An opinion piece in the Los Angeles Times by legal journalist Andrew Cohen says judges in Alabama are overruling juries decisions and imposing the death penalty as a way to appease the electorate.
The piece titled Politics, not justice, in Alabama death penalty cases, cites the dissent of Supreme Court Justice Sonia Sotomayor after the High Court declined to hear an Alabama case in which a jury voted 8 to 4 to give the defendant a life sentence for murder, only to see that result overturned by a judge.
“Alabama is one of only three states that give judges this override power in capital cases, and it is the only state in which judges regularly use that power to enhance sentences, said Cohen.
Cohen believes judicial elections are a major part of the problem.
“This is the strongest argument I have heard yet against judicial elections, the very existence of which undermine confidence in the impartiality of the judiciary. Any judge who has to beg future litigants for votes, or who has to promise her constituents that she will employ a particular doctrine or ideology, is tainted. It’s bad enough that judicial elections taint civil justice in states such as Texas. That they taint life-or-death decisions in Alabama is simply deplorable.”
“Texas needs judicial reform,” declares the headline for an Austin American-Statesman editorial condemning the state’s current system for picking judges. “[N]o system is as unfavorable to justice as the partisan election of judges,” the editorial asserts.
What’s wrong with partisan judicial elections? The editorial says:
“Campaigns are expensive, and judges must seek contributions to run for office. Naturally their major donors tend to be lawyers, businesses and corporations — people and entities that often appear in court before them. It is a system flush with potential conflicts of interest. Thus it also is a system that harms the public’s confidence in justice and judges alike.” Read more
Judges and the general public are wary of the money being poured into partisan judicial elections in Texas, ramping up talks of reform.
The Texas Tribune interviewed Bert Brandenburg, executive director of Justice at Stake, and David Lyle, senior counsel for state advancement at the American Constitution Society, to discuss money in the courts.
“The fear [judges] have…is that what it means to elect a judge is changing under our feet. They’re forced to dial for dollars from people who then appear before them in court and in every controversial case, they have to look over their shoulder. … And there is a fear that the public believes that justice is for sale,” said Brandenburg. “Even more chilling … we’ve done polling that shows that nearly half of state judges agree with that statement, that campaigns and cash are affecting courtroom decisions.” (For more information on these polls click here.)
Lyle touched on the fact that a lot of the issues with money in judicial elections relate to business interests.
When advocates interested in changing the method for choosing Texas judges met recently in Austin, they heard from Justice at Stake Executive Director Bert Brandenburg (photo). The advocates are interested in forging a larger, stronger network to achieve change, and Brandenburg spoke of the dangers of partisan judicial elections and of potential reforms.
“We want judges to be accountable to the law and the Constitution, not to special interests and partisans. The money can flip that equation, and that’s the risk,” Brandenburg told the (Austin) American-Statesman.
According to the newspaper, candidates for the judiciary are required to run in partisan elections in Texas, and polls show that voters believe “Texas justice is being sold to the highest bidder.”
Brandenburg said, “If the system is so politicized that they have to be politicians first and judges second … you’ll have a lot of good people who say they’ll pass. Conversely, you start to encourage a category of people who view the judiciary as just another steppingstone to a political career.” Read more
In these other dispatches about fair and impartial courts:
- The U.S. Supreme Court, turning down an emergency application, declined to block new Texas abortion restrictions that have caused a number of clinics to cease providing abortions, according to the Associated Press. The Supreme Court still could revisit the issue later.
- Tennessee’s Judicial Performance Evaluation Commission may recommend against retaining three appeals court judges in advance of elections scheduled for next summer, The Tennessean reported. Such an adverse recommendation by the Commission is rare.
- A (Louisville, Ky.) Courier-Journal article about three retired judges seeking re-election was headlined, “Double-dipping debate may be key issue in Louisville judge races.”
- In a Washington Post op-ed, Harold Meyerson sharply criticized the expenditure of millions of dollars in “dark money,” or funding from anonymous donors, in U.S. elections and laid partial blame on Republicans who blocked a proposed disclosure measure in the U.S. Senate.
MSNBC has featured Justice at Stake Executive Director Bert Brandenburg paired with a former state Supreme Court chief justice in a segment on the Craig Melvin show entitled, “Judges for Sale?”
