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Spending Likely to Lag in Alabama Race

Spending in Alabama’s  Chief Justice race is far less than in a record-setting 2006 election, and signs indicate that it will stay that way, according to an article in the Montgomery Advertiser.

Some of the leading spenders in 2006, including the Business Council of Alabama, plaintiff’s lawyer Jere Beasley and the Alabama teachers union, all have stayed on the sideline in 2012, while Republican Roy Moore and Democrat Robert Vance Jr. square off. “Lawyers don’t need to be participating in judicial elections,” Beasley told the Advertiser. “Neither do corporations. In my opinion, it’s time to change.”

Although five of the state high court’s nine seats are up for election this year, the race is radically different from 2006, when a total of $14.5 million was spent, including independent expeditures. This year, only one of five seats, the Chief Justice’s, is contested. And even in that race, Vance only stepped up after the initial candidate was dropped by the Democratic Party after an anti-gay diatribe.

Both Vance and Moore’s campaign manager expressed hope that spending would be less this year. “I hope this election cycle will bring political campaigns back down to Earth from the astronomical spending,” said Rich Hobson, Moore’s manager. Moore, a former chief justice who was forced off the Alabama Supreme Court when he defied a federal court order to remove a Ten Commandments display, is considered a favorite in the election, the article said.

In 2000-2009, Alabama supreme court elections were the nation’s costliest, with a total of $43.5 million spent, according to a 2010 national study co-authored by Justice at Stake. But starting in 2008, fewer seats have been contested, and the amount of money spent on elections has diminished . Following the resignation of Democratic Chief Justice Sue Bell Cobb in 2011, the nine-member court is all Republican.

In a Gadsden Times article on the Alabama court election, challenger Vance recounts how he decided to enter the race, after candidate Harry Lyon was stripped of his Democratic nomination.



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Hasen’s Critique of Voter ID Ruling: a Model of Balance

As Gavel Grab stories often attest, court decisions are controversial, with as many disappointed losers as satisfied winners. That’s why it’s important, regardless of the ruling, to learn the art of civil disagreement–pointing out flaws in a decision while respecting courts as an institution.

Today’s commentary by election-law expert Rick Hasen (photo) is a model of respectful, precise but firm criticism of a court ruling, as he dissects the decision of a Pennsylvania judge to uphold that state’s voter ID law. Significantly, Hasen acknowledged the effort and thought invested in the ruling, even though he disagreed with its conclusion:

This is a careful opinion by a judge who struggled with the evidence and the law and, as I expected, issued a thoughtful, non-ideological and well-done decision. I disagree with the decision’s bottom line … but there is no doubt this is a judge acting in good faith applying the law and facts as he found them.

Hasen, a professor of law at the University of California-Irvine, also criticizes specific aspects of the ruling without employing the broad, and meaningless attack labels, such as “activist,” used by many critics of court rulings. As we urged in an April statement about the health care case, he disagrees with a court ruling without delegitimizing the judiciary.

While burdens on voters would be justified if the law actually served an important purpose, the fact that there is no evidence of impersonation voter fraud to justify a voter i.d.—a point which cannot be emphasized enough—the law would be imposing a burden on voters for no good reason. And of course it is being imposed for a bad reason: these laws have been favored almost exclusively by Republican legislators likely out of the belief that it will cause a modest decline in Democratic turnout.

Finally, as noted in an earlier Gavel Grab post, voter ID cases in several states underscore the significance of state courts in determining critical cases. Special interests on both sides have spent tens of millions of dollars on Pennsylvania court elections in recent years, and one justice, Joan Orie Melvin, is suspended while she faces criminal charges related to her 2009 election campaign.

The result of all that effort? The Pennsylvania Supreme Court is divided 3-3 along partisan lines, leading Hasen and others to believe that today’s ruling, issued by a local trial judge, will be allowed to stand, and could sway Pennsylvania’s 20 electoral votes on Election Night.



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Caperton Case Justice Says Evidence Showed No Bias

Ever since spending exploded on state supreme court elections in 2000, one of the most urgent debates has involved judicial recusal—whether and when elected judges should step aside from cases involving campaign supporters.  No case crystallized that debate more starkly than Caperton v. Massey.

On Friday, the West Virginia justice at the center of that case, Brent D. Benjamin, forcefully defended his role in hearing a case involving the company of a coal executive who spent $3 million to help put Benjamin on the state’s high court. He said that despite the expenditures, he had no ties to Massey Coal Co., or its chief executive, Don Blankenship, and therefore was able to hear the case impartially.

