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Editorial: TN Judiciary ‘at Risk’ Without Nominating Commission

The Tennessee legislature’s inaction to extend the life of the state’s Judicial Nominating Commission “puts the judicial branch at risk,” a Knoxville News Sentinel editorial warns. It urges the legislature to move next year to “fix the mess it made.”

The editorial board uses the recent retirement announcements of two appellate judges (see Gavel Grab) to drive home its point.

The legislature recently completed its work without extending the life of the commission that screens judicial candidates and makes recommendations to the governor. It expires after June 30. Next year, voters will be asked to approve or reject a proposed constitutional amendment to give the governor unilateral power to pick judges, subject to confirmation by the legislature.

“Lawmakers neglected to extend the life of the Judicial Nominating Commission beyond June 30, leaving commissioners scrambling to nominate replacements for [the judges]. A hurried nomination process shortchanges possible nominees and could result in an ill-advised appointment,” the editorial says.

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Four Newest US Judicial Nominees Would Make History

President Obama has nominated four women for federal judgeships, and the White House blog said each nominee would make history if confirmed.

Judge Carolyn McHugh would be the first woman from Utah to serve on the Tenth U.S. Circuit Court of Appeals; Pamela Reeves, in the Eastern District of Tennessee,  and Elizabeth Wolford, in the Western District of New York, would be the first women to sit on those benches; and Debra Brown, in the Northern District of Mississippi, would be the first African-American female  to serve as an Article III judge in that state.

Chris Kang, senior counsel to the president, said in the blog about these and other groundbreaking judicial nominations by Obama, “These ‘firsts’ are important, not because these judges will consider cases differently, but because a judiciary that better resembles our nation instills even greater confidence in our justice system, and because these judges will serve as role models for generations of lawyers to come.” He said each has the required intellect,  integrity and fair-mindedness to sit as a federal judge.

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Supreme Court a ‘Dictatorship,’ Tennessee Legislator Says

Tennessee state Sen. Mae Beavers, a former Senate Judiciary Committee chairman, recently called the U.S. Supreme Court a “dictatorship” as she pushed for a nullification bill she had introduced.

Her remark was highlighted in an article by ProPublica about some states considering making it a crime to enforce federal gun laws, and invoking a doctrine from before the Civil War called nullification. Some state bills contend the Supreme Court does not have final authority to determine a law’s constitutionality, and that states have that authority.

Beavers is a Republican. Here is an excerpt from her full remarks in February, as reported in The Tennesseean:

“I know many of you are lawyers. You’ve been to law school. You think that the Supreme Court is the ultimate arbiter of any of these laws. I don’t believe that. I don’t believe it was ever granted the authority under the Constitution. In Marbury v. Madison, they simply gave themselves that power. They declared themselves to be the ultimate arbiter of what is and what is not constitutional, and essentially setting themselves up as a dictatorship within the federal government, and I think generation after generation we have just accepted that. Read more

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Editorial: Tennessee Legislators do a Disservice to State’s Judiciary

Earlier this month, the Tennessee Legislature adjourned without renewing the state’s Judicial Nominating Commission. The panel is responsible for interviewing appellate court applicants, and recommending three names to the governor, who chooses one to appoint.

By not renewing the commission, the Legislature failed to fulfill the state’s business at a basic level, argues a Knoxville News Sentinel editorial.

The commission will be terminated on July 1, and without it, Tennessee has no constitutional method in place to replace a judge who resigns, retires or dies in office, said executive director of the Tennessee Bar Association, Allan Ramsaur (see Gavel Grab). Read more

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JAS: Tennessee Amendment Would ‘Politicize’ Judicial Selection

The Tennessee House approved on Monday a proposed constitutional amendment to dismantle merit selection for choosing top judges. Justice at Stake warned that the proposal would “inject partisan politics into the state’s judicial selection process.”

The proposal would eliminate a merit-based judicial nominating commission and give the governor unilateral power to pick judges, subject to confirmation by the legislature. Judges later would face a retention (up-or-down) election to stay on the bench.

The House voted 78-14 in favor of the proposal, according to an Associated Press article, and the Senate had approved it earlier. It will come before voters in next year’s general election.