The recently released “New Politics of Judicial Elections 2011-12″ report disclosed that a record $33.7 million was spent on TV advertising in state court elections during the latest cycle, Melvin said, and he interviewed Brandenburg and former Chief Justice Wallace Jefferson of the Texas Supreme Court about the implications of this soaring spending.
“People spend money because they want something out of the courts,” Brandenburg said, suggesting that the “tort wars” are in turn becoming “the court wars” waged over tilting the scales of justice in state high courts across the country. “In the end,” Brandenburg warned, “the public is wondering, ‘Is Justice for Sale?’”
Former Justice Jefferson said that in Texas, few people actually know the qualifications of numerous judges listed on a ballot, and voters end up casting a ballot along straight-party lines. “That’s why it’s a broken system — accountability doesn’t work in this context,” he said. Read more
A proposed constitutional amendment to raise the mandatory retirement age to 80 for judges on the New York Court of Appeals and Supreme Court was rejected by voters on Election Day.
Sixty-one percent of voters opposed the measure, and 39 percent favored it, with results from 83 percent of precincts available, the New York Times reported. The newspaper discussed numerous political implications and motivations at play in the vote.
It was a “stinging rebuke” for New York Chief Judge Jonathan Lippman, who had advocated for the measure, according to the article, while Gov. Andrew Cuomo had lobbied against it. If adopted, the measure would have reduced Cuomo’s ability to shape the face of the highest court, because it would have lengthened the terms of several judges seated on it.
It was the fourth defeat in a row for proposals to raise state judges’ retirement ages across the country, according to Gavel to Gavel, a publication of the National Center for State Courts. It is a JAS partner organization.
Former Chief Justice of the Texas Supreme Court, Wallace Jefferson has been speaking out against the state’s partisan judicial elections. Texas has an article in the state constitution that calls for judicial elections, a measure that was originally intended to hold those on the bench accountable.
That same constitutional mention required judges to be affiliated with political parties in order to appear on the ballot. A piece that ran on inv.us quoted Jefferson discussing the flaws of partisan judicial races.
“It is a broken system. We shouldn’t have partisan elections. I do not like the concept of a Republican or Democratic judge. I think fundraising undermines the confidence in a fair and impartial judicial system.”
Jefferson actively advocates for measures that help insulate judges from threats to fair and impartial courts. The New Politics of Judicial Elections 2011-2012 report, coauthored by Justice at Stake, the Brennan Center for Justice and the National Institute on Money in State Politics, highlights many of these these threats. Read more and request a copy at http://newpoliticsreport.org.
On Monday, Planned Parenthood asked the Supreme Court to reinstate an order that would prevent Texas from implementing part of a new law that limits access to abortions through heightening the restrictions placed on the doctors performing the procedure. This comes after more than one third of the state’s abortion providing facilities have been forced to halt procedures and drastically reduce their number of patients.
In order to prevent implementation of the law the high court will have to vacate a decision made on Thursday by the 5th Circuit to lift an injunction barring a challenged section of Texas House Bill 2 from taking effect. Courthouse News Service noted that the controversy over the case has included an 11-hour filibuster by Democratic state Senator Wendy Davis, who recently declared her candidacy for Texas governor.
The appeal from Planned Parenthood is directed to Justice Scalia, who covers Texas as the circuit court judge for the region. For more coverage of Texas, see past Gavel Grab posts here.
Since earlier this year, Texas has received a lot of attention over new abortion laws that have been working their way through the legislature and now courts. In a recent development, the U.S. Court of Appeals for the Fifth Circuit in New Orleans has reversed a decision made by a federal judge. The new ruling states that new admitting-privilege requirements should be in effect while the case continues to be argued.
At the beginning of last week the U.S. District Court in Austin declared the added requirements from more restrictive abortion laws to be unconstitutional because it is “without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion.” The appeals panel made the opposite conclusion. A piece in the New York Times states that the law was determined as serving a legitimate state interest in regulating doctors without imposing “undue burden” on the right to abortion, and therefore likely to be constitutional.
As many as 13 of the 36 clinics providing abortions in Texas will have to shut down services. Similar laws in Alabama, Mississippi, North Dakota and Wisconsin have been blocked by courts temporarily. It is believed that a decision will ultimately be made by the Supreme Court, a continuation of a fight over how much say states may have in the restriction of abortion rights since the 1973 Roe v. Wade ruling.