Gavel Grab

Archive for April, 2009

Bybee Invited to Testify by Leahy

Jay Bybee, the federal appellate judge targeted by some for impeachment, has been invited by Senate Judiciary Committee Chair Patrick Leahy (D-Vt.) to explain his role in legal opinions that justified the harsh interrogation of detainees.

Bybee wrote the memos in 2002, while head of the Bush administration’s Office of Legal Counsel, before he was named to the 9th Circuit Court of Appeals.  According to the Washington Post, Leahy wrote to Bybee, “There is significant concern about the legal advice provided by OLC while you were in charge, how that advice came to be generated . . . and the role played by the White House.”

Calls for Bybee’s impeachment began in the blogosphere, but have since been embraced by some in Congress and by John Podesta, President Clinton’s chief of staff who also headed up President Obama’s transition team.

In several Gavel Grab posts, Justice at Stake has expressed deep reservations about any talk of impeachment of Bybee, saying it could open the door to recurring impeachment threats against judges over political disputes. As we recently wrote, “Impeaching judges for legal work done before they take the bench could open a real can of worms. If that can is opened, it’s won’t take long before we’re back to the days when Congressman Tom DeLay was threatening to impeach judges for a wide variety of political reasons.”

According to the Post and the New York Times, Bybee also denied reports that he regretted his legal opinions in the OLC, saying in a written statement that his opinions were written in “good faith” and involved difficult legal questions at a time of national crisis.

According to the articles, Bybee wrote:

“The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”

“The legal question was and is difficult. And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.”

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Agreement Would End Merit Selection in Indiana County

St. Joseph County, one of two jurisdictions in Indiana that appoints local judges through merit selection commissions, would begin electing Superior Court judges under an agreement reached between House and Senate conferees, according to a news report. The agreement still must be ratified by both full houses and signed by the governor.

The state will continue to choose Supreme and appellate court judges through merit selection.

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New Gavel to Gavel Issue

Gavel to Gavel, the excellent National Center for State Courts summary of legislation affecting state courts, has been released. This note from editor Bill Raftery contains the details:

  • Small claims: Oklahoma’s House and Senate vote to more than quadruple their limits from $6,000 to $25,000 while New Hampshire’s House approves an increase from $5,000 to $10,000.

  • Oklahoma’s House and Senate have now approved similar bills to allow the leaders of their respective chambers to select members of the state’s Judicial Nominating Commission.

  • Texas’ Senate and House Elections Committee approve bills to prohibit accepting or asking for campaign contributions in a courthouse.

  • Nevada’s Assembly votes to set deadlines and restructure processing for the state’s Commission on Judicial Discipline.

  • Tennessee’s legislature sends to their governor a bill to create municipal courts in any municipality that does not already have one.

  • Washington’s legislature approves a restructuring to drug court funding in the state.

  • South Carolina considers amending their constitution to allow trial judges, but not appellate jurists, and other elected officials to play the state lottery.

Read it all here:

And remember our new searchable database for all Gavel to Gavel legislation:

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Tennessee Lawmakers Split on Judicial Elections

A Tennessee Senate panel has unexpectedly voted to hold contested elections for appellate judges, putting it on a collision course with House leaders, who are seeking to modify the current appointive system.

In a surprise move, Lt. Gov. Ron Ramsey, right,  cast a tie-breaking vote in favor of a plan to begin competitive elections as early as next year. In recent weeks, Ramsey had publicly favored having the governor appoint appellate judges, and then having them face periodic retention elections.

House leaders are working toward a plan that would keep a judicial nominating commission, but would reduce the role of organized bar groups in its membership. Under their plan, the governor would choose from among a slate of candidates submitted by the commission.

The current system is slated to expire by June 30. It’s unclear what will happen if the House and Senate don’t agree on a plan. The state attorney general recently said that vacancies on the appellate and supreme courts cannot be filled until lawmakers enact a new system of judicial selection.

To learn more about Tennessee, read these earlier Gavel Grab postings.

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links for 2009-04-30

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Blagojevich's Legacy to Include Court Reforms?