In a statement, JAS Executive Director Bert Brandenburg called legislators’ pursuit of the measure “troubling.” He explained:

“For many years, Tennesseans have benefited from a process for picking judges that focuses on  qualifications, not partisan politics. SJR 02 would replace the highly regarded ‘Tennessee Plan’ with a Washington-style system that gives the Governor unilateral authority to pick judges, and subjects confirmations to DC-style gridlock and backroom deals.” Read more

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Monday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • Retired Supreme Court justices such as Sandra Day O’Connor continue to have an impact on court decisions nationwide long after they choose to step down. A Washington Post article describes O’Connor’s work on lower federal courts, including one case on voter registration which the U.S. Supreme Court is scheduled to review.
  • With legislation for Tennessee’s Judicial Nominating Commission set to expire at the end of June, Tennesseans should either amend the constitution to reflect the current judicial selection system, or let voters elect their judges, argues a Tennessean column.
  • Indiana Chief Judge John Pera is planning to send a written response to Lake Juvenile Court Judge Mary Beth Bonaventura after she requested that her replacement to the bench be chosen through merit selection, reports the Northwest Indiana Times. Traditionally, Bonaventura’s replacement would be a transfer from another court, the article says.
  • Former al-Qaeda spokesman Sulaiman Abu Ghaith was charged with conspiracy Friday in a New York federal courtroom. A Washington Post op-ed says that he could have been left in “indefinite legal limbo” if tried by a military tribunal in Guantanamo Bay; the alternative, a trial in federal court, “would have greater legal and political legitimacy both here and internationally.”
  • Accused criminals connected to the 9/11 attacks should be tried in U.S. federal courts, not military tribunals at Guantanamo Bay, argues Donna Marsh O’Connor in the Huffington Post. O’Connor’s daughter died on 9/11, and the families who lost loved ones that day deserve a day in federal court, she says.

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Opinion: Keep Tennessee’s Judicial Nominating Commission

Tennessee’s judicial branch should be viewed as fair and impartial by the public, with qualified judges who are not swayed by political contributions, states Tennessee Bar Association President Jackie Dixon in a Tennessean opinion.

The Tennessee General Assembly adopted a system of merit selection in 1971 for appellate judges, utilizing a judicial nominating commission to vet candidates for vacant judgeships. In 1994, lawmakers expanded the system to include Supreme Court and trial judges, Dixon says.

Now, the Tennessee Judicial Nominating Commission is set to expire on June 30, leaving the “judicial system at risk”, Dixon says. Tennessee needs the commission in order to quickly fill judicial vacancies, she argues. Read more

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Wednesday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • Tennessee Gov. Bill Haslam dismissed the suggestion that appeals court judges could be elected by popular vote in 2014 while speaking to the Davidson County Republicans Tuesday, reports The Tennessean. The Tennessee Supreme Court has found the current judicial selection system constitutional twice, and Haslam says he doesn’t “think that we’re going to come up with a different process” between now and 2014, when the Tennessee Constitution could be amended.
  • Regardless of Jeffrey Boyd’s legal background, a Beaumont Enterprise op-ed finds it “unsettling to see [Gov. Rick] Perry routinely acting like a Chicago alderman doling out patronage for such an important position.” A vacancy on the Texas Supreme Court, the op-ed continues, should be treated with respect, not “brazen politics.”
  • In Florida, Senate Judiciary Committee Chairman Tom Lee says that while it is “probably too soon to tell” whether major changes to the state’s judicial system will be attempted in the coming year, it looks unlikely, reports the Sunshine State News. “I certainly don’t have an agenda to do anything aggressive with respect to the court system, except trying to help make it more efficient,” Lee said.



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Michigan Bill Aims to Limit State Court Use of International Law

When the Michigan legislature comes back into session in late November, it will decide the fate of a bill aimed at limiting the state judiciary’s use of foreign law.

According to the blog of the National Center for State Courts (NCSC), Gavel to Gavel, the bill states that a foreign law shall not be enforced if doing so “would violate a right guaranteed by the constitution of this state or of the United States.” NCSC is a JAS partner organization.

As Gavel Grab has previously covered, Michigan is not the first state to propose a law like this.  Tennessee, Louisiana, Oklahoma and Alabama have all enacted some version of this legislation. As of February, 21 states were considering proposals that would limit the ability of courts to apply the laws or legal codes of other nations.

Michigan’s state legislature will vote on the bill November 27th.

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Nominee in Limbo, Seat Declared ‘Judicial Emergency’

The Senate Judiciary Committee approved in April the nomination of lawyer Robert Shelby for a federal district court judgeship in Utah. But the nomination now “is stuck in limbo amid partisan gridlock” and has not come up for a vote by the full Senate, according to a Salt Lake Tribune article.

Court officials have declared the seat a “judicial emergency,” meaning that “a vacancy has caused the court to overflow with cases with too few judges to hear them,” according to the article.

The office of Sen. Orrin Hatch, R-Utah, said there is no controversy over Shelby’s nomination, and the judicial candidate is qualified. Hatch is confident that Shelby should not have trouble winning confirmation, the senator’s office said. The senator’s spokesman said the timing of any confirmation vote would be up to the Senate Majority Leader, Democrat Harry Reid.

On Tuesday, the Senate voted 94-2 to confirm  Memphis Criminal Court Judge John T. Fowlkes Jr., for a federal judgeship in the Western District of Tennessee, the Memphis Commercial Appeal reported.

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