Should Politics Dictate Judicial Retirement?

In an editorial piece for  the Constitution Daily , the blog of the National Constitution Center, veteran legal analyst Lyle Denniston examines a quote from Washington Post columnist Jonathan Bernstein.  Bernstein had urged current Supreme Court Justices Ruth Bader Ginsburg and Stephen G. Breyer to retire in order to protect their legacies.

Denniston notes that resigning  from a seat  on the highest court in the land can be a very difficult decision. There is often pressure from media and political figures to retire when a particular party is in power. The editorial points out that this can often contribute to the seemingly partisan nature of the judgeships. “In a political era in which Americans are so deeply polarized about their public policy goals, it is easy to overlay that polarization on the courts,” Denniston writes.

Denniston goes on to quote Alexander Hamilton from Federalist Paper No. 78., stating that his enduring words embody the idea that courtrooms should be free from bias and political pressure

North Carolina's Court System Suffers Financial Burden

An editorial in the Asheville Citizen Times urges the state to restore funding for  North Carolina’s courts. The battle for more funding will be an uphill battle, the editorial notes, observing that “Funding of courts is a hugely important issue, but not one that fits on a bumper sticker or excites crowds on the campaign trail.” Under the current system, counties are obligated to provide for the physical facilities of the courts, and the state is supposed to pay for personnel.  However, the 2011-2012 General Assembly eliminated funding for 200 full time positions and 61 magistrates.

The editorial warns that without help from the state, local courts may be forced to seek other methods of raising money that potentially hurt the justice system. These could include raising fees, which would deny access to the courts for those who have little money, or seeking funds from other donors, which creates  the potential for corruption in the court room.


Wednesday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • iCivics, the nonprofit civics education organization run by Justice at Stake Honorary Chair Justice Sandra Day O’Connor, will convene a national Teachers Council in Washington, DC, in the summer of 2014,  according to Tribune Interactive. The Tribune report notes that an Alabama middle school teacher is among those selected for the Council.
  •  WDDE reports that Delaware’s Judicial Nomination Commission has officially submitted four candidates to Gov. Jack Markell to consider for Delaware’s next Supreme Court Chief Justice. The four candidates are Delaware Supreme Court Justice Carolyn Berger, Superior Court Judge Jan Jurden, Court of Chancery Chancellor Leo Strine Jr. and Superior Court President Judge James T. Vaughn Jr. One of these candidates will replace Myron Steele, who stepped down from the position last month. Gov. Markell is expected to make his nomination and submit it to the senate in January when the General Assembly returns to work.

Editorial: North Carolina's Court System is in Crisis

An editorial in the News & Observer has concluded that North Carolina’s court system is in crisis. The courts are overloaded with cases, the court’s computer system needs to be updated, and an additional 700 people need to be hired. While both sides of the aisle can agree there is a crisis, neither side of the state legislature can agree on how to solve it, the editorial says.

Politicians on both sides of the aisle argue for different plans to help the courts run more efficiently. Republicans want to cut the budget of the court system, while Democrats believe providing the courts with more money is the way to increase efficiency of the court. The editorial says:

“A shortage of 700 people in a system in which there are 6,000 employees is a crisis not coming, but one that has arrived.”

Legislators Unveil Bill for Merit Selection in Pennsylvania

The Pennsylvania Record reports that State Rep. Bryan Cutler, R-Lancaster, and State Rep. Brian Sims, D-Philadelphia are joint sponsors of  a House measure that would eliminate Pennsylvania’s current system of electing judges and replace it with a merit selection process. The sponsors say the measure would allow judges to be chosen on the basis of their qualifications rather than on fundraising ability. The House measure, if passed, would be the first step in a constitutional amendment process that could take several years.

“I believe that it is time to have a conversation about how we select our judges,” Cutler said in a statement read at the news conference. “I personally believe that the integrity of our justice system requires that we select judges based on more than voter turn-out, name ID or fundraising ability. I believe we should be looking for the members of the bar with the highest qualifications, not just the best political skills.”

The bill has support from a number of citizen groups including the League of Women Voters and Pennsylvanians for Modern Courts (a JAS partner organization).  Former  Governor Ed Rendell, a Democrat, and Tom Ridge, a Republican, also voiced support.  In a related story, The Intelligencer reported that a 2010 survey by the American Judicature Society found that “more than 7 in 10 Pennsylvanians polled said that they did not believe the most qualified candidates win elections, and that they suspected campaign contributions influence the decisions judges make.”


Signs Positive for Judicial Selection Reform in Minnesota

Minnesota Lawyer reports today that a bill  to reform the state’s method of judicial selection has a good chance of being taken up by the legislature next year.  The measure has broad support from a coalition that includes the Minnesota Chamber of Commerce and the AFL-CIO.

