A ‘Starving’ Federal Judiciary is Riddled With Vacancies

A ‘STARVING JUDICIARY’: Thanks to Senate obstruction of President Obama’s judicial nominees,  “he will likely be the first executive in nearly two decades to leave office with federal district courts less staffed than when he was sworn in,” The District Sentinel reported.

Right now there are 75 district court vacancies, up from 41 when Obama moved into the White House, or an 83 percent increase. The District Sentinel headlined its article, “Congressional Report Details A Starving Judiciary.” You can see a Congressional Research Service report on district court vacancies by clicking here and on appeals court vacancies by clicking here; they were released by the Federation of American Scientists.

DIMMING PROSPECTS FOR GARLAND CONFIRMATION?: At Bloomberg, law professor Noah Feldman of Harvard suggested that if Hillary Clinton defeats Donald Trump in November, chances for the Senate confirming Supreme Court nominee Merrick Garland in a lame-duck session don’t look great. Feldman drew a distinction between GOP ideology and partisanship. “The upshot is that Garland’s chances for confirmation now seem smaller than they did a few months ago. … Republicans might have to sacrifice a more liberal court to protect their individual political interests. But for elected politicians, that’s an easy trade to make,” he wrote.

ALLEGATIONS OF BANKROLLING A TOP JUDGE: “A federal racketeering lawsuit involving State Farm and allegations of funneling money into the election of a state judge has been granted class-action status, potentially benefiting more than 4 million policyholders,” The Chicago Tribune reported.

The allegations involve an Illinois Supreme Court election won by Lloyd Karmeier in 2004 and his voting later with a court majority to overturn a $1 billion award against the company. Karmeier, who has just been elected the court’s next chief justice, is not named as a defendant in the RICO lawsuit, Bloomberg said. There are years of twists and turns in the litigating that led to this point, and questions raised about “dark money” in judicial elections; you can learn more from earlier Gavel Grab posts.

Some Judicial Races ‘Hidden’ on Primary Ballot Now, Judge Says

Under a new process for choosing West Virginia judges in a nonpartisan election, the candidates’ names will appear so far down the primary ballot in some jurisdictions that they will seem virtually hidden, said one judge who spoke publicly about the change.

“Those elections are hidden at the back of the ballot and, in terms of how we put the ballots together, that’s a real problem in terms of judicial elections, especially on the Republican side because of the big list,” Raleigh Circuit Judge John Hutchison said, according to WVMetronews.com. Because the names of 250 potential delegates to the Republican National Convention are listed first, a voter using a voting machine in Raleigh County must first punch “next page” 17 times to get to the nonpartisan election, he said. Hutchison said a voter education effort is needed. (more…)

Idaho Court Primary Features Four Candidates for One Seat

In a primary scheduled for May 17, four candidates are running for a single seat on the Idaho Supreme Court in a nonpartisan race. Although the justices “have a heavy hand in reshaping the state for years,” according to The Associated Press, turnout is not expected to be high.

The candidates are Clive Strong, a deputy attorney general; Curt McKenzie, a Republican state senator; Robyn Brody, an attorney; and Idaho Court of Appeals Judge Sergio Gutierrez. The AP notes that “Idaho is currently just one of two states with no supreme court justices who are female or people of color.”

The Spokesman-Review has this article quoting each of the candidates regarding his or her views about diversity on the court, and this article quoting a justice who is stepping down from the bench. It is headlined, “Justice Jones: ‘Judicial elections are different kinds of animals.’”

Maryland Circuit Court Elections a ‘Muddled System,’ Editorial Says

Maryland’s process for electing Circuit Court judges, which has repeatedly been targeted for reform, is “a muddled system whose pretense at nonpartisanship fools no one,” a CapitalGazette.com editorial said.

As Exhibit A for its argument, the editorial said the Republican Central Committee invited to a local primary election forum “only GOP candidates for the four Anne Arundel County Circuit Court judgeships at stake in this year’s election,” although the elections were nonpartisan, with the names of both Democrats and Republicans appearing on the same ballots. (more…)

Voters Will Have to Protect KS Court From ‘Unfair Attacks’: Editorial

There are increasing prospects for a highly politicized retention (up-or-down) election of justices on the Kansas Supreme Court this fall, a Kansas City Star editorial warns. It adds, “Voters will have to protect the Kansas Supreme Court from unfair attacks on its independence.”

