Gavel Grab

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Judge: FISC Limited in Ability to Police Surveillance Programs

Its chief judge says the secretive Foreign Intelligence Surveillance Court’s ability to police U.S. surveillance is limited.

Federal District Judge Reggie Walton say the court simply doesn’t have the means to determine how often U.S. surveillance violates rules established by the court to preserve privacy, according to the Washington Post.

“The FISC is forced to rely upon the accuracy of the information that is provided to the Court,” Judge Walton told the Post. “The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.” Read more

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Chief Judges to Congress: Spare Courts From New Budget Cuts

In a letter to congressional leaders, the chief judges of 87 federal district courts say inadequate budgets plus recent sequestration cuts have had a “devastating” impact on court operations. They urge Congress to spare the courts any further cuts, Politico reported.

Budget constraints and the automatic, across-the-board cuts known as sequestration “have forced us to slash our operations to the bone, and we believe that our constitutional duties, public safety, and the quality of the justice system will be profoundly compromised by any further cuts,” the letter said.

The chief judges detail numerous harmful impacts, the foremost for funding Defender Services. The letter underscored a disparity between funding for prosecutors and for publicly funded defenders. While the latter have been affected by sequestration and furloughs, the Department of Justice is not furloughing prosecutors, and the criminal caseload requiring court-appointed counsel hasn’t slackened, they said. The chief judges conclude:

“[W]e understand that the economic climate across the nation is difficult, and we appreciate Congress’s consideration. In response to reductions resulting from sequestration, we have cut as much as possible while striving to uphold our core mission. Another round of cuts would be devastating. Read more

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Diversify ABA Standing Committee on Judiciary, Law Professor Urges

The American Bar Association Standing Committee on the Federal Judiciary, which helps evaluate potential nominees for federal judgeships, doesn’t usually get much attention. In a departure from that tradition, a Washington Post op-ed by Michael J. Yelnosky, a professor at Roger Williams University School of Law, urges greater professional diversity on the panel.

“The significant power that the ABA standing committee wields comes with the responsibility to ensure that prospective judicial nominees are evaluated by a broad cross-section of the profession, not only by those who represent a small portion of the population the federal courts exist to serve,” Yelnosky writes.

He contends that the committee has a serious overrepresentation of lawyers who represent business interests and asserts that the committee for 2013-2014 is devoid of members who represent individuals suing on behalf of individuals who allege they were hurt by actions of corporations or other businesses.

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Ban on Foreign Law in Oklahoma Courts is Struck Down

A federal court has struck down a ban adopted by Oklahoma in 2010 on use of foreign or Islamic law in state courts, the Associated Press reported.

District Judge Vicki Miles-LaGrange barred state officials from certifying the outcome of a 2010 popular vote in favor of a constitutional amendment containing the ban.

“While the public has an interest in the will of the voters being carried out, the Court finds that the public has a more profound and long-term interest in upholding an individual’s constitutional rights,” the judge wrote, according to a Tulsa World article.

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Editorials: Politics Playing Havoc With N.J. Supreme Court Nominations

Partisan political gamesmanship has overtaken the nomination and confirmation process for justices on the New Jersey Supreme Court, two editorials suggest in commenting on this week’s developments.

Gov. Chris Christie’s nomination of Judge Faustino Fernandez-Vina (at left in photo), and his declining to renominate Justice Helen Hoens (see Gavel Grab), has sparked controversy and prompted various analyses of a process that has become gridlocked, to the point the court’s reputation may be harmed.

A Herald-News editorial declared that the Republican governor’s latest nominee — and two earlier ones, whose nominations have languished — deserve hearings in the Democratic-controlled state Senate.

“Nothing is happening because Democrats want political payback in perpetuity,” the editorial said, suggesting that Christie is facing the retaliation for his decision not to renominate Justice John Wallace Jr. in 2010. ”Christie’s decision to not renominate Wallace was wrong. But not allowing the governor to have his judicial choices on the high court’s bench if they are indeed qualified to sit on the bench only proves that two wrongs make for bad government.” Read more

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Expert: Impartial Courts Threatened by N.J. Political Battle

With nominations for the New Jersey Supreme Court embroiled in partisan politics and its vacancies possibly increasing, an academic expert warned that the court’s reputation for independence is threatened.

Since Gov. Chris Christie took the unusual step of declining to renominate Justice John Wallace Jr. in 2010, “[I]t has been one bad surprise after another,” said Robert F. Williams of the Center for State Constitutional Studies at Rutgers University Camden, according to

“Our judiciary was highly respected around the country. Not everyone agreed with its decisions, but it was scholarly, thorough, progressive — some would say activist — but independent. It is that independence that is being damaged.”

Christie this week declined to renominate another jurist, Justice Helen Hoens, and instead nominated a sitting lower court judge who is a native of Cuba and would bring ethnic diversity to the court, Judge Faustino Fernandez-Vina (see Gavel Grab). His decision not to renominate Justice Hoens could expand from two to three the number of vacancies on the seven-member court this fall. The court currently includes two appointed, temporary lower court judges.

