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Holiday Greetings from Gavel Grab

Gavel Grab extends Holiday Greetings to its readers. The staff is taking a short break, and Gavel Grab will resume updating  news about fair and impartial courts on Jan. 3, 2012.

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Tuesday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • The Supreme Court set March 26 to March 28 as the days it will hear arguments challenging the constitutionality of the new federal health care law, according to a Wall Street Journal article.
  • Rep. Rep. Gerry Connolly, D-Va., called it “ossified & anti-democratic” that the Supreme Court is resisting permitting TV cameras to broadcast the health care arguments, The Hill reported.
  • “Gableman voted with law firm after receiving free legal services,” the Milwaukee Journal Sentinel reported about state Supreme Court Justice Michael Gableman, who is the target of a new ethics controversy (see Gavel Grab).

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Scholars Promote Theory for 'Principled Constitutionalism'

After conservatives have “effectively framed the national debate over constitutional interpretation” for 40 years, it is time for progressives to “set the record straight,” two prominent constitutional scholars write.

Geoffrey R. Stone of the University of Chicago and William P. Marshall of the University of North Carolina offer their analysis in an issue brief entitled “The Framers’ Constitution: Toward a Theory of Principled Constitutionalism,” published online by the American Constitution Society and also in Huffington Post. Stone  is board chairman of the ACS.

Stone and Marshall hit the “conservative constitutional narrative” as  ”deeply unprincipled and patently wrong.” They say a “principled” reading of the Constitution requires judges to exercise judicial restraint and defer to political decision-making, except where there is “good reason to believe that the [political] process itself may have been tainted,” such as when governing majorities disadvantage historically vulnerable minority groups, or where they use their authority to stifle critics.

“In the end,” Stone and Marshall conclude, “constitutional interpretation is not a mechanical enterprise. It requires judges to exercise judgment. It calls upon them to consider text; history; precedent; values; changing social, economic, technological, and cultural conditions; and the practical realities of the times.”


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Panel: Social Media Can Pose Ethics Challenges for Courts

Navigating the social media while protecting fair and impartial courts grabbed attention from a panel convened at the American Bar Association’s annual meeting in Toronto.

Judge Herbert B. Dixon Jr. of the District of Columbia Superior Court, the event’s keynote speaker, shared with the audience his own  “Judicial Commandments Re Social Media,” according to an ABANow article. Here are two of the commandments that aim at preserving impartial and independent courts:

“A judge should not make comments on a social networking site about any matters pending before the judge — not to a party, not to a counsel for a party, not to anyone.”

“A judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer or party.”

The article noted that Judge Dixon questioned Supreme Court Chief Justice John Roberts’ recent behavior when the justice said during oral arguments that he had researched an issue in the case from the Internet.

When judges attending the session were asked to stand up if they held Facebook accounts, a “substantial majority” stood.

The panel session was entitled, “‘Friend’ is Now a Verb: Judicial Ethics and the New Social Media.”

An ABA Journal article about the session was headlined, “Panelists: Judges Should Watch Who They ‘Friend’ on Social Media and What Friends Post About them.”

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Federal Judge Charged in Drug Case

Here’s an unusual headline: “Federal judge charged with buying drugs from stripper.”

According to an Atlanta Journal-Constitution article, senior U.S. District Judge Jack T. Camp Jr., 67, was charged with purchasing cocaine and other illegal drugs while involved in a sexual relationship with an exotic dancer.

“This is not a case about judging. … It is a case about judgment,” said Bill Morrison, an attorney for Judge Camp.

The judge was appointed to the federal bench by President Reagan in 1988. Judge Camp also was charged with possession of two illegal guns, a New York Times article reported. The judge will plead not guilty, his attorney said.

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U.S. Supreme Court Briefs

As the U.S. Supreme Court prepares for a new term,  these developments were on the horizon:

  • Justice Elena Kagan, 50, will have a formal investiture ceremony Friday, and attendance is by invitation only, SCOTUSblog reported.
  • “Free speech stands front and center” in the new term, “in a pair of cases testing the First Amendment’s reach in the digital age,” according to a Wall Street Journal article.
  • An authorized biography of the late Justice William Brennan will be published Oct. 4, co-authored by Stephen Wermiel and Seth Stern. It is entitled, “Justice Brennan: Liberal Champion,” and is discussed in a Wall Street Journal report; excerpts are available by clicking here.