While the court has sparked the ire of numerous legislators and Gov. Sam Brownback with its orders for greater spending on public education, it actually “is acting impartially and carefully on the complicated school funding issue — as Kansans expect and deserve,” the editorial says.

Four of the court’s seven justices, out of five who will be up for retention, are expected to be targeted for removal by critics who are unhappy with their rulings. Supporters of the justices are beginning to speak out. The editorial also notes that legislators are working to advance a measure that would expand the legal grounds for impeaching Kansas justices, a bill that Justice at Stake has called unconstitutional (see Gavel Grab).

Will W.Va. Judicial Election Change Have Unintended Consequences?

With a new process under way this year for choosing West Virginia Supreme Court justices, the election on May 10 could have unintended consequences for some of those who sought reform, commentator Hoppy Kercheval writes at West Virginia Metro News.

The election will be non-partisan under a new law adopted by the legislature. Among those who pushed for change, Kercheval says, were some leading business organizations and the GOP. Yet the process might result in the election of former Attorney General Darrell McGraw, also a former justice, who has had a long political career and whose name may be better known than his four rivals, according to Kercheval. And here is why his election might displease some of the reformers: (more…)

JAS: Three Candidates for West Virginia Court Buy TV Ad Time

Three  candidates in a five-way race for the West Virginia Supreme Court have purchased television ad contracts worth a combined total of at least $274,140, Justice at Stake and the Brennan Center for Justice said on Thursday. The election will be held May 10.

TV ad contracts purchased by the campaign of former state legislator William “Bill” Wooton total at least $183,790; by incumbent Justice Brent Benjamin, at least $48,710; and by attorney Beth Walker, at least $41,640. No ad contracts have yet been recorded for two other candidates, attorney Wayne King and former state Attorney General Darrell McGraw, Jr.

“We’re seeing encouraging signs in West Virginia’s Supreme Court race so far,” said JAS Executive Director Susan Liss. “TV ad spending is not excessively high, candidates are using advertising to talk about their qualifications while avoiding attack ads and smear campaigns, and no outside spenders have jumped into the mix. Compared with what we’ve seen in judicial elections in other states so far this year and even in West Virginia’s own history, this is a significant improvement.” (more…)

Retiring FL Jurist Says Appointing Judges Better Than Elections

In Florida, a retiring Volusia Circuit Court judge publicly endorsed an appointive system for choosing judges, using a judicial nominating commission, as superior to elections. To seek election as a judge all you need is a filing fee, five years’ experience as a lawyer and “a pulse,” he said.

Circuit Judge Joseph G. Will said the following about the nominating commission-aided process, according to The Daytona Beach News-Journal, in a radio interview:

“You have the assurance of knowing when that is done that local people, not all lawyers, not all people from the community, but a nominating commission made up of people who are level headed and appointed by one governor or another as they proceed along will make that decision to make sure that the person who’s being recommended is competent and qualified for the position. They still have to have a pulse and practice for five years.”


WI Editorial: Judicial Elections are ‘Putting Justice Up for Sale’

Costly judicial elections in Wisconsin with big outside spending are fueling calls for reform. A Wisconsin Gazette editorial declares that it’s way past time to switch from judicial elections to a merit selection system for choosing qualified judges, and the editorial also criticizes the U.S. Supreme Court’s Citizens United ruling:

“Until Citizens United is thrown on the trash heap of history, we must stop electing justices. Essentially what we’re doing is putting justice up for sale.”

In the state Supreme Court election held earlier this month (see Gavel Grab), candidates and outside groups spent at least $4.3 million in the race.

Candidate Recuses When N.C. Court Hears Judicial Election Case

An attorney challenging a new law changing the way North Carolina Supreme Court justices are selected argued on Wednesday in front of those same justices. There was one exception; a justice who is seeking a new term in November stepped aside.

The new law would permit elected incumbent justices to seek a new term through a retention (up-or-down) election rather than a contested race. It was struck down by a lower court, and that decision quickly was appealed to the state’s highest tribunal.

The law’s challengers include Sabra Faires, an attorney running for the court in November, and two unlikely allies, the left-leaning ACLU of North Carolina and right-leaning Civitas Institute Center for Law and Freedom, according to The News & Observer.  Faires’ lawyer argued in court, and the other challengers in their briefs, that the shift requires a statewide vote on rewriting the state Constitution. This Constitution mandates that justices “shall be elected,” according to The Associated Press. (more…)