This Week in Review

The following message was sent today to Justice at Stake partners:

It’s been a busy week full of state and national news affecting our court system. Gavel Grab, Justice at Stake’s daily online journal, has followed the action.

I invite you to check out the following Gavel Grab articles:

Senate Committee Meets on Detainees. JAS Staff Member Jason Barrett gives a first-hand account from the hearing on an important civil liberties debate.

The Latest “Poll” on Merit Selection. JAS Executive Director Bert Brandenburg discusses a poll sponsored by a group that opposes Merit Selection.

Michigan Ballot Measure Would Eliminate Some Judicial Posts. A plan to cut two Supreme Court positions, all judges’ salaries sparks broad concern.

Wisconsin Questionnaire Pushes Ethics Reform. Press release and original posts from JAS allies Mike McCabe and Jay Heck outline a new ethics initiative.

Minnesota Sect Accused of Harassing Federal Judge. A summary of news accounts.

To see the latest articles, check Gavel Grab daily.

This week, we also released the newest edition of Eyes on Justice. To see our twice-a-month newsletter, click here.

New 'Eyes on Justice' Available

Justice at Stake has released the newest issue of our newsletter, Eyes on Justice. In this edition:

  • After Boumediene and FISA, a new season for constitutional liberties?
  • Ballot measure threatens courts in Michigan
  • California justices stage conference on impartial courts
  • State reports from Kansas and Pennsylvania.

Here is the link to our latest newsletter, and if you would like to sign up for the e-mail list, click here.

Who's Number 1?

Rankings raise eyebrows.  They start debates.  Ask any college football fan or movie buff.  But can courts be ranked?

Three legal scholars say yes, in a new Olin Law & Economics working paper from the University of Chicago.  Professors Stephen Choi, Mitu Gulati and Eric Posner review past academic efforts, which frequently concentrate on how often state courts are cited in other states. 

In their own effort—“Which States Have the Best (and Worst) High Courts?”—they take a stab at measuring judicial independence.  They focus on how much partisan preference affects decisions, assigning higher scores to judges who cross party lines when voting on cases.  They admit the limitations of this approach, but argue that “a judge who votes against partisan affiliation is most likely to be more independent.”  (Their composite rankings also seek to measure judicial productivity and quality of opinions.)

The authors note that in the U.S. Chamber of Commerce’s surveys—which canvass attorneys at big corporations—certain states do worse:  states with Democratic legislatures and  fewer common law cases, states where populations are larger, younger, poorer and more liberal, and states with larger African-American populations.  (A separate study notes that states with judicial elections garner the lowest Chamber of Commerce ratings.)

“Rankings make people uneasy,” admit the professors.  In an era when any movie can claim a thumbs-up from someone, and where partisans cherry-pick the scantest data to fit their case, that’s an understatement.   Already the University of Chicago study has been cited in connection with an effort to cut the size of the Michigan’s Supreme Court.  Being labeled a “judicial hellhole” is often a signal that a big money court campaign lurks just over the horizon.

Justice itself is famously abstract.  Subjecting it to numerical measurement raises many good questions—including many more than statistics can answer. 

Wisconsin, Grisham and Correcting the Record

It’s been an interesting spring for judicial elections. Wisconsin just endured its second meltdown campaign in two years, with special interests from both sides pouring in millions to elect their favorite candidates. (We’ve got a fact sheet.)

In bookstores, John Grisham’s latest bestseller, The Appeal, has been stirring up some interesting reactions. It wraps a legal thriller around a judicial election. The prime villain is a CEO spending millions to unseat a state Supreme Court justice in order to get a costly pollution verdict overturned. The action is set in Mississippi, but the issues have resonated around the country, and Grisham himself has pointed to West Virginia’s recent travails.

Recently the Wall Street Journal weighed in. In the process, they took a swipe at Justice at Stake, and included some inaccurate statements. We thought that it would be useful to share a letter to the editor the Journal chose not to publish, submitted by Ohio Chief Justice Thomas Moyer (a member of Justice at Stake’s Board).Read more…

New Scholarship on Federal Judicial Confirmations

Professor David R. Stras and Justice Department attorney Ryan W. Scott have published “Navigating the New Politics of Judicial Appointments” in the Northwestern University Law Review.  The piece is a Review Essay focusing on a recent book, The Next Justice by Princeton provost Christopher L. Eisgruber.  Citing “the prominent role played by interest groups and the media in shaping the process,” Stras and Scott argue:

The political pressures on Senators make it unlikely that they can become tougher and more assertive in the process, either by adopting a more probing set of questions at confirmation hearings or by rejecting nominees in favor of judicial moderates…. a “get tough” strategy by the Senate in the judicial appointments process is likely to provoke a strong response from the President.

