Gavel Grab

Archive for October, 2008

Fla. Editorial Calls for Expansion of Judicial Appointments

The call for judicial appointments is a familiar idea, but the most recent push for it has come from an unfamiliar state.

Following a particularly harsh negative attack in an area circuit judge race, the Orlando Sentinel has published an editorial calling for statewide appointment of all judges in Florida.

The attack in question involves a remark by candidate Fred Schott, made while pointing out that his opponent, Jim Turner, has spent more money than his campaign has taken in.

Under normal circumstances, this would be a legitimate concern, given Florida law.  However, Schott tried to liken Turner to a notorious local murder suspect-saying that Turner could have written bad checks and violated the same laws as Casey Anthony, a Central Florida woman recently alleged to have murdered her 3-year-old daughter, in addition to committing financial misconduct.

The state currently appoints appelate and Supreme Court judges under a system of merit selection, but circuit and county judges are still directly elected.

“State voters rejected the idea of appointed circuit and county judges in 2000,” the editorial says.  “More campaign tactics like the one from Mr. Schott just might revive the idea.”

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Panel Discusses Human Rights in U.S.

The American Constitution Society, along with The Opportunity Agenda and The Center for American Progress hosted an event on Thursday unveiling ACS’s new study on human rights in the United States.  The report, entitled “Human Rights at Home: A domestic Policy Blueprint for the New Administration,” offers a plan of action for the new president with regard to ensuring the defense of human rights not just abroad, but also  in the United States.

The panel included Dean of Yale Law Harold Hongju Koh, whose impassioned presentation presented several “-isms” that should be avoided in the new administration, including “Go-slowism” and “Stand-patism.”  He said the next president should use the transition period to forward the agenda of ensuring human rights.  “We are the champions, my friends, of human rights,” Koh said, referring to those present at the discussion. Read more

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West Va.: Another Candidate 'Can't Be Bought'

In a sign of the times, a candidate for West Virginia Supreme Court is the second candidate nationally in recent weeks to make the televised claim that he “can’t be bought.”

Menis Ketchum, one of three candidates seeking two seats, made the claim during a recently aired bio ad (click here, and scroll to the Oct. 16 ad). Deborah Bell Paseur, running for an open Supreme Court seat in Alabama, made an identical claim in an earlier ad. As noted in Gavel Grab, that 30-second spot enraged opponent Greg Shaw, who said his integrity was being impugned.

By contrast, the West Virginia campaign is ending on a relatively civil note. Ketchum and fellow candidates Margaret Workman and Beth Walker met in a candidates forum this week that was described in a news report as somewhat low-key.

The two “can’t be bought” ads are part of an election season that has focused explicitly in many states on the perceived influence on judges of large campaign contributions.

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Spending Rages in Alabama

In this new report from the Birmingham News, Alabama Supreme Court candidates Greg Shaw and Deborah Bell Paseur have spent $2.8 million in the past six weeks, raising their combined expenditures for the campaign to $3.8 million.

Estimating that the Center for Individual Freedom has spent $1.3 million on independent pro-Shaw ads, the article said total spending on the Alabama race has now topped $5.1 million.

Additional details on Alabama spending are available in this Associated Press report.

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Michigan Poll: 57% Undecided Despite Attack-Ad Blitz


Ad Quote: “Probation for a terrorist sympathizer? We’re at war with terrorists.”

With just a few days to go before the election, 57 percent of Michigan voters still are undecided in the state Supreme Court election, despite massive spending on increasingly negative television ads.

The poll, conducted by Epic/MRA for Michigan TV stations, said that Democratic challenger Diane Hathaway, who badly trails incumbent Chief Justice Cliff Taylor in fund-raising, leads by 22 to 21 percent. The huge undecided vote echoes a survey last week that showed that 61 percent of Michigan voters hadn’t made up their minds.

According to an Associated Press report, a new ad by the state Republican Party accuses Hathaway of giving probation to a “terrorist sympathizer” who was armed and wearing combat fatigues when arrested.

Spending on TV is way up, especially by Taylor and groups backing him, according to the newest “Buying Time 2008″ report by the Brennan Center for Justice:

Taylor and the Michigan Chamber of Commerce spent a combined $1,098,330 in the two week period ending October 24 on television advertising supporting Taylor’s re-election. That sum amounted to more than four times the amount spent during that period supporting his opponent, Judge Diane Hathaway.

Ads on both sides have been harshly negative, especially by independent groups. A Michigan Chamber of Commerce ad suggests that Hathaway gave a low sentence to a sex predator. Three ads by the Michigan Democratic Party rip Chief Justice Taylor’s competence and fairness. One ad sarcastically calls Taylor a “good soldier” and urges voters to “thank him” for preventing lawsuits against companies by women harassed and raped in the workplace.

The ads are available at the Brennan Center site.

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Houston Area GOP Fears Loss of Court Seats


Should local judges be shown the door en masse because of their party identity? For the second time in four years, that could happen in a major Texas metropolitan area.

In the continuing blurring of party labels and judicial campaigns in Texas, 40 Republican judges in the Houston area are waging an unusual $1.6 million advertising campaign, nervously hoping to fend off a mass ousting by Democratic challengers.  The GOP has held a monopoly on Harris County court seats since the 1994 “Republican Revolution.”

Recent history is adding to their anxiety. Four years ago, Republican judges in Dallas were swept out of office, as state Democrats began targeting down-ballot offices in an attempt to diminish Republican dominance in Texas.

