After a state legislator called for the impeachment of five Oklahoma Supreme Court justices, Justice at Stake on Thursday deplored “rash threats against sitting judges.”
“Threats to impeach judges have unfortunately become the go-to weapon of those seeking to intimidate and control the judiciary,” Bert Brandenburg, JAS executive director, said in a statement.” This sensitive situation in Oklahoma calls for rational analysis, not rash threats against sitting judges.”
Brandenburg continued, “The risk of these repeated attempts to bully judges, which we have seen in other states, is that they create a political circus around the judiciary. Every few weeks we hear of a new one, and the cumulative effect is to encourage an atmosphere of disrespect and turmoil that is detrimental to judges doing the work we trust them to do: applying the rule of law even-handedly to hard decisions that must be made under intense pressure.”No comments
The newest debate about whether a Supreme Court justice should recuse from involvement in a case focuses on Justice Antonin Scalia. There are divergent opinions as to whether he should recuse from voting in a case challenging a Massachusetts law providing a 35-foot buffer zone around abortion clinics.
Justice Scalia’s wife, Maureen Scalia, has worked previously and “may still be working” for a crisis pregnancy organization with a direct interest in the case about buffer zones, which protect abortion clinic workers and patients, states Amanda Marcotte in a Slate blog. Her post is headlined, “Justice Scalia Should Recuse Himself From the Abortion Clinic Buffer Zone Case.”
A Salon essay by Lauren Rankin is entitled, “Scalia’s recusal dilemma: Is he conflicted on antiabortion ‘sidewalk counselors’?” It gives differing points of view on the topic, including that of law professor James Sample. He does not call on the justice to recuse but says “that he — and we — would be well served by an explanation of his decision not to recuse (or to recuse) similar to the way in which he explained his thinking vis-à-vis his contacts with Vice President Cheney” in the context of a case some years ago. Read moreNo comments
Now a Bloomberg News article sizes up his record to date with the good news/bad news headline, “Obama Irks Allies in Judge Picks as Diversity Hits Record.” It touches on news mentioned in earlier Gavel Grab posts about diversity (click here) and about some nominations that rankle Obama allies (click here).
The article reports that Obama has surpassed his predecessor, President George W. Bush, for the number of judges confirmed to the bench at a corresponding point in his two terms. Forty-four appeals court and 189 district court nominees picked by Obama have been confirmed by the Senate, compared to 43 appeals court and 187 district court nominees chosen by Bush.
Regarding diversity, the article reports these Obama milestones:
- Women make up 42 percent of Obama’s confirmed judges, versus 22 percent during the Bush administration and 29 percent during President Bill Clinton’s;
- Racial and ethnic minorities are 36 percent of Obama’s confirmed picks, versus 19 percent under Bush and 25 percent under Clinton;
- Eight of Obama’s confirmed judges are openly gay, versus zero under Bush and one under Clinton.
In a lengthy Atlantic commentary, legal journalist Andrew Cohen shines a light on an unusual rule governing jury trials in Louisiana and only one other state, Oregon. The rule permits a verdict without a unanimous jury.
The U.S. Supreme Court will decide in a conference on Friday whether to take up one of several cases asking for review of the Louisiana statute. Cohen presents history and case law outlining an argument that in Louisiana, the non-unanimous jury verdict rule was “born of white supremacy,” has in fact denied access to justice to some defendants through a “flawed” system, and warrants overturning. It takes 10 out of 12 jury votes to convict a defendant in Louisiana. Cohen writes:
“What does this rule really do? It increases by a significant degree the odds of a conviction following trial. But it also means that prosecutors can comply with their constitutional obligations to permit blacks and other minority citizens to serve as jurors but then effectively nullify the votes of those jurors should they vote to acquit. That precise scenario has happened in some cases that ultimately resulted in wrongful convictions. The Supreme Court has the opportunity to finally end this practice, which is unjust both in its intent and its effect.”
In these other dispatches about fair and impartial courts:
- Serial litigant John Jay Hooker’s request for a special Tennessee Supreme Court panel to rehear his case, challenging the constitutionality of the way judges are selected, was rejected, the Associated Press said; for background about the panel’s earlier ruling, see Gavel Grab.