Speaking at the American Bar Association’s annual meeting in Chicago, Justice Benjamin said his overall record showed no favoritism toward Massey Coal Co. “If you’re talking about bias, my batting average over four years was that my decisions were 80 percent against Massey. … I was told during the campaign that Don Blankenship didn’t think too highly of me. That’s probably even more true now.” Read more

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Leaders of ABA Task Force: ‘Huge’ Task Remains

Two leaders of an American Bar Association task force concluded a two-year project on raising awareness about court funding by saying that a “huge” task remains ahead for championing the needs of America’s courts.

“This is going to be a long-term project if it’s going to be successful,” said task force co-chair David Boies, speaking at the ABA annual meeting in Chicago. “The court system is in crisis … it needs funding, and it is essential to ordinary people, business and labor.”

Theodore Olson, the other co-chair of the ABA Task Force on Preservation of the Justice System, said, “It is a huge project which has just begun. We have just scratched the surface. Two years ago, no one was thinking about court funding, no one was talking about it. We have invested an enormous amount of time just to get the ball rolling.”

The two (shown in photo from an earlier event) spoke at an ABA forum whose title asked plaintively: “Saving Our Underfunded Courts: Is Anybody Listening?”

Panelists spoke of efforts that had shown promise in winning legislative attention, as well as the challenges of engaging more public concern about the courts.

Marsha Kazarosian, vice president of the Massachusetts Bar Association, said that after a 2011 campaign that included prominently placed billboards, letters and e-mails to lawmakers and outreach to legal and other community leaders, lawmakers ended a four-year freeze on hiring court staff.

“It absolutely worked,” Kazarosian said. “When you’re getting the attention of the public, you’re getting the attention of legislators.” But she cautioned, “This is a marathon, not a sprint.”

Others on the panel included North Dakota Chief Justice Gerald Vande Walle; Elaine Jones, civil rights lawyer and task force member; Lady Booth Olson, a lawyer who is married to Theodore Olson and worked extensively to cull the task force’s findings; Rosalyn Frierson, a court manager from South Carolina, and Michael Bocian, a polling consultant from GBA Strategies Inc.

The panel was moderated by William Weisenberg, former chair of the ABA Standing Committee on Judicial Independence. Although the ABA task force on court funding is winding down, the standing committee will remain involved in helping to build state coalitions to support court funding.

“The ABA brings 500 lawyers to Washington on May 1. We need 500 lawyers to go to all the state legislatures on May 1,” Boies said. “If lawyers are not going to defend the court system, nobody else will.”

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Did Roberts Pull a ‘Switcheroo’?

One of the most intriguing-although admittedly speculative-topics to emerge from last week’s health care ruling is whether Chief Justice John Roberts changed his vote during the court’s deliberations, and, if he did, what might have motivated him to change his vote.

Articles in The Washington Post, the Wall Street Journal and the Volokh Conspiracy blog all sifted for hints as to whether Roberts abandoned an initial decision to overturn the health care law in its entirety (the Journal’s headline spoke of a “switcheroo”). But the most strongly worded report came in a highly unusual insiders’ account from CBS News reporter Jan Crawford, who cited  unnamed sources as saying that Roberts had reversed his original vote on the case.

According to Crawford’s report, Chief Justice Roberts voted in conference to strike down the health care law, saying that a mandatory insurance requirement exceeded Congress’s authority to regulate interstate commerce. In a surprise to many, Roberts nonetheless found that Congress could use its taxing authority to encourage the purchase of health insurance, and thus upheld the law.

Crawford wrote:

In this closely-watched case, word of Roberts’ unusual shift has spread widely within the Court, and is known among law clerks, chambers’ aides and secretaries. It also has stirred the ire of the conservative justices, who believed Roberts was standing with them.

After the historic oral arguments in March, the two knowledgeable sources said, Roberts and the four conservatives were poised to strike down at least the individual mandate. There were other issues being argued – severability and the Medicaid extension – but the mandate was the ballgame.

Whether Crawford’s account is accurate, several points are worth noting. Although changes of position after the initial vote are rare, justices are allowed to alter their votes during the back and forth of exchanging draft opinions. Indeed, according to numerous accounts, Anthony Kennedy did just that at another critical moment in Supreme Court history. In 1992, Kennedy first voted to strike down Roe v. Wade, but changed his mind before a final decision upheld abortion rights in Planned Parenthood v. Casey.

Other cases of intra-court vacillation are noted in insider accounts of the court, including Crawford’s own “Supreme Confict.”

Moreover, in Saturday’s Washington Post, Supreme Court reporter Robert Barnes noted that Roberts had raised the issue upon which he based his final opinion in March, during oral arguments over the health care law.

