Gavel Grab

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Impeach Judge Bybee?

In Slate last week, Yale professor Bruce Ackerman called for the impeachment of federal appeals judge Jay Bybee.   The rationale would be to provide an opportunity for a legislative investigation of Bybee’s previous work as a Justice Department attorney, where he helped produce the “torture memos” that green-lighted conduct that included abuses of prisoners at Abu Ghraib, Guantánamo and elsewhere. 

If legal work done before joining the bench becomes ground for impeachment, the courts are in for hard times.  The Constitution subjects judges to impeachment for “treason, bribery, and other high crimes and misdemeanors.” 

Professor Ackerman wants to drop the atomic bomb of our political system on Judge Bybee for helping to author legal opinions that he describes as “extreme,” “legally incompetent,” and “poorly reasoned.”  Impeachment criteria like these could clear the bench pretty quickly, especially as enforced by legislators pandering to their angriest political supporters. Read more

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The Chief Justice, Judicial Pay, and the Role of the Courts

In his traditional New Year’s Eve message, Chief Justice John Roberts noted that Congress again failed to provide federal judges with something granted to every other federal employee:  an annual cost-of-living increase.  Indeed, judges’ salaries have declined in real terms over the past twenty years. The Chief Justice noted that the entire judiciary accounts for only 0.2% of the U.S. budget.  

“The Judiciary is resilient and can weather the occasional neglect that is often the fate of those who quietly do their work. But the Judiciary’s needs cannot be postponed indefinitely without damaging its fabric,” he noted.  “The Judiciary must also continue to attract judges who are the best of the best.”

During these times,” he added, ”when the Nation faces pressing economic problems, resulting in business failures, home foreclosures, and bankruptcy, and when Congress is called upon to enact novel legislation to address those challenges, the courts are a source of strength. They guarantee that those who seek justice have access to a fair forum where all enter as equals and disputes are resolved impartially under the rule of law.”

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This is Your Brain on Law

From its earliest days, the law has forced its makers to be amateur psychologists.   Myriad rules of evidence and procedure have been crafted to help ensure that human nature does not swamp the facts and law when it’s time for judges and jurors to make a decision.

This is a hard task on a good day.  But recent research from Vanderbilt University casts new light on just how tough it is for courtroom rules to keep up with the inner workings of our brains as they process information and come to a decision.  As reported in the National Law Journal, scientists used magnetic resonance imaging technology to watch the brain at work as subjects made decisions involving issues of crime and punishment.

“The analytical part of the brain — called the dorsolateral prefrontal cortex — was active when subjects were asked to decide whether or not people deserved to be punished. But the part of the brain that is responsible for emotions was triggered when people were asked to decide the level of punishment deserved in the scenarios,” writes the Journal’s Karen Sloan.

“Emotions are a part of legal decision-making,” added René Marois, a neuroscientist at Vanderbilt who worked on the study, which was published in the current issue of the journal Neuron.

If confirmed, research like this would suggest a fresh look at the legal system’s safeguards against bias of all kinds, personal, political and beyond.  Of course, instincts are often way ahead of the data: after all, 76% of Americans believe that campaign contributions affect the outcome of decisions in the courtroom.

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The American Academy of Arts and Sciences on Judicial Independence


Yesterday, I was honored to participate in a program on judicial independence hosted by the American Academy of Arts and Sciences at the NYU Law School.  The program—the Academy’s first examining these issues—attracted 200-300 people, including many interested students.  Former New York Times Supreme Court reporter Linda Greenhouse moderated.

Justice Sandra Day O’Connor delivered opening remarks, reprising her concerns about growing pressure on judicial elections.  “It’s harder for a judge to be neutral if they think about the popularity of their opinions and who has donated to them,” she said.  “We can’t afford to have a justice system that’s perceived as corrupt, biased or unethical.”  She closed with a warning:  “Statutes and constitutions don’t protect judicial independence.  People do.”

Yale Law Professor Judith Resnik reviewed the evolution of the concept of strong and independent courts.  Her slide show began with an image of flaying of a corrupt judge in Gerard David’s 1498 diptych The Justice of Cambyses (pictured above) and similar cultural representations of judging as a high-risk occupation.  She showed how the notion of independent courts became enshrined in America’s founding documents, and how courthouse architecture can reinforce the cultural strength of the courts.

My own presentation touched on first reports of what happened in this year’s judicial elections: Supreme Court justices raising what probably will exceed $30 million, and $17 million or more in TV ads.  I touched on voter approval for merit selection in four different county referenda.  I also discussed how party-line voting ousted 22 experienced GOP judges in Texas this year, and 19 more two years ago.  As usual, when I showed some of the ads that ran this year, there were a lot of gasps in the audience

Georgetown Professor Viet Dinh discussed criticism of the courts, and the complicated task of distinguishing between fair critiques and inappropriate attacks.  “Illegitimate criticism is the majority of criticism we see today,” he said.  Valid criticism, he added, includes situations where a judge’s decision “steps so far out of bounds that he has failed the judicial oath,” perhaps “in response to external pressures.”  He lamented that “elites know how to criticize judges in ways that are effective in forcing them to change their behavior.”

The Academy , founded by John Adams, held the program to launch a new issue of it’s journal, Daedelus, that is devoted to judicial independence issues.  It includes contributions by the panelists and many other authors.  The issue was edited by Meryl Chertoff, Executive Director of the Sandra Day O’Connor Center on the State of the Judiciary.