This week, a Zogby poll showed that Democratic candidates were leading Repubicans by 3.7 percent. Texas law allows straight-party voting, making judges vulnerable to organized partisan campaigns, and Democrats are leading in the presidential and senate races in Harris County, Zogby said.

The GOP ad, shown in the image above, declares that the incumbents have ”cracked down on frivolous lawsuits,  clearing the way so legitimate cases can be heard without delay.”

An Oct. 20 Houston Chronicle article tells more about the partisan showdown.

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Texas: Trial Bar Funding Democratic Ads?

Texans for Lawsuit Reform has accused the state’s plaintiffs’ bar of unleashing a “tsunami” of money through political action committees, saying these donations account for “almost all” of the state Democratic Party’s contributions in a report filed Tuesday.

In a news release, the group said that 97 percent of the $3,543,000 raised by the Texas Democratic Party in an eight-day reporting period came through a $1.5 million gift from the Texas Democratic Trust, which TLR described as a plaintiffs’ lawyer PAC, and through a total of $1.9 in donations from 17 plaintiffs’ lawyers.

According to news reports, the Texas Democratic Party has funneled $820,000 into a  television ad that attacks the “all-Republican” state Supreme Court as tilted in favor of businesses. The party is airing the ad on behalf of three Democratic challengers, Sam Houston, Jim Jordan and Linda Yanez, in the hopes of breaking the Republican’s longtime 9-0 lock on the court. 

An ad by Supreme Court Justice Wallace Jefferson focuses on his personal heritage as a descendant of slaves and on his professional qualifications. An ad by Justice Dale Wainwright calls him “a respected legal scholar and a proven conservative.” A radio ad, accessible at incumbent Phil Johnson’s web site, cites his”conservative judicial philosophy,” adding that Johson “has  built a reputation for calling cases as he sees them, and ruling fairly.”

To see previous Gavel Grab listings on Texas, click here.

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links for 2008-10-30

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Today's Journal Editorial-Correcting the Record

It’s not the first time, but today a Wall Street Journal editorial based its case against merit selection on two falsehoods.

First, it was wrong in characterizing who supports and opposes nonpartisan appointment of judges, who then must face the voters through regular retention elections.

Merit selection is simply not a left-right issue, though some want it to be. It has support from members of both parties.   Members of the national Federalist Society have weighed in on both sides.   Plenty of conservatives and liberals support and oppose merit selection.

Surveys also show that merit selection enjoys broad support within the business community.  According to a 2007 Zogby poll, 71 percent of business executives support merit selection, because it promotes quality and stability on the bench. Many executives also are tired of being asked to pony up the money for electing judges, and they are keenly aware that elections can install pro-plaintiffs judges just as easily as they can remove them.

More evidence of the canard about unified business opposition to merit can be read in this pro-merit blog article by Walter Olson, who has been dubbed the “king of tort reform,” and this report by the free-market Show-Me Institute, which says that merit is the best system for business. 

Indeed, in Greene County, Missouri, (see previous item), a leading spokesman for an effort to replace competitive elections with an appointment/retention election system is the president of the local Chamber of Commerce. 

The second falsehood is the oft-repeated (but never documented) accusation that merit is being “pushed hard” by Justice at Stake and other reform groups.  For the record, Justice at Stake, which is a nonpartisan 50-member partnership, does not prefer one method of judicial selection over another.  We have partners and board members who are pro- and anti-merit selection.  Unlike our critics, our ranks contain Republicans and Democrats, conservatives and liberals, and defense and plaintiffs attorneys.

Beyond the pedestrian falsehoods, we couldn’t help but appreciate the deeper irony:  over five anxious paragraphs, the Journal lays out attempts by trial lawyers to invest money into justices of their choice to reverse years of elections won by groups seeking to limit lawsuit awards.

We welcome their concern.  If the Journal believes that justices whose campaigns are funded by trial lawyers will be partial to trial lawyers once elected, perhaps they’ll be more inclined to understand the core concern of most Americans about no-holds-barred judicial elections.

According to a Justice at Stake and other surveys, three-quarters of all Americans believe that campaign contributions could affect courtroom decisions. That’s an unhealthy, and preventable, cost. Public trust in the courts is essential to our democracy. Any of a wide array of reforms to preserve that trust is worth considering.

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Local Merit Vote Explodes Into National Campaign


A local election in Greene County, Missouri, on whether to adopt merit selection of trial judges-the kind of decision that would have occurred in obscurity 10 years ago-has morphed into a national campaign by opponents of the move.

Former  U.S. Attorney General (and Missouri Governor) John Ashcroft, who hails from Greene County, appeared in a television ad urging voters to reject Question 1, which would replace competitive elections for judges with a system of nonpartisan appointments and retention elections.

Most of the funding for the opposition group, Greene Countians Against Question 1, is coming from Missourians for Open and Accountable Judicial Selection. The Jefferson City, Mo., group, whose ultimate revenue source is unknown, has invested $135,000 in the campaign, including this $110,000 donation reported to the Missouri Secretary of State’s Office.

Today, a Wall Street Journal editorial mentioned the Greene County election as part of a larger attack on trial lawyers and merit selection.

Funding and organization of the Greene County initiative has been spearheaded at the local level, with support from the bar and business groups such as the Springfield Area Chamber of Commerce.

A pro-merit television ad features local businessman Jack Stack, while a radio ad features Doug Pitt, president of the local Chamber of Commerce and brother of actor Brad Pitt. More on the pro-merit side is available at

 The Greene County election also is the subject of an Associated Press article.

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