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Another Impeachment Call: Just Say No

Of all the bad, destructive ideas about courts, one stands out as the worst: turning decisions made from the bench into impeachable offenses.

Unfortunately, this stinker is becoming more bipartisan in recent years, as progressives increasingly echo the conservative mantra about “activist judges.” In a Huffington Post commentary, Nathan Newman, founder of, says, “We should be talking about impeaching Supreme Court Justices who engage in such right-wing judicial activism.”

Actually, no. Not to get technical, but impeachment under the Constitution is limited to “high crimes and misdemeanors.” Courtroom decisions, conservative or progressive, are not criminal. They are not grounds for impeachment.

But looking beyond the law, there’s a practical side: If one judge is impeached for a decision, does anyone believe that would be the end? If we think the misery of hyperpartisan confirmation hearings is bad now, try to imagine a dozen or two judges being hauled in for impeachment hearings, for the crime of heretical judgments, every time party control changes in Congress. No credible system of justice could possibly survive this.

Fortunately, for more than 200 years, talk of impeachment has remained just talk. No state or federal judge has ever been removed from office for a courtroom decision. But any impeachment threat is irresponsible, regardless of party.

In 2011,  we opposed calls by Republican legislators to impeach four Iowa justices for striking down a ban on same-sex marriage. The same in 2010, when Congressmen on both sides of the aisle threatened impeachment against a total of four U.S. Supreme Court justices. In 2009, federal appellate judge Jay Bybee faced impeachment calls over legal memos he wrote while working in the Bush administration. And last winter and spring, the National Center for State Courts reported a record number of impeachment threats against state judges.

As Bert Brandenburg, JAS executive director, said in October 2010, the same can be said again today:

“Almost every American, liberal and conservative, has been angered by particular legal rulings, but that’s because we ask courts to settle tough legal disputes. It is reckless to threaten judges with ouster simply because we don’t like a particular decision. Political threats don’t belong in America’s courtrooms.”



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Judge Asks Ethics Review Amid Furor Over Racist E-Mail

Richard Cebull, a federal judge from Montana whose racist and sexist e-mail about President Obama has stirred calls for his resignation, has  asked for a formal judicial review of his actions, to determine if he has engaged in professional misconduct.

According to a Great Falls Tribune report, Cebull’s e-mail, sent to about a half-dozen friends from his work account, said the following:

“Normally I don’t send or forward a lot of these, but even by my standards, it was a bit touching. I want all of my friends to feel what I felt when I read this. Hope it touches your heart like it did mine.

“A little boy said to his mother; ‘Mommy, how come I’m black and you’re white?’” the email joke reads. “His mother replied, ‘Don’t even go there Barack! From what I can remember about that party, you’re lucky you don’t bark!’”

In addition to seeking an ethics review, Cebull also sent a letter of apology to President Obama, saying, “I accept full responsibility. … Please forgive me and, again, my most sincere apology.”

In a statement, the Ninth U.S. Circuit Court said that it  “expected to act expeditiously in investigating and resolving this matter.”

Cebull’s apology has failed to slow calls for his resignation, including from the National Bar Association, Common Cause and the Montana Human Rights Network. The groups said Judge Cebull had violated ethical canons and raised potential doubts among women and African Americans on whether he could give them a fair trial.

A statement from the National Bar Association, which represents African American lawyers, called the e-mail “inexcusable,” adding that “we must refuse Cebull’s apology and strongly demand that actions and disciplinary measures are taken that encourage Judge Cebull’s resignation or his impeachment.”

In a Huffington Post column,  Common Cause President Bob Edgar  wrote, “Judge Cebull disgraced himself and demonstrated his unfitness for the bench. He has apologized, as he should, but that’s not enough. With the whole country watching, the judge now faces another test of character; he can pass it only by resigning his office.” Edgar added:

“Judge Cebull’s offense probably does not qualify as the sort of ‘high crime or misdemeanor’ the Constitution sets out as grounds for impeachment. But it clearly and disgustingly violates a judge’s obligation to put politics aside and to avoid any conduct that undermines public confidence in what the federal Canons of Judicial Ethics call “the integrity and impartiality of the judiciary.”

Common Cause and the National Bar Association are JAS partner groups. To see an earlier Los Angeles Times article on this controversy, click here.

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Professor’s Prophecy: Will High Court ‘Flip’ on Citizens United?

A Harvard ethics professor and former clerk for Justice Antonin Scalia predicts that the  U.S. Supreme Court will overturn Citizens United, just a few years after issuing the hugely controversial campaign finance ruling.

