Blog: Judicial Impeachment as a Check on Courts Is Constitutional

111002075249-supreme-court-building-story-topIn a guest blog for the Washington Post, Michael S. Paulsen, co-author of The Constitution: An Introduction delves into his analysis of the power of Congress to impeach other officials, specifically federal judges. He explains:

“By implication, at least, our book takes a more charitable view of impeachment than of either court-terminating or court-packing as a check against (believed) judicial lawlessness. Impeachment of judges for perceived deliberate abuse of office by their lawless decisions — ‘a series of deliberate usurpations’ in violation of their oaths — is directed (as the impeachment inquiry properly should be) at individual culpability, not institutional capability. That is more constitutionally defensible in principle, even if it has fairly obviously troubling implications and (like all powers and checks) is capable of being abused.”


Wednesday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • The Charleston (S.C.) City Paper has a colorful feature about the contest for Chief Justice of the state Supreme Court, which is decided by legislators.
  • Gavel to Gavel, a publication of the National Center for State Courts, reports, “After nearly getting 2/3rds majority needed in 2013, plan to eliminate judicial retirement age reintroduced in Louisiana.”
  • An Omaha (Neb.) World-Herald editorial discussing an upcoming federal district court vacancy is headlined, “Court vacancy needs attention.”
  • At the Volokh Conspiracy blog, Randy Barnett comments on a recent George Will column in an essay entitled, “‘Judicial engagement’ is not the same as ‘judicial activism.’”
  • At Constitutional Law Prof Blog, Ruthann Robson wrote a complimentary comment about a recent essay on partisanship and judicial decision-making (see Gavel Grab) by former Iowa Chief Justice Marsha Ternus.

Commentary: End Choosing Judges by Election

As an example of what’s wrong with electing state judges, a retired federal appeals court judge blogs about a recent announcement by Judge Carlo Key of Texas that he’s leaving the GOP because of its “pettiness and bigotry” toward the gay community.

Judge Key, a court at-law court judge in Bexar County, said he would run for reelection as a Democrat, according to the Austin Chronicle. Here is what retired Judge H. Lee Sarokin writes in Huffington Post about Judge Key’s statement:

“I agree with every word he uttered. I cheer his stance, his courage and his integrity—particularly in Texas. But nothing demonstrates the failings of judicial elections more than this. A judge has to announce that he opposes bigotry and discrimination and has to change parties in order to be elected! Judges should not be members of political parties. They should not run on platforms. They should not be elected based upon popularity. And they certainly should not have to proclaim that they are opponents of bigotry in order to serve.”

“So while I agree with everything Judge Key had to say, I regret that he felt he had to say it in order to serve as an impartial and fair judge. Let’s end judicial selection by election.”

Working to Improve Civil Justice System, IAALS Launches Blog

With help from four former state supreme court chief justices, the Institute for the Advancement of the American Legal System (IAALS) has launched a new blog, called IAALS Online.

IAALS, a JAS partner group, is a national research center working to improve the civil justice system.  IAALS Executive Director Rebecca Love Kourlis explains the blog’s mission this way:

“Our work depends on so many—it depends on the lawyers, judges, legislators, researchers, bar leaders, court administrators, litigants and others we’ve worked with to research, implement, and measure solutions to advance a more accessible, efficient and accountable civil justice system. And it depends on all of you who are committed to a legal system that serves society as intended. We believe IAALS Online will allow us to harness the power of national conversations to identify and improve solutions for a stronger system.”

The introductory post by Kourlis, a former Colorado Supreme Court justice, also features a series authored by the four former chief justices, called “Chief Among Our Concerns.” All of the chief justices have worked with IAALS.

These are the former chief justices and their topics:

Justice McGregor is a member of the JAS board of directors.

Appeals Court Finds U.S. Judges are Due Higher Pay

Congress cannot withhold cost-of-living adjustments that were promised for federal judges, the U.S. Court of Appeals for the Federal Circuit ruled in a 10-2 decision. The ruling reversed the court’s 2001 decision on the issue.

Lyle Denniston reported for SCOTUSblog, “After battling for years to get a pay raise that they say Congress had once promised them, six federal judges finally won in a specialized federal court on Friday.  If the ruling withstands a likely trip to the Supreme Court, those judges – and presumably others – will get annual cost-of-living increases that have been specifically vetoed by Congress. ”

ABA Journal has an article about the ruling, as does the Wall Street Journal’s Law Blog.

ACS Blog Expands on Sen. Graham and Confirming Judges

A senator who publicly urged against political gamesmanship to obstruct qualified judicial nominees has himself taken steps to block numerous appeals court nominees who were rated well qualified, according to the blog of the American Constitution Society.

In the past week, Gavel Grab has mentioned Republican Sen. Lindsey Graham’s remarks to the annual American Bar Association meeting. Graham told the audience, “The question is, are you qualified? It’s stupid to pick on something you said in law school, and pick on this or pick on that. I’m not worried about judicial activism. I’m worried about Senate activism.”