In addition to replacing contested elections with retention elections for sitting judges facing another term, the proposal would institute a merit system for initial selection of judges and a public performance evaluation process (see Gavel Grab).  The package of reforms, known as the Impartial Justice Act, must pass both the Minnesota House and Senate before heading to voters.

Minnesota Lawyer also notes that “outside interest groups spent at record levels in the 2011-2012 judicial election cycle,” citing information first reported in The New Politics of Judicial Elections report by Justice at Stake and the Brennan Center for Justice.  One sponsor of the Impartial Justice Act said such reports of high spending make it especially important to enact reforms now, before the spending race reaches Minnesota.  “Once people know they can buy a judicial election, it’s going to be very hard to say sorry, they are not for sale,” commented State Senator Ann Rest.

Another Judicial Nomination Stalled

As many had predicted, the nomination of Cornelia “Nina” Pillard to the D.C. Circuit Court on Tuesday became the latest to be derailed by a Senate filibuster.  The New York Times reports that Pillard’s nomination failed to clear the 60-vote hurdle required to advance, with a tally of 56 to 41. Pillard’s is the second of President Obama’s nominations to the D.C. Circuit to be blocked by a filibuster in recent weeks, following that of Patricia Millett. One remaining nominee, Robert Wilkins, could face a vote soon.

Meanwhile, the Times reports that Senate Democrats’ frustration with the process has led to “the likelihood — which appeared to grow considerably on Tuesday — that the fight will escalate and result in a change to the Senate rules to limit the minority party’s ability to filibuster judicial nominees.”   But a report in The Hill suggests that support for such a change might still be out of reach, with Senate Majority Leader Harry Reid perhaps unable to muster the 50 votes needed to deploy the so-called “nuclear option.” A senior Democratic aide cited in the piece called the speculation “premature.”

Tuesday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:
  • Debate continues over whether Oklahoma’s system of judicial selection should be altered.  In an op-ed for the Tulsa World, District Judge Kurt Glassco writes that the state’s judicial system is not broken, and does not need to be fixed. He writes that the Oklahoma legislature’s consideration of changes to the way judges are chosen for the courts is motivated by an attempt to “’regulate’ them into submission.”  In an opposing op-ed also in the Tulsa World, Speaker of the House of the Oklahoma General Assembly T.W. Shannon writes that the current judicial system lacks accountability.


Brownback: Judicial Selection Linked to School Funding Fight

The Wichita Eagle reports that recent remarks by Kansas Governor Sam Brownback put the state’s Supreme Court on notice that its future could hinge on a school-funding suit.  The court is set to rule on an earlier decision by a three-judge panel, which found that Kansas is underfunding its public schools.  At an appearance in Wichita, Brownback and state Senate President Susan Wagle suggested that  if the court rules Kansas must increase school funds, legislators  would react by reexamining the system for selecting the court’s justices.

Earlier this year, legislators successfully pushed to alter the process for selecting state Court of Appeals judges, changing it from a merit selection process to a system of direct gubernatorial nomination.  Brownback and allies in the legislature have indicated that they would favor a similar switch for the Supreme Court.  Changing the Supreme Court selection process would be more complicated in that it would require amending the state constitution, which requires  a two-thirds majority vote in both houses of the legislature and approval by state voters.

A Justice at Stake poll commissioned in January found that 61 percent of Kansas voters oppose changing the constitution to alter the way judges are selected (see Gavel Grab).  Although hearings were held on the proposed change in early 2013, legislators failed to garner enough support to move the amendment process forward.

Editorial: Iowa Group 'Bullies' Judges

Election watchers who observed the role played by The Family Leader in Iowa’s judicial retention elections in 2010 and 2012 will note that the group remains active on the court front.  A Des Moines Register editorial  entitled “Family Leader Is Wrong to Try to Bully Judge”  covers recent action by the group, led by conservative activist Bob Vander Plaats.  A column in the same paper by columnist Rekha Basu takes aim at what it calls the group’s “vendetta campaign.”

According to the Register, The Family Leader refers to its part in a successful effort to unseat three Iowa Supreme Court Justices in 2010, in a direct threat against Polk County District Judge Karen Romano.   A recent ruling by Romano holds up implementation of an Iowa Board of Medicine regulation on medication abortions.

In a statement headlined “Remember the Romano,” The Family Leader references the 2010 judicial retention election and warns, “Apparently Judge Romano has not learned a lesson from that vote. The Family Leader encourages Iowans to remember Judge Karen Romano’s activism when she is up for retention in November 2016.

In its editorial, the Register  calls the statement a “pre-emptive attack on a judge” that “should not be tolerated in this state.”