Lawrence Lessig, speaking last week at the Center for Public Integrity in Washington, acknowledged that he had no inside information, but he said, “I think it’s quite likely Justice Kennedy is about to flip.” According to an article, Lessig said that Kennedy “is completely surprised by how much damage this decision has done – even Scalia doesn’t like the world where all the money in the world is on one side.”

There has been rampant speculation about how the Supreme Court will handle a Montana high court decision  that challenges key portions of Citizens United (see these posts). Some have predicted a wholesale reversal of the Montana decision, while others suggest that the Supreme Court may narrow the effects of Citizens United, which overturned bans on direct corporate spending on elections.

Lessig emphasized that simply reversing Citizens United would not restore the health of electoral democracy, adding he did not believe “somehow that on January 20, 2010 – the day before Citizens United was decided – our democracy was fine and Citizens United broke it. But of course, the democracy was already broken.”

Election law expert Richard Hasen voiced deep skepticism at Lessig’s prediction, saying, “While I hope Larry’s right, I have no confidence that he is.”

Citizens United also was at the heart of political activity in two states this week. In Alaska, some lawmakers proposed a resolution urging Congress and President Obama to advance a constitutional amendment overturning Citizens United. And in Montana, the Great Falls Tribune reported, efforts were announced to pass a state ballot measure “that asks Montana voters to set a policy statement that corporations are not people with constitutional rights. It tells Montana policy leaders to oppose the high court’s decision any way they can.”

Justice at Stake filed an amicus brief in Citizens United, warning that unlimited corporate and union spending would threaten the impartiality of the 38 state supreme courts where justices face some elections. JAS also said the decision “pours gasoline on the fire” of judicial election spending.



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Merit Issues Debated in 4 States

Newspaper commentaries spoke favorably of merit selection in three states-Kansas, Tennesee, and Wisconsin-while an Iowa newspaper reported that Gov. Terry Branstad (photo) was moving to change the political makeup of judicial nominating commissions that screen candidates for the bench.

In Kansas, the Lawrence Journal World praised a vote last week by the state Senate that rejected changes to that state’s system for appointing appellate court judges. But the article also warned that other changes to the state’s merit system might be considered. The editorial added: “With all the big issues facing legislators this year, there is no reason for them to spend more time on efforts to change a system that’s working well for the state.”

In Tennessee, a Knoxville News opinion column, by former attorney general Paul G. Summers, likewise hailed merit selection as more appropriate for judges than partisan contested elections. Summers called on the legislature to enact a plan by the governor and senior lawmakers that would let voters put merit selection into the state constitution in 2014.

Wisconsin’s Oshkosh Northwestern said that growing spending and animosity in state high court elections justify a switch to merit selection, in which a nonpartisan commission screens a slate of candidates, from which the governor appoints judges to the bench. The paper’s editorial said:

“Supreme Court elections have successively grown more expensive and combative, with ideological sparring turning into a highly publicized fracas between members of the once well-regarded high court. … Merit selection systems are not a panacea by any means, but they do offer some safeguards to the excesses we’re currently seeing.”

The Sioux City Journal in Iowa reported that Branstad, a Republican governor, had appointed numerous Republicans to judicial nominating commissions, with a spokesman noting that many districts previously had no Republicans on the nominating commissions. The article noted that a number of nominees to the commissions openly oppose the merit selection system.

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JAS, Brennan Hail Tennessee Recusal Rule

Justice at Stake and the Brennan Center for Justice have praised the Tennessee Supreme Court’s decision to strengthen that state’s judicial recusal rules.

The state’s new Code of Judicial Conduct, enacted this week, prohibits judges from hearing cases involving campaign supporters in which “the judge’s impartiality might reasonably be questioned.” The code also requires judges to issue written explanations if they decline to step down from a case, and allows litigants to appeal a judge’s decision.

In a statement issued today, JAS Executive Director Bert Brandenburg said, “The Tennessee Supreme Court should be applauded for taking this important step forward. Tennessee’s new, forward-looking rules will help ensure public faith in the court system, and provide a model for the rest of the nation to follow.”

Added Maria De Silva, research associate for the Brennan Center, “As spending on high court elections continues to skyrocket, judges and litigants need a clear way to address recusal questions related to campaign contributions. Tennessee’s new disqualification rules are a step in the right direction that will help shore up public confidence in the judiciary.”

Justice at Stake and the Brennan Center filed joint comments in support of the proposed changes to Tennessee’s Code. Adam Skaggs, Senior Counsel for the Brennan Center, presented oral arguments before the Tennessee Supreme Court on December 2, 2011.
In a June 2011 report on recusal reform two years after the U.S. Supreme Court’s landmark Caperton v. Massey ruling, JAS and the Brennan Center identified Tennessee’s proposed rules as some of the most promising reforms in the country.

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