New Scholarship on Judicial Elections

The Association for Education in Journalism and Mass Communication Online recently published “Living with Republican Party of Minnesota v. White,” by J. Gall. The paper was presented last year at the Association’s annual meeting.

This paper examines the dangers facing judicial impartiality and independence after Republican Party of Minnesota v. White struck down judicial speech restrictions. Within a framework of history, First Amendment theory and case law, this paper explores merit-based judicial selection, campaign finance reform, strict recusal standards, and a better informed public as constitutional alternatives to speech-restricting canons. Action is necessary to avoid bias and the appearance of impartiality in a judiciary facing increasing campaign costs and interest group involvement.

Survey Suggests Many Corporate Directors in Dark on Political Spending

Unless you live under a rock you probably know that spending on elections continues to rise with every cycle. That’s true at every level of political competition, and for virtually every state and federal office. This year many are forecasting the first ever $1 billion Presidential campaign. Justice at Stake has documented that much of the rise in spending in judicial campaigns can be attributed to business-backed groups (in some states, such as Pennsylvania, trial lawyers and unions are also fueling the arms race for cash).

A new survey of members of boards of directors, commissioned by the Center for Political Accountability and conducted by Mason-Dixon polling, has some eye popping numbers. The survey points out a number of startling discrepancies. For instance, 51 percent of those surveyed say they are “very” familiar with their company’s political advocacy and activities, with another 35 percent saying they are “somewhat” familiar. That sounds promising, right? Yet on a four question set testing what is really very basic knowledge of the intersection of board supervision and election law, super majorities fail miserably. Consider that 73 percent think that corporations are required to publicly disclose all of their political spending. Only 12 percent know that, in fact, that is not true.

While many corporate directors may be out to lunch on what the law actually says about corporate political activity, the good news is that there is a strong belief that disclosure of political spending is a cornerstone of corporate responsibility: 88 percent support full disclosure of spending, while 68 percent also support disclosing the standards governing their political spending. There is similarly strong support (64 percent) for transparency in the dues paid to trade associations and other tax-exempt organizations if those funds are to be used for political purposes.It’s a great poll. Check out the entire survey here.

New Scholarship on Judicial Elections

A few new articles worthy of attention: in “The Irony of Judicial Elections,” as noted by Voir Dire, David Pozen writes in the upcoming Columbia Law Review that:

Judicial elections in the United States have undergone a dramatic transformation….a rise in campaign spending, interest group involvement, and political speech has disturbed the traditional paradigm. In the “new era,” as commentators have dubbed it, judicial races routinely feature intense competition, broad public participation, and high salience….As judicial elections achieve greater legitimacy as elections, they will increasingly undermine the judiciary’s distinctive role and our broader democratic processes. There is an underappreciated tradeoff between the health of judicial elections and the health of the judiciary.

Two other upcoming articles examine the effect of the new politics of judicial elections on public confidence in the courts. In “Homegrown Institutional Legitimacy: Assessing Citizens’ Diffuse Support for Their State Courts,” Damon Cann & Jeff Yates at the University of Georgia argue in American Politics Research that:

Citizens’ views of their state courts diminish as they are exposed to “new style” state judicial election races….policy oriented campaigning and high information elections do suggest heightened judicial accountability, however such accountability is tempered by the likelihood that citizens will possibly come to perceive judges and courts as indistinguishable from their elected legislative and executive counterparts….the courts may find it increasingly difficult to weather the storm of unpopular decisions. Exacerbating this situation are the concerns of citizens over the potential quid pro quo scenarios caused by campaign contributors appearing in beneficiary’s courts. Our results indicate that citizens concerned over this possibility are especially lacking in good-will toward their state courts.

In “Challenges to the Impartiality of State Supreme Courts: Legitimacy Theory and “New-Style” Judicial Campaigns,” Professor James Gibson argues in the American Political Science Review that:

The survey data indicate that campaign contributions and attack ads do indeed lead to a diminution of legitimacy, in courts just as in legislatures. However, policy pronouncements, even those promising to make decisions in certain ways, have no impact whatsoever on the legitimacy of courts and judges….campaign activity can indeed deplete the reservoir of goodwill courts typically enjoy, even if the culprit is not the free-speech rights the U.S. Supreme Court announced in 2002.