Roy Schotland

The fair courts world has lost one of its founding spirits.  Roy Schotland, Professor Emeritus at the Georgetown University Law Center, passed away on January 26, surrounded by his family.  Long before there was a fair courts field, he was sounding the alarm about how judicial elections were becoming risks to our justice system and our democracy.

Roy was one of those polymaths that the law attracts.  He clerked for Justice William Brennan, practiced law, and taught at Virginia and Penn before coming to Georgetown.  He wrote treatises and other works on administrative law, securities, pensions, election law and campaign finance, and he advised the Federal Reserve Board, the American Bar Association, the National Center for State Courts and numerous state chief justices.  A decade ago, when Justice at Stake decided to give an award for scholarship in the field of fair courts, it appointed a committee of scholars that took very little time in selecting the obvious choice.  We had a nice ceremony to honor Roy at the Harvard Law School, where we were welcomed by Dean Elena Kagan.

Roy was one of life’s connoisseurs, delighting in good stories and interesting language, in food and museums and the giddiness of grandparenting.   He was a careful observer and a tough questioner. And he was something of an old-school blogger, sending out missives (more…)

Honoring Justice Moyer

The flags flew at half-staff in Columbus today to honor Thomas Moyer, who died recently in the final months of his final term, after 23 years as chief justice (see Gavel Grab). The line of mourners spilled out of the Ohio Judicial Center on to the sidewalk, waiting in the cold—38 degrees and gusty—to pay their respects.

Inside the courtroom, a black robe was draped over the chief justice’s chair. Moyer’s wife and family received visitors as the other justices stood nearby. A modest casket, swathed with an Ohio flag, sat up front, just past the railing.

I had come out of admiration and fondness. Justice Moyer was a founding member of Justice at Stake’s board of directors. He relished working for fair courts (“it was his passion,” one judge told me in line). Despite his high perch, Justice Moyer tended to board matters large and small, sending the occasional ‘Thank you’ or ‘Good job’ that showed that yes, he was reading all those e-mails.

At board meetings and national events, Justice Moyer’s was typically the gentlest voice in the room. He never wanted to pull rank, and never needed to. “When I was growing up,” his son Drew told me today, “the lesson he taught was that no matter how famous you are, you only put on your pants one leg at a time.”

Indeed, what struck me was how a variety of people from the legal world—magistrates, specialty court officials, attorneys from the solicitor general’s office—told me the same story. Each was surprised and gratified at how a chief justice could be so conscientious and attentive to his or her issues.


Ohio Chief Justice Dies

Ohio Chief Justice Moyer, a founding member of Justice at Stake’s board of directors, died today. Our deepest sympathies go out to his family and friends. At the time of his death, he was the longest serving chief justice in the United States. He cared deeply about the courts, he was a truly gentle man, and we will miss him very much.

More information about his life can be found at:


Criticizing the High Court: What Is the Line?


In the end, what did this winter’s Obama-Alito confrontation amount to? When a hot Supreme Court case comes along, intertwined with high-stakes politics, interbranch tempers have a way of boiling over. And testiness between courts and the elected branches is part of Beltway life. But the State of the Union spat sucked Washington into one of its favorite games—the kind where no one really wins.

The recent round of acrimony was kicked off January 21, when the Court decided Citizens United, overturning long-standing precedent permitting states and Congress to bar direct spending from corporate and union treasuries into campaigns. For each side, the case raised deep and fundamental constitutional issues.

In such cases, the losing side must struggle to choose the right way to vent its disagreement. Reactions to controversial court decisions are of particular interest to Justice at Stake, which works to protect state and federal courts from partisan threats.

Seen through this lens, much of what followed the Court’s decision soon devolved into another round of political hardball.


Big Business Group Lays Out Preferred Merit Selection Model

One of the biggest players in American judicial politics is highlighting how merit selection of judges can advance its goals. The Institute for Legal Reform, an arm of the U.S. Chamber of Commerce, today offered its support for a merit selection model it believes will promote accountability and quality while keeping judges insulated from raising millions from parties who appear before them.

On one level, this is big news: over the past decade, the Chamber has helped pour millions of dollars into supreme court races. Indeed, some hard-line business players—as well as some of their hard-line counterparts on the trial attorney side—have sought to roll back merit selection systems in order to create more opportunities to install judges who will be more answerable to campaign-trail pressure.

