crime to enforce federal gun laws, and invoking a doctrine from before the Civil War called nullification. Some state bills contend the Supreme Court does not have final authority to determine a law’s constitutionality, and that states have that authority.

Beavers is a Republican. Here is an excerpt from her full remarks in February, as reported in The Tennesseean:

“I know many of you are lawyers. You’ve been to law school. You think that the Supreme Court is the ultimate arbiter of any of these laws. I don’t believe that. I don’t believe it was ever granted the authority under the Constitution. In Marbury v. Madison, they simply gave themselves that power. They declared themselves to be the ultimate arbiter of what is and what is not constitutional, and essentially setting themselves up as a dictatorship within the federal government, and I think generation after generation we have just accepted that. Read more

Because of controversy over the best way to select top judges, Tennessee will soon enter a period without a mechanism for replacing jurists who quit or retire, some state lawyers say. An Associated Press article recaps the situation and reports differing views about what may happen.

Tennessee’s legislature recently completed its work without extending the life of the state’s Judicial Nominating Commission, which now is set to go out of business after June 30 (see Gavel Grab). Next year, voters will be asked to approve or reject a proposed constitutional amendment to give the governor unilateral power to pick judges, subject to confirmation by the legislature.

“It makes for a complicated mess, although we’ve heard the distinct possibility that something will be done early in the next legislative session” said Tom Lawless, who chairs the Judicial Nominating Commission.

Read more

Earlier this month, the Tennessee Legislature adjourned without renewing the state’s Judicial Nominating Commission. The panel is responsible for interviewing appellate court applicants, and recommending three names to the governor, who chooses one to appoint.

By not renewing the commission, the Legislature failed to fulfill the state’s business at a basic level, argues a Knoxville News Sentinel editorial.

The commission will be terminated on July 1, and without it, Tennessee has no constitutional method in place to replace a judge who resigns, retires or dies in office, said executive director of the Tennessee Bar Association, Allan Ramsaur (see Gavel Grab). Read more

When the Tennessee legislature finished work on Friday, it let die a measure written to extend the life of the state’s Judicial Nominating Commission, which now is set to go out of business after June 30.

A Knoxville News Sentinel article reported that Bar Association Executive Director said the legislation’s death means there will not be a procedure to fill a vacancy if a judge quits, dies or retires after the commission shuts down.

Earlier this year, the legislature approved a proposed constitutional amendment to dismantle merit selection for choosing top judges. The proposal would give the governor unilateral power to pick judges, subject to confirmation by the legislature. Judges later would face a retention (up-or-down) election to stay on the bench.

The proposal  will come before voters in next year’s general election. Justice at Stake warned that the proposal would “inject partisan politics into the state’s judicial selection process.”

Read more

The New Jersey Senate’s “stonewalling” of Gov. Chris Christie’s judicial nominees has left the state Supreme Court significantly weakened, according to a Trenton Times column by George Amick.

Amick writes that vacancies on the state’s highest court have grown from one in 2010 to two last year and possibly three in October ”because of a partisan stalemate reminiscent of the governmental dysfunction in Washington.” New Jersey has a Washington-style system whereby the governor’s court appointments are subject to Senate confirmation.

Senate foot-dragging in confirming nominees, he writes, “has left the state Supreme Court, the capstone of a judicial system that once was considered a model for the states, weakened for most of Gov. Chris Christie’s three-plus years in office.”

Christie is a Republican. The Senate president, Steven Sweeney, is a Democrat. Amick portrays their discord this way: “Lately, they’ve been exchanging verbal shots, with Sweeney accusing the governor of wanting to ‘pack’ the court with like-minded jurists and Christie suggesting that the Senate president forgo his paycheck because he isn’t doing his job.” Read more

The Oklahoma Senate has approved 33-13 a proposed constitutional amendment that would eliminate merit selection of judges. Oklahoma’s House has not voted yet on the proposal.

The vote represented the latest in a series of state capital assaults on merit selection this week. Gavel Grab has chronicled similar moves in Kansas (click here) and Tennessee (click here) toward adoption of federal-style systems, and the concerns that have been raised by Justice at Stake.

The Oklahoma measure would gut the role of a judicial nominating commission and give the governor greater influence in picking judges, and it would make his appointments subject to state Senate confirmation (see Gavel Grab).

The Tulsa World reported that proponents advocated the shift as a way to lessen political influence exercised within the nominating commission, while critics contended that by introducing Senate confirmation, it would bring politics into the process. Read more

In these other dispatches about fair and impartial courts:

• Retired Supreme Court justices such as Sandra Day O’Connor continue to have an impact on court decisions nationwide long after they choose to step down. A Washington Post article describes O’Connor’s work on lower federal courts, including one case on voter registration which the U.S. Supreme Court is scheduled to review.
• With legislation for Tennessee’s Judicial Nominating Commission set to expire at the end of June, Tennesseans should either amend the constitution to reflect the current judicial selection system, or let voters elect their judges, argues a Tennessean column.
• Indiana Chief Judge John Pera is planning to send a written response to Lake Juvenile Court Judge Mary Beth Bonaventura after she requested that her replacement to the bench be chosen through merit selection, reports the Northwest Indiana Times. Traditionally, Bonaventura’s replacement would be a transfer from another court, the article says.
• Former al-Qaeda spokesman Sulaiman Abu Ghaith was charged with conspiracy Friday in a New York federal courtroom. A Washington Post op-ed says that he could have been left in “indefinite legal limbo” if tried by a military tribunal in Guantanamo Bay; the alternative, a trial in federal court, “would have greater legal and political legitimacy both here and internationally.”
• Accused criminals connected to the 9/11 attacks should be tried in U.S. federal courts, not military tribunals at Guantanamo Bay, argues Donna Marsh O’Connor in the Huffington Post. O’Connor’s daughter died on 9/11, and the families who lost loved ones that day deserve a day in federal court, she says.

Tennessee’s judicial branch should be viewed as fair and impartial by the public, with qualified judges who are not swayed by political contributions, states Tennessee Bar Association President Jackie Dixon in a Tennessean opinion.

The Tennessee General Assembly adopted a system of merit selection in 1971 for appellate judges, utilizing a judicial nominating commission to vet candidates for vacant judgeships. In 1994, lawmakers expanded the system to include Supreme Court and trial judges, Dixon says.

Now, the Tennessee Judicial Nominating Commission is set to expire on June 30, leaving the “judicial system at risk”, Dixon says. Tennessee needs the commission in order to quickly fill judicial vacancies, she argues. Read more

In these other dispatches about fair and impartial courts:

• Supreme Court Justice Ruth Bader Ginsburg couldn’t quite stay awake Tuesday night during President Barack Obama’s State of the Union Address. According to the Washington Post’s In the Loop, Ginsburg seemed to be nodding off at times and Justices Stephen Breyer and Anthony Kennedy would nudge her occasionally.
• The Tennessee Supreme Court declared this week that it will give special recognition to lawyers who do a minimum 50 hours of pro bono work. The Associated Press says this is part of the court’s Access to Justice program, which seeks to provide legal support for Tennesseans that can’t afford it.