- A New York Times editorial found “encouraging” a new Obama administration push to consider clemency requests by thousands of U.S. inmates convicted of drug offenses (see Gavel Grab).
Washington Gov. Jay Inslee ought to make it his top priority to consider racial and ethnic diversity when he names a temporary replacement for a state Supreme Court justice who is stepping down, an Olympian editorial says.
“Women hold five of the remaining eight seats on the court, but only Justice Steven Gonzalez reflects people of color,” the editorial says. It elaborates:
“Minorities in this state have always been underrepresented on the high court and as well on most lower court benches. Considering the evidence of racial preferences in voting during the 2012 election of Gonzalez, primarily in Eastern Washington, there’s a strong argument for giving a minority candidate a campaign advantage that could help even the score.” Read more
The Oklahoma Supreme Court lifted stays of execution it had issued earlier for two inmates, an action that had put it at odds with Gov. Mary Fallin (see Gavel Grab). In the legislature, one member called for impeachment of the five justices in the Supreme Court majority when the stays were issued.
The high court issued on Wednesday a decision finding that the two convicted murderers do not have a constitutional right to be informed of the source of the lethal drugs that will be used to execute them, according to the Associated Press. Earlier in the week, the high court had voted 5-4 to issue the stays of execution, pending a hearing on the secrecy issue; its ruling then was in conflict with the Oklahoma Court of Criminal Appeals.
State Republican Rep. Mike Christian, a former Oklahoma Highway Patrol trooper, said the five justices who granted the stays of execution were guilty of a “willful neglect of duty,” and he drafted a resolution seeking their impeachment in the Republican-controlled legislature, a separate Associated Press article said. Read moreNo comments
Oklahoma Gov. Mary Fallin (photo) said the state Supreme Court has exceeded its authority by staying the execution of two inmates. An outside death penalty expert, Richard Dieter of the Death Penalty Information Center, said Oklahoma “is teetering on a real constitutional crisis.”
The inmates have challenged a secrecy protocol involving the source of lethal injection drugs used by the state. The state Supreme Court stay put off the inmates’ executions until a hearing is held on their lawsuit, the Associated Press reported.
Of the state’s two high courts, the Supreme Court typically has authority over civil disputes, including the constitutionality of state laws, and the Court of Criminal Appeals is the top court for criminal cases, the Tulsa World said.
The governor said in an executive order, “While I have great respect for the honorable men and women of the Supreme Court, this attempted stay of execution is outside the constitutional authority of that body.” She said she was exercising her own constitutional authority to grant a stay of execution to one of the men; she didn’t mention the second. She directed Read more
In these other dispatches about fair and impartial courts:
- Washington Post columnist Ruth Marcus wrote that when a Supreme Court justice is weighing the timing of a retirement decision, the appearance of “undue politicization of an entity supposedly above politics, of gaming the system for ideological ends,” ought to be among competing concerns considered.
- State court systems often are slow to embrace the digital era, yet Massachusetts courts are launching a pilot program to permit attorneys to file legal papers electronically, the Boston Globe reported. It quoted an expert at the National Center for State Courts, a JAS partner organization, about the need for investment money to help courts take a “big leap forward.”
- The National Judicial College, a JAS partner organization, awarded former Rutherford County (Tenn.) Judge Don R. Ash its Advancement of Justice Award, according to The Daily News Journal.
A federal marshal’s fatal shooting of a defendant who lunged at a witness with a pen in a Salt Lake City, Utah courtroom (see Gavel Grab) is a reminder of the ever-present possibility of courthouse attacks, a federal judge told the Associated Press.
“You can’t be a judge very long without having a trial that presents concerning situations,” U.S. District Judge Marsha Pechman of Seattle, Washington said. “We handle them by talking them through with the marshals. … This sounds like something that could have happened at any courthouse, at any time.”
The Utah courthouse opened its doors just last week with numerous security improvements over older courthouses. The AP article was headlined, “Courthouse violence unpredictable despite security.”
Meanwhile a Des Moines (Iowa) Register editorial mentioned the Utah shooting as it called for the legislature to help counties foot the bill for court security improvements around the state.