But as we detailed in an article in Slate last year, a silent majority in the business community has long preferred the stability and quality that a well-constructed merit selection system can offer. Many of them are weary of writing bigger checks every election to try to keep up with union and plaintiff’s attorney expenditures, or waging war to change the rules in states that use merit selection to pick some of their judges. (In ballot measures last year, voters in counties in Missouri and Kansas chose merit over contested elections.)

In its report today, ILR released a “best practices” guide for nominating and appointing judges in merit selection states. “The quality of justice in our state courts is of critical importance to the entire business community,” the report begins. The Guide draws heavily on the Arizona system.

The Guide proposes that elements of a merit selection system be “characterized by transparency, diverse participation in the Commission, and opportunities for the public at large to provide input into the process.” It affirms that many in the business community would like a break from the judicial selection wars. They want high-quality judges above all else, and they know that a well-constructed merit selection system is one well-established way to get there.

Update: The Institute was kind enough to invite me to participate in a panel this morning discussing the report. The session was moderated by Tom Gottschalk, chair of the ILR board (and a member of Justice at Stake’s Board of Directors), and also included former Arizona Chief Justice Ruth McGregor, former Colorado Justice Rebecca Kourlis, and Jonathan Bunch, director of the state courts program at the Federalist Society.

In Memory of Judge Sandra Otaka

Judge Sandra OtakaJustice at Stake is saddened to lose one of its board members, Cook County Circuit Judge Sandra Otaka, who passed away June 6.   She was a third-generation Japanese-American whose mother and grandparents were held in U.S. internment camps during World War II.  As a law student, she worked with a legal team to overturn the conviction of Fred Korematsu, a Japanese-American shipyard worker jailed in 1944 for failing to report to an internment camp.  Judge Otaka was the first Asian American Circuit Court judge to be elected to the bench. She was well-known in Chicago and national Asian-American circles, but served with only one national organization—the Justice at Stake Campaign.  She cared deeply about justice, and worked especially hard to promote diversity on the bench.  We miss her dearly, and extend our sympathies to her family and friends.  Her obituary can be found here.

Impeach Judge Bybee? (continued)

In the wake of the release of Justice Department memos about detainee treatment, MSNBC host Rachel Maddow was the latest to talk about impeaching Judge Jay Bybee, a former Assistant Attorney General, Office of Legal Counsel who wrote some of them.  An excerpt, which begins at 7:30 of this video, reads:

MADDOW:  In reading the Bybee memo today, I have to say I am troubled by the fact the guy who reasoned out that waterboarding doesn’t inflict suffering is now a sitting federal judge. Is that forever? Is there any way that that gets undone?

GEORGE WASHINGTON UNIVERSITY PROFESSOR JONATHAN TURLEY:  Only if he resigns or if he’s impeached. It is a very obnoxious thought to think the author of this memo is rendering judgments on American citizens and has lifetime tenure. It is even more disturbing the Democrats did comparatively little to block the nomination, even though they knew he was involved in this controversy. They refused to take steps they could have taken that would have prevented him from going on the bench. And so, we have this now incredible image of the author of these unbelievable memos sitting in judgment and enforcing the law against hundreds of citizens during his lifetime tenure as a judge.

MADDOW: There is that impeachment idea, I suppose.

As we have noted, impeaching judges for legal work done before they take the bench could open a real can of worms.  If that can is opened, it’s won’t take long before we’re back to the days when Congressman Tom DeLay was threatening to impeach judges for a wide variety of political reasons.

When Should Judges Recuse over their own Campaign Contributions?

The growing debate over recusal of judges over campaign cash has seeped into the federal courts.  This time questions involve contributions made by judges.  The National Law Journal reports that two members of the Minnesota Supreme Court, which has been hearing litigation over the prolonged U.S. Senate race recount there, have donated to incumbent Norm Coleman or to a political action committee that has supported him.  Another justice gave money to former Coleman opponent Paul Wellstone.

Two Minnesota justices have already said they will recuse themselves from hearing a recount appeal because they were part of a five-person board that oversaw the original recount.

Harassment and Threats Against Judges Rising

The United States Marshals Service has released data showing a steady increase in threats, harassment and other inappropriate communications with judges. According to the National Law Journal, in just five years the number has risen 89 percent.

Federal law sanctions threats against judges, along with the intentional release of personal information with the intent to threaten, intimidate, or incite a violent crime against a judge.

In addition to monitoring outright threats, the Marshals Service tracks inappropriate communications that “harass, show an unusual direction of interest, or make unsettling overtures of an improper nature directed to a protectee.” In a little over 1 percent of the cases, the threat or inappropriate communications was posted on a website or blog.