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Analysis: KS Disclosure Controversy Also Reflects Bigger Fight

Kansas Gov. Sam Brownback has drawn fire over his keeping secret the names of applicants for a Court of Appeals judgeship (see Gavel Grab) in significant part due to a broader fight, an Associated Press analysis contends.

Some of his critics are concerned that changes in the way judges are selected for the state’s second-highest court are part of a greater effort to ensure that those politicians controlling the executive and legislative branches also wrest control of the judicial branch, reporter John Hanna writes.

“This is really about remaking the courts,” said Ryan Wright, executive director of the Kansas Values Institute. “They need a court system to rubber-stamp the governor’s decisions.”

The legislature adopted a new law this year for selection of Court of Appeals judges. It dismantled the role of a judicial nominating commission that vetted candidates and made recommendations to the governor, while also making public the applicants’ names. It added state Senate confirmation of nominees picked by the governor.

A study by the American Judicature Society found that members of judicial nominating commissions in various states see themselves as checking the power of a governor. In Kansas, Brownback is a Republican, Read more

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Commentary: Ending Public Financing Moves Toward ‘Corruption’

Two defenders of North Carolina’s public financing program for appellate judicial candidates argue in a (Raleigh) News & Observer op-ed for its preservation, saying the state must not “put [its] judicial seats up to the highest bidder.”

Critics are working in the state legislature to eliminate the program, and both chambers have approved budget plans that would effectively kill it. But Paul Carrington, a Duke law professor, and H. Parks Helms, a lawyer and former legislator, contend in the op-ed that it has generally worked well to insulate appellate courts from the influence of special interest spending.

“[F]or judicial office-seekers whose job is to listen to claims and defenses of litigants with open minds, campaign funding must be controlled,” they write. “North Carolina began electing judges with its 1868 state constitution, and its judiciary has not been corrupted with money – yet. But that statement cannot be made with respect to numerous other states that elect judges with big money campaigns.”

They conclude,  ”For our legislature simply to abolish public funding would be a step favoring judicial corruption.” 

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Maryland’s Highest Court Achieves Milestone in Diversity

Gov. Martin O’Malley has named the first woman to lead the first female majority on Maryland’s Supreme Court.  The appointments were announced today in Annapolis, making Maryland one of a small number of states with female state supreme court chief justices.

As covered by the Baltimore Sun and a press release from the governor’s office, O’Malley’s appointments include elevating Court of Appeals Judge Mary Ellen Barbera (at left in photo) to be chief justice and Court of Special Appeals Judge Shirley M. Watts (at right in photo) to take the seat of the retiring Chief Judge Robert M. Bell.  If the Senate confirms her appointment, Watts will be the fourth woman on the seven-member court, creating the first female majority since the court’s inception two centuries ago.  Watts is also the first African-American woman to be appointed to the court.

The appointments have been hailed as a continuation of gains that began with the sharply increased enrollment of female law students in the 1970s.  Today, women make up approximately 30% of the federal judiciary (see Justice at Stake).  Retired Montgomery County administrative Judge Ann Harrington, who chaired the Maryland Commission on Gender Equality in 2001, commented on progress Read more

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Secrecy by Brownback, JAS Call for Disclosure are Spotlighted

Kansas Gov. Sam Brownback continues to attract media attention over his decision to withhold the names of applicants for a new Court of Appeals judgeship, under a new law giving the governor more power in the selection process.

A Legal Newsline article was headlined, “Group demands disclosure of applicants for Kan. Court of Appeals judgeship.” It reported on the demand made by Traditional Republicans for Common Sense, a group of former state legislators (see Gavel Grab). The article also reported on Justice at Stake’s issuing a statement of support and calling for disclosure.

“Kansans want their judges selected based on qualifications, not partisan politics or back-room deals,” JAS Acting Executive Director Liz Seaton said. “When judicial selection takes place behind closed doors, Kansans are left in the dark — and the potential for eroding trust in a key court is escalated.”

Meanwhile, an opinion in the Hays (Kansas) Daily News cast the new judicial selection process Read more

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After Two Years, Arizona Still Considered a “Judicial Emergency”

In 2010, U.S. District Judge John Roll sought to have Arizona designated as a “judicial emergency” due to the extended period of time over which it had had a shortage of judges. In a letter to the Ninth U.S. Circuit Court of Appeals, he described “a tsunami of federal felony cases far beyond the management capacity of the four active district judges in the Tucson division.”

Judge John Roll

Mere months later, on January 8, 2011, Roll was killed in the tragic shooting that wounded U.S. Rep. Gabrielle Giffords. His death exacerbated the state’s shortage of judges and in the view of some analysts, should have made the confirmation of more judges to the state’s bench a priority.

Yet according to an Arizona Republic editorial, today five of the thirteen federal district judgeships in Arizona remain vacant. And two years after she was nominated to the federal bench with the support of home-state Sens. John McCain and Jeff Flake, Rosemary Marquez has yet to have a confirmation hearing.

Despite an urgent need to fill the empty judgeships, the reality remains that judicial nominations are seen as a tool for partisan political maneuvers, the editorial contends.

Supreme Court Chief Justice John Roberts warned of this in 2010, saying “each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes.” This, he said, has become a “persistent problem” for the federal judiciary.

The editorial urges that the Senate respond to the judicial emergency in Arizona, and that it begin by voting on the nomination of Marquez.

