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Tuesday Gavel Grab Briefs

After the U.S. Supreme Court left intact certain limits on judicial speech in Wisconsin and Indiana (see Gavel Grab), the executive director of the Wisconsin Judicial Commission commended the outcome.

“I am glad that that’s the court’s decision. Now, more than ever in this state, the importance of a non-partisan and independent judiciary has been shown, and this advances that,” said James Alexander, according to a Wisconsin Law Journal article. He was a defendant in one of the cases.

In these other dispatches about fair and impartial courts:

  • “[Supreme Court Justice Sonia] Sotomayor Pessimistic Public, Senate Will Ever Be Pleased With Judicial Confirmations,” declared a headline for a National Journal article about the judge’s remarks to an audience in New Jersey.
  • New Jersey Gov. Christopher J. Christie has agreed, in a political deal with the Senate president, to nominate Anne Patterson for a state Supreme Court seat that will become vacant after Justice Roberto Rivera-Soto steps down in September, the Newark Star-Ledger reported. The governor backed down from insisting she fill a seat that was vacated when Christie refused to reappoint Justice John Wallace Jr. (see Gavel Grab for background).

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A New Tempest for NJ High Court

A New Jersey Supreme Court reappointment flap in the spring has spawned a new tempest, laced with extraordinary exchanges and heated tempers and now labeled a “national disgrace” by the New York Times editorial board.

A sitting justice has pledged to abstain from further decisions on grounds the makeup of the court is unconstitutional. The state Senate president urged the justice to resign while blasting him as “the worst and most ethically challenged Justice in the history of the modern judiciary.” And the episode may not be over.

Here’s a quick chronology:

In the spring, Gov. Chris Christie made a controversial decision not to reappoint incumbent Justice John Wallace Jr., saying  the court had not done enough to give the state constitution a strict reading. It was the first time since the constitution was rewritten 63 years earlier that a governor had denied such a reappointment that was sought by a justice.

A furious controversy followed, and charges flew that the governor was jeopardizing judicial independence (see Gavel Grab). He appointed Anne Patterson, a lawyer and significant donor to Republicans. Senate Democrats, unhappy with the Republican governor’s decision, declined to consider her nomination.

Fast-forward to this month. In an opinion Dec. 10, the high court was divided over Chief Justice Stuart Rabner’s action to  replace Justice Wallace with a temporary justice. A court majority backed Justice Rabner.

One member of the court, Justice Roberto Rivera-Soto (photo above left), slammed the temporary appointment. He said the court makeup was unconstitutional and pledged to abstain from court decisions, the Newark Star-Ledger reported. Read more

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Retired Justices Speak Out on NJ Reappointment Flap

Eight retired New Jersey State Supreme Court justices have asked Gov. Chris Christie to re-think his controversial decision not to reappoint a sitting justice.

When Christie recently declined to reappoint Justice John Wallace, the governor said the court had not done enough to give the state constitution a strict reading. It was the first time since the constitution was rewritten 63 years ago that a governor had denied such a reappointment that was sought by a justice (see Gavel Grab).

According to an article in, the eight retired justices said in a statement:

There is simply no question about the intent of the framers of our Constitution: reappointment would be denied only when a judge was deemed unfit, a standard that ensured the independence of the State’s judiciary under the Constitution.

“That standard, embraced and followed for more than sixty years, is imbued with constitutional value.”

Their statement also said judicial independence was paramount to the framers of the modern constitution, and that by “unwritten rule,” governors have kept a “four/three party affiliation split” on the court over the years. Read more

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Judicial Independence Threatened in NJ?

New Jersey Gov. Christopher J. Christie’s refusal to routinely reappoint a state Supreme Court justice has stirred a furious controversy and charges the governor is jeopardizing judicial independence.

Protested an editorial in The Press of Atlantic City, “By removing a respected justice with an unblemished record for purely ideological reasons, Christie has undermined the independence and credibility of the Supreme Court.”

“Both political parties are locked in a high stakes game of political chicken over the future of the state Supreme Court,” reported a Newark Star-Ledger article. (The newspaper provided a primary source for this post.)

New Jersey’s current chief justice, who once worked for Christie and was described as a confidante of the governor, said he was “disappointed.” Justice Stuart Rabner added:

“Citizens who turn to the courts for relief are entitled to have their cases resolved by impartial judges who focus only on the even-handed pursuit of justice; litigants should never have to worry that a judge may be more concerned about how a decision could affect his or her reappointment.”

Warned former New Jersey Chief Justice Deborah Poritz, “The signal is be careful how you carry out your task of judging because that may affect whether you get tenure or not. And that affects the independence of the judiciary.”

When Christie (photo above right) declined to reappoint sitting Justice John E. Wallace Jr. (photo above left), it marked the first time a New Jersey governor did not reappoint a justice who had sought it since the state constitution was rewritten 63 years ago, according to a New York Times article. Read more

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Tuesday Media Summary


Blog Of Legal Times: Obama Nears Decision on Supreme Court Nominee
Tony Mauro – 5/3/2010

AOL News: Spill, NYC Attack May End Napolitano’s High Court Bid
Andrea Stone – 5/3/2010


LA Times: Wanted: A consensus-building justice
Christi Parsons and David G. Savage – 5/4/2010


Newsweek: Women’s Court
Daniel Klaidman – 5/3/2010

American Prospect/Tapped: Courting Diversity
Ann Friedman – 5/3/2010


NY Times: Free Speech Through the Foggy Lens of Election Law
Adam Liptak – 5/4/2010

U.S. News & World Report: On Citizens United, Democrats Demagogue Free Speech
Peter Roff – 5/3/2010

Center For Responsive Politics/ Obama Calls for Campaign Finance Reform

Pro Publica: Contrary to Citizens United Opinion, Campaign Contribution Records Lack Transparency
Sebastian Jones – 5/3/2010

PR Newswrire/BNA: Political Law after Citizens United


LA Times: Scalia’s wisdom on secrecy and voter initiatives
Editorial – 5/4/2010

Connecticut Law Tribune: First Amendment Holding Strong
KAREN LEE TORRE – 5/3/2010


NY Times: When Is a Cross a Cross?
STANLEY FISH – 5/3/2010

Read more…

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