Christie is a Republican. The state Senate is controlled by Democrats. A New York Times editorial touched upon the judicial confirmation stalemate in the context of its discussion of a marriage equality case in the state court system:

“This case is being argued at a fraught moment for the independence and integrity of the state’s court system. On Monday, Mr. Christie announced that he would not renominate an able sitting State Supreme Court Justice, Helen Hoens, for lifetime tenure on the court. It was only the second time that a governor has chosen not to renominate a competent justice in more than 65 years — the first being in 2010 when Mr. Christie declined to renominate John Wallace Jr., who was the court’s only African-American member. Mr. Christie said on Monday that it was his intention to ‘reshape the court’ because the ‘New Jersey Supreme Court has repeatedly strayed from its purview and overstepped its role.’”

From another vantage point, a Record editorial credited Christie. “It may have been the Democrats’ intention not to act on Christie’s court nominations until after the November election, but the governor is now forcing the issue, and he is right to do so,” it said. “All three of Christie’s choices for the Supreme Court deserve hearings before the Judiciary Committee and a vote. The Democrats have flexed their political muscles on this issue for more than a year. Now the time has come for the political showmanship to end.”

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Sen. King Asks Attorneys to Aid KS Senate With Questions for Nominee

The way that Kansas will select a new Court of Appeals judge under a just-passed law is getting tweaked, again. According to a Topeka Capital-Journal article, at the invitation of Sen. Jeff King, a panel of three attorneys will develop written questions to supplement upcoming confirmation hearings on Gov. Sam Brownback’s to-be-announced nominee.

One of the three lawyers does not live in Kansas.  Deanell Tacha, a former federal judge,  now is dean of the law school at Pepperdine University in California. The other lawyers are Stephen McAllister, state solicitor general and a law professor at The University of Kansas; and  Reginald Robinson, former CEO of the Kansas Board of Regents and director of the law and government center at Washburn University in Topeka.

King is chairman of the Senate Judiciary Committee. A special legislative session beginning Sept. 3 is expected to include Senate confirmation hearings for the nominee, whom Brownback must announce by Aug. 29. Read more

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ABA Head on Budget Cuts: Causing ‘Deep Embarrassment’ for Nation

James Silkenat, a New York attorney and the new president of the American Bar Association, warned of the severe impact of across-the-board, automatic federal budget cuts called sequestration on citizens’ access to justice through public defender programs.

Sequestration “particularly imperils the delivery of effective legal representation to poor people accused of federal crimes,” Silkenat said, according to a Legal Newsline article. He noted that “the $350 million reduction in the federal judiciary’s budget for fiscal year 2013 has resulted in an 8 percent cut to the network of high-quality federal defender offices around the country.

“It has forced the layoffs of many experienced lawyers who have devoted their professional careers to the underappreciated and underpaid work of representing indigent federal defendants,” Silkenat added. “This is a deep embarrassment for a nation grounded on the rule of law.”

Every week, more local news media are highlighting the impact on their courts of sequestration. A Charlottesville (Va.) Newsplex article was headlined, “Sequestration Hits Local Federal Courts.” In New York, possible delays in the retrial of former state Senate Majority Leader Joseph Bruno, due to sequestration, were mentioned in a Troy Record report.

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Thursday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • The online Sonoran News, which bills itself as “The Conservative Voice of Arizona,” carried Justice at Stake press release about an amicus brief filed with the Arizona Supreme Court by JAS and the Brennan Center for Justice, and another press release, about a Fair Courts Litigation Task Force that includes JAS.
  • A feature in the News-Herald newspaper, with video, was headlined, “Ohio Supreme Court Justice Sharon Kennedy reflects on her first eight months on the bench.”
  • According to a Legal Newsline article, the American Bar Association’s House of Delegates voted approval of a resolution supporting the creation of new permanent and temporary federal judgeships. “Legislation is needed to ensure that the federal judiciary has the judgeships it needs to adjudicate all cases in a prompt, efficient and fair manner,” the ABA’s executive summary of the resolution said.

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Big-Spending ‘Extravaganza’ in N.C. Court Election Next Year?

When four seats on the seven-member North Carolina Supreme Court come up for election in 2014, a high-spending, multiple-candidate election may unfold.

“[A]lready Republican candidates for the 2014 high court elections are gearing up for what might be an extravaganza — more candidates and lots more money, particularly if Gov. Pat McCrory signs into law proposals passed by the General Assembly [to] unleash campaign fundraising,” Sharon McCloskey wrote on Monday in the Progressive Pulse, a publication of North Carolina Policy Watch. On that day, McCrory signed the legislation.

As proof that Republicans may go gung-ho to keep or expand a 4-3 majority on the court, McCloskey cites a memo by a Republican consultant entitled, “How the North Carolina Republican Party Can Maintain Political Power for 114 Years.” The memo’s Rule #5 admonishes, “Lose the courts, lose the war.”

The election reform law that McCrory signed into law eliminates public financing for judicial elections, as Gavel Grab has mentioned earlier. It also raises a ceiling on the donations an individual can give to a candidate from $4,000 to $5,000 per election cycle and cuts back on campaign finance disclosure requirements. Read more

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