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Governor to Pick Appeals Judge Under New Kansas Selection Process

Under a new judicial selection process enacted by the Kansas legislature, Gov. Sam Brownback will soon consider applications of candidates interested in an open seat on the state Court of Appeals.

The legislature dismantled a merit-based selection process for these judges and adopted a Washington-style process of direct gubernatorial appointment, with Senate confirmation. The new Court of Appeals selection law removed the role of a judicial screening commission and added the Senate confirmation mandate.

The new selection process means the vacancy on the court could exist until as late as mid-January. Once the state Supreme Court clerk certifies that the seat is available, Brownback will have 60 days to fill it. If the state Senate is not in session when he makes the appointment, action is likely to come in January, when the Senate convenes again; it would have 20 days then to confirm the appointment, according to an Associated Press article. Brownback is a Republican, and the legislature is controlled by Republicans.

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McCain: Hold Up-or-Down Votes on D.C. Circuit Nominees

President Obama’s three new nominees for a highly influential appeals court deserve up-or-down votes, Republican Sen. John McCain of Arizona said, according to a Legal Newsline article.

His stance is notable because McCain is a former GOP presidential nominee, and he apparently departs from the approach taken by some leading Senate Republicans, who contend the court at issue — the U.S. Court of Appeals for the District of Columbia Circuit — should be reduced by three authorized judgeships.

Meanwhile Sen. Susan Collins, R-Me., detailed in a Bangor Daily News op-ed her reasons for supporting the court-shrinking measure. She said partisan politics was not her motivation, in response to an op-ed in the same newspaper that had criticized her (see Gavel Grab).

Collins added, “While I support the reallocation of [D.C. Circuit] seats to other circuits because of the workload, I do recognize the unfortunate reality that this bill is not likely to pass a democratically controlled Senate. I will, therefore, assess each nominee to the D.C. Circuit whom the president sends to the Senate on his or her merits.” Read more

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‘Retaliation’ in Oklahoma Plan for Study of Judicial Term Limits?

Are fair and impartial Oklahoma courts coming under attack? Some critics described a newly announced interim study on term limits for appellate judges as retaliation for rulings that legislators didn’t like.

House Speaker T.W. Shannon (photo), a Republican, said in announcing the study, according to the Tulsa World, “The forefathers created a system of checks and balances. We must make sure that system is not completely controlled by a powerful handful of activists.”

Only days earlier, the Oklahoma Supreme Court invalidated a lawsuit reform law. The court ruled 7-2 the statute was unconstitutional because it violated what is called the state Constitution’s single-subject rule, the Insurance Journal reported. 

“We have a great judiciary in the state of Oklahoma,” said Senate Minority Leader Sean Burrage, a Democrat, according to an Oklahoman article. “They’re not a state agency; they are a third branch of the government.” He added, “It seems to me this may be retaliation by the Legislature toward the judiciary.” Read more

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‘Fact Checker’ Challenges Obama Statement on Judicial Confirmations

The Washington Post’s Fact Checker is at it again. Earlier this week, he took issue with Sen. Charles Grassley’s statement that the D.C. Circuit has a lower workload than others (see Gavel Grab). Now he’s challenging President Obama’s statement about the slow-walking of his judicial nominees.

Obama stated, “Time and again, congressional Republicans cynically used Senate rules and procedures to delay and even block qualified nominees from coming to a full vote. As a result, my judicial nominees have waited three times longer to receive confirmation votes than those of my Republican predecessor.”

The Fact Checker column by Glenn Kessler gives Obama “two Pinocchios” after examining relevant confirmation data. Kessler notes that when looking at the average period from a committee vote to a floor vote on an appeals court nomination, the 1:3 ratio holds up,  but the results are vastly different when looking at the period from nomination to a Senate floor vote. And he says Obama has recorded a slightly better overall rate for percentage of appeals court judges confirmed:

“Leaving aside Obama’s confusing language at the news conference, the president’s record is not three times worse than his predecessor — except in this circumstance. But that’s really not the most enlightening statistic. Depending on how you do the math, in some ways, Obama’s record is slightly better.”

Obama has nominated three candidates (photo) for vacancies on the U.S. Court of Appeals for the District of Columbia Circuit (see Gavel Grab). The nominations followed the Senate’s earlier unanimous confirmation of Sri Srinivasan for the same court. A Kansas City Star editorial now Read more

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Obama to Nominate Three for D.C. Circuit; Showdown Seen Likely

President Obama was poised to announce in a Rose Garden event on Tuesday his nomination of three individuals for the U.S. Court of Appeals for the District of Columbia Circuit. They are Cornelia T.L. Pillard, a professor at Georgetown University Law Center; Patricia Ann Millett, an appellate lawyer; and Robert L. Wilkins, a federal district judge, who is African American.

The high-profile manner of the announcement, usually reserved for Supreme Court justices or Cabinet nominees, signaled both the influence associated with the Washington-based appeals court and the importance the Obama administration has attached to filling the three vacancies on it.

A showdown with Republican senators over the nominations was seen as likely, and a New York Times article said Obama was moving to “set a confrontation” with them by announcing the nominations simultaneously and essentially “daring his rivals to block their nominations.”

Sen. Charles Grassley of Iowa, senior Republican on the Senate Judiciary Committee, said in advance of the announcement, “It’s hard to imagine the rationale for nominating three judges at once for this court given the many vacant emergency seats across the country, unless your goal is to pack the court to advance a certain policy agenda.” Read more

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