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The Courthouse Door Opens (kind of, for a day) for Guantanamo Detainees

Yesterday, for the first time, the courthouse door swung open for detainees seeking to challenge the U.S. government’s justification for holding them at the naval base in Guantanamo Bay.   The six men, natives of Algeria, gained a hearing after the Supreme Court’s spring Boumedienne decision, which cleared the way for Guantanamo’s approximately 250 detainees to file habeas corpus claims challenging their detention.

Actually, the defendants weren’t in court.  They were scheduled to listen in by telephone, but a technical problem marred the connection.  (Tape recordings will be shipped to them.)  If they testify, they will do so by remote video.

Prosecutors accuse the men of planning to go to Afghanistan to fight U.S. forces.  Their attorneys say the government has no proof of such plans, and is making “a terrible mistake.”

Although the six detainees are finally getting to make an argument, the hearing was not a run of the mill day in court.  After opening statements, Judge Richard Leon closed the courtroom in anticipation of the government’s classified evidence.  The detainees testimony will also be heard in secret, he added.  Prosecutors have also filed a sealed envelope of evidence with the judge, and asked him to open it if this week’s evidence isn’t strong enough to justify the men’s detention.

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JAS Press Release–Judicial Elections & Selection, 2008

2008 Supreme Court Elections:  More Money, More Nastiness

But Voters in Referenda Move to Keep Election Politics Out of Their Courtrooms;
Justice O’Connor Calls for State Reforms

State elections for Supreme Court justices ended 2008 much as they began, punctuated by runaway spending, partisan pressure, angry accusations and costly, secretly-funded ads by third-party special interests that often drowned out the candidates. 

In the final week before the race, almost $5 million was spent on television advertising nationally. Even though several Supreme Court races were uncontested, more money was spent on advertising than in 2006, according to data compiled by the Brennan Center for Justice.

Reform initiatives like voter education, public financing, and conduct committees helped curb the spiral of nasty politics in some states.   And in two heartland counties, in Kansas and Missouri, voters responded to rising judicial election pressures by choosing merit selection systems over contested elections.  Voters in Alabama amended their constitution to allow Shelby County to fill judicial vacancies with merit selection. Read more

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Corporate Attorney Replies to Wall Street Journal on Merit Selection

A business attorney from Minnesota published a letter in the Wall Street Journal today, replyng to the Journal’s most recent attack on merit selection of judges:

I write in response to your recent editorial “State Courts in the Balance” (Oct. 30) dealing with state judicial elections and the noxious influence the trial lawyers have had in getting left-leaning and plaintiff-oriented judges elected or appointed to high judicial positions. I’ve been a trial lawyer for 35 years with 90% of my career given over to the defense of corporations and insurance companies in civil litigation.

Your longstanding habit of tarring all “trial lawyers” with the same brush is unfair and misleading. Read more

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New data on judicial elections

Professor C. Scott Peters at the University of Northern Iowa has taken a closer look at the new politics of judicial elections.  In a recent issue of the Justice System Journal, Professor Peters concludes that “at the moment, state supreme court elections or appear in transition — gradually losing their special nature, but, on the whole, not yet fully “political.”

Among the findings: 

  • In 2006, 71% of Supreme Court candidates surveyed indicated that parties or interest groups attempted to influence their campaigns. 
  • “Interest groups have increased their influence on state supreme court elections through the use of candidate questionnaires.” 
  • Only 10% of candidates said the money spent by candidates was not a factor in their election and nearly 75% indicated that it was an important factor.

“Given the link between money and professionalize campaign techniques,” Professor Peters concludes, “one can expect that as money flows into these elections in greater amounts, campaigns will continue their progression toward fully politicized campaigns, in both her organization and their messages.”

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Decision Near on whether Supreme Court Will Take WV Recusal Case

As the New York Times reported this weekend, the Supreme Court will soon decide whether to hear Caperton v. Massey, which could decide when judges need to step aside in cases involving their campaign supporters.

In five separate briefs to the U.S. Supreme Court, organizations from across the political spectrum asked the court to hear the case.    The organizations included five Justice at Stake partners–the American Bar Association, the Committee on Economic Development, the Reform Institute, the Campaign Legal Center, and the Brennan Center for Justice–along with Public Citizen and the Washington Appellate Lawyers Association.

According to Theodore B. Olson, former Solicitor General of the United States and counsel of record for the petitioners, “The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today. A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge.”

For more Gavel Grab coverage of Caperton, click here.

Update:  From Slate, more commentary on the case by American University Law Professor Amanda Frost, who writes, “If a state plans to embrace judicial elections, it should shield judges from having to collect campaign donations from the very groups that appear before them. Otherwise, they’ll be beholden to the parties that come before them. That’s even worse than the effect of lobbying on legislators.”

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New Out of State Ad in Alabama Judicial Campaign

A Virginia-based group, the Center for Individual Freedom, has entered Alabama’s Supreme Court campaign with a TV advertisement extolling Judge Greg Shaw:

An Alabama courtroom can be a pretty tough place.  Only someone who’s had to sit on this bench deciding death penalty cases knows how important it is to our families’ safety.  Thank goodness we have judges like Greg Shaw, who’s upheld the death penalty for some of Alabama’s most heinous criminals.  With judgments so respected the Supreme Court chose him to preside over cases involving other judges.  Log on to our petition.  Ask Judge Shaw to continue protecting Alabama families.

In previous elections, the Center for Individual Freedom has run ads in Pennsylvania judicial elections on crime issues, classic so-called issue ads that make it clear who they support.  This year they challenged West Virginia’s electioneering communications law requiring any group that runs advertising for or against candidates for state office disclose who is paying (if they refer to a clearly identified candidate and appear within a certain number of days of an election).

Other Justice at Stake postings on the Alabama race can be found here and  here and here

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