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Proposal Aired for 'Justice Index'

Why not statistically assess our local criminal courts much as we do for hospitals and schools?

In a New York Times commentary, Amy Bach makes that suggestion, calling for a “justice index” to show how the key features of our local courts are working, or not. When the public doesn’t know the strengths and weaknesses of the courts, she contends, there is no way to fix inefficiencies or violations of civil liberties.

Bach explains the core of the idea this way:

“The index, compiled according to national standards, would function roughly like college rankings, evaluating county courts on factors like cost, recidivism, crime reduction and collateral consequences, including whether people lose their jobs or homes after contact with the criminal justice system.”

Her column explains a possible way to set up such an index, starting with collecting data from the 25 largest counties around the U.S., and with analysis of the data by a non-profit organization. She concludes:

“Rankings for hospitals and public schools create healthy competition. To get the justice we deserve, we would do well to bring a similar approach to bear on our criminal courts.”

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Kagan to Take Oath Saturday

The newest Supreme Court justice, Elena Kagan, will be sworn in Saturday by Chief Justice John G. Roberts Jr.

The Senate voted Thursday to confirm the solicitor general to the high court. Afterward, according to a Philadelphia Inquirer article,  President Obama praised her elevation as “a sign of progress that I relish not just as a father who wants limitless possibilities for my two daughters, but as an American proud that our Supreme Court will be more inclusive, more representative, and more reflective of us as a people than ever before.”

When Kagan is seated on the bench, it will be the first time that three women justices have served simultaneously.

The 63-37 vote for her confirmation (see Gavel Grab) fell largely along partisan lines, as had the debate preceding it.

Senate Republican leader Mitch McConnell of Kentucky told reporters yesterday, “The process has become much more political than it used to be, but Senate Republicans didn’t set the standard.”

Sen. Charles Schumer, D-N.Y., said in response that he wouldn’t take off the table the possible use of filibusters to block judicial nominations in the future.  It’s “not out of the question if they are out of the mainstream,” Bloomberg quoted Schumer as saying.

On Friday, Obama planned to host a reception to honor Kagan at the White House.

You can learn more about Kagan from Gavel Grab and from the JAS Replacing Justice Stevens page.

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More Litigants are Representing Themselves

It’s another sign of difficult times, this time at the courthouse.

More Americans are facing court proceedings that could cost them dearly, whether about bankruptcy, foreclosure, or employment rights–and they choose to represent themselves due to the high cost of retaining an attorney.

The number of parties to civil cases who showed up in court last year without a lawyer increased, 60 percent of state judges reported in a survey by the American Bar Association, and 62 percent of those judges surveyed said the litigants were harmed as a result, a Wall Street Journal article reported.

The problem has affected both people with incomes too high to qualify for free legal aid, and those who do qualify, because legal aid groups have been forced to cut back at the same time the demand for free legal counsel has risen.

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Sisters of PA Justice to Stand Trial

An Allegheny County judge has ordered a trial for a Pennsylvania state senator and her sister in an alleged scandal tied to a third sister’s successful campaign for the state Supreme Court.

Sen. Jane Orie and her sister, Janine, were ordered to stand trial on charges they had Jane Orie’s publicly funded legislative staff do political work for both the senator and for the campaign of Jane Orie Melvin, now a Supreme Court justice.

A lawyer for Sen. Orie, William Costopoulos, labeled the prosecution’s evidence “trivial,” according to an Associated Press article. (The photo at right shows Sen. Jane Orie on the left, Janine Orie on the right and their brother, Jack.)

In testimony at a hearing Tuesday, former staffers for Sen. Orie said their work primarily involved envelope stuffing, knocking on doors and transporting the sisters to campaign stops. Some of the witnesses testified their campaign work for the sisters took up 40 to 70 percent of their day, KDKA-TV reported.

However, “[O]nce you factor in the comp time that these legislative staffers indicated they had coming, it has cost the taxpayers nothing,” said Costopoulos.

A lawyer for Janine Orie, James DePasquale, said charges were brought against her to add “sex appeal” to the legal case and because she is sister to a senator and an aide to Justice Melvin.  Janine Orie subsequently went on leave from her job. You can learn more background from Gavel Grab.

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