ACS Blog, in following up on Graham’s remarks, reported that he has maneuvered to block or stall at least four judicial nominees in the past year who received the ABA’s top rating for their qualifications.

On the Widespread Impact of 'Citizens United'

From Arizona to Washington, D.C., a single day’s dispatches suggest the far-reaching impact of the Supreme Court’s Citizens United decision.

The Arizona Republic reported that Arizona’s secretary of state has proposed changes in the law that would bring compliance with Citizens United. No longer, the newspaper said, was old Arizona law enforceable, because it barred corporations and unions from making political expenditures to support or oppose state candidates.

In Washington, Tom Goldstein looked ahead and predicted in SCOTUSblog that Supreme Court Justice John Paul Stevens will retire; that Justice Ruth Bader Ginsburg will not; and that the Obama administration may raise the court’s profile, uniting with congressional Democrats to portray the court as pro-corporation. Goldstein remarks:

“The public’s hostility to the Citizens United decision – consciously stoked by the White House – is pretty much off the charts.”

You can visit Gavel Grab for polling results, or click here for earlier posts about Citizens United.

Conservative Group Eyes State Judicial Battles

A conservative judicial group has changed its name to lend a sense of urgency and has announced it is tackling state judicial battles as well as those on the federal level.

The Judicial Confirmation Network has changed names to the Judicial Crisis Network, according to an article in The Blog of Legal Times, and executive director Gary Marx told the blog that “The crisis of judicial activism has spread” to state courts.  Marx sees the group participating in state supreme court contests with issue advocacy.

On its Web site, the group describes its mission in a statement: “We support legislative and legal efforts which oppose attempts to undermine the rule of law; unconstitutionally expand the power of government; politicize the enforcement of the law; threaten American sovereignty; supplant American law with foreign or international law; or bias the legal system on behalf of politically favored groups or individuals.”

It is moving its offices from Northern Virginia to Capitol Hill in Washington, D.C. In the past the group has vocally supported the confirmation of Supreme Court nominees John G. Roberts Jr. and Samuel Alito Jr. and opposed the nomination of Justice Sonia Sotomayor.

2 Different Takes on Judicial Pay

There’s another factor adding to the toll on the federal judiciary: the prospect of lucrative wages in the private sector for federal judges who step down from the bench, yet retain their full salaries from Uncle Sam.

This “trend seemingly on the rise” is reported by the Law Blog of the Wall Street Journal, which in turn credits the Los Angeles Daily Journal newspaper. Former judges who join law firms or become private mediators “can expect to earn at least double their existing salaries while still cashing their full judicial paychecks,” the Daily Journal wrote. That’s because of higher wages in the private sector and because federal judges “are entitled to full pay after retirement after going senior.”

One result is more pressure on the federal judiciary, where senior judges play a vital role, akin to a supplemental work force. For more information about issues involving judicial pay, click on Justice at Stake’s federal judiciary pay page.

Meanwhile, the Los Angeles Times examines broader issues of judicial salaries, and the story of a 44-year-old federal judge in California who quit to support his family, in an article headlined “Judicial Pay Disparity Drains Talent from Federal Bench.” A U.S. District judge is paid $169,300 annually.

U.S. Judge Quits Over Inadequate Pay

A federal judge’s decision to quit the bench for private practice, due to his concern over inadequate pay, has sparked a new wave of debate about the adequacy of judicial salaries.

U.S. District Judge Stephen Larson said the salary wasn’t enough to support his wife and seven children, the L.A. Now blog of the Los Angeles Times reported. “The costs associated with raising our family are increasing significantly, while our salary remains stagnant and, in terms of its purchasing power, is actually declining,” Larson said in a statement.

He was an appointee of President George W. Bush. He has been a district judge based in Riverside, California for 3 1/2 years and was a federal magistrate judge for six years before that.

A federal district judge is paid $169,300, according to a Reuters news story, and a first-year associate at a large firm in a big city can pull down roughly that sum in his first year.

Chief Justice John Roberts said in his 2008 annual report on the U.S. judiciary that “Congress must provide judicial compensation that keeps pace with inflation.” He added, “The judiciary’s needs cannot be postponed indefinitely without damaging its fabric.”

Above the Law, which calls itself a legal tabloid, published an article headlined, “Judge Stephen G. Larson Resigns Because Judges are Underpaid (But Are They Really?)”

The Wall Street Journal Law Blog asked readers their opinion and added,

“Of course, it’s unreasonable, in all likelihood, to expect that federal judges should make what the average BigLaw partner makes. But it also strikes me as unfortunate that the federal bench should lose Larson, who presided over the recent dispute between Mattel and MGA Entertainment over the rights to the Bratz doll (and, incidentally, a judge I’ve heard to be exceptionally hard-working) over financial issues.”

Ever since 1989, when congressional and judicial salaries were linked, judges have seen their real pay drop sharply, when compared with the rate of inflation. You can learn more from Justice at Stake’s federal judiciary pay page.