Rod BlagojevichAn Illinois commission appointed in the wake of the Rod Blagojevich scandal has proposed several significant reforms affecting how judges are elected, as part of a broader program to clean up ethics problems.

In a report released Tuesday, the Illinois Reform Commission called for public financing of judicial elections, starting in 2010, as a pilot test of public financing of other statewide offices. At present, North Carolina and New Mexico publicly fund appellate court elections. The commission also called for campaign contribution limits and year-round “real-time” reporting of campaign donations.

And in a move with particular signficane for court elections, the commission also called for laws to disclose funding sources for campaigns run by so-called “independent” groups – addressing a problem that has been rampant in court elections in numerous states. The full report is at the commission’s web site,

“It would be a rich irony if Rod Blagojevich’s lasting legacy in Illinois is wide-ranging ethics reform,” said Bert Brandenburg, executive director of Justice at Stake. “The dialing-for-dollars, pay-to-play atmosphere has been a scandal waiting to happen. The commission deserves praise for specifically seeking to protect the courts from potential corruption.” 

The commission was appointed by Governor Pat Quinn after Blagojevich was removed as governor for allegedly seeking to sell the Senate seat vacated by President Obama. The panel proposed a number of reforms, including measures to remove government procurement from political influence, and tougher enforcement of ethics laws.

The state has been especially ripe for runaway spending in judicial elections. The 2004 state Supreme Court race between now-Justice Lloyd Karmeier and Gordon Maag cost a total of nearly $9.4 million–still the most expensive ever. The lack of effective campaign finance laws has allowed candidates and third-party groups nationally to run up the cost of court elections, and created growing public perceptions that justice may be “for sale.”

While the commission only targeted one reform specifically to the courts – pilot testing of public financing – it urged Governor Quinn to more closely examine problems that could undermine public confidence that fair, impartial justice is being delivered:

The scourge of judicial corruption was repeatedly noted by commenters on The Commission recognizes that many distinguished groups and advocates have explicitly and repeatedly focused on the public election of judges as an area rife with conflicts of interest and the potential for abuse. While the Commission has not heard testimony on this area, it urges future attention to this area from groups both inside and outside of state government.

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New Spending Totals From Wisconsin

The Wisconsin Supreme Court race has been over a few weeks, but the campaign spending totals are still rolling in.

According to the Wisconsin Democracy Campaign (WDC),  a Justice at Stake partner, $1.26 million was spent by special interest groups. The biggest spenders were the Greater Wisconsin Committee and the Wisconsin Education Council. Both groups combined to spend nearly $1.03 million to help keep Chief Justice Shirley Abrahamson in office, according to the Daily Cardinal. Gavel Grab discussed the involvement of the Greater Wisconsin Committee on March 26, when the group released the only third-party television attack ad this election term.

The WDC also reported that Abrahamson heavily outspent challenger Randy Koschnick. The two spent a combined $1.26 million through March 23, $1.2 million by Abrahamson. The final campaign totals will not be known until July.

To see past posts on Wisconsin, click here.

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Specter's Defection Raises Questions about Judicial Nominations

While Sen. Arlen Specter’s defection has been the source of much delight in Democratic circles, it remains unclear what, if any, effect the senator’s new party affiliation will have on President Obama’s judicial nominations.

When Sen. Specter announced Tuesday that he would run as a Democrat in 2010, many believed that this would give Democrats a highly sought 60-seat majority in the Senate.  A majority of that size would prevent Republican filibusters.

But Sen. Specter has always been independent, a fact evident in statements covered by the Blog of Legal Times that the senator made after announcing his defection.  “I have always agreed with John Kennedy that sometimes parties ask too much,” Specter said.  “And if the Democratic Party asks too much, I will not hesitate to disagree and vote my independent thinking.”

CQ Politics also reports on the effect that Sen. Specter’s defection will have on judicial nominations.  “It clearly limits — and maybe even eliminates — the Republicans’ ability to filibuster judicial nominations,” said Michael J. Gerhardt, a professor at the University of North Carolina School of Law.

The article also looks forward to possible Supreme Court nominations, should a Justice decide to step down.  Sen. Specter’s move makes it much less likely that a Republican effort to thwart President Obama’s nomination would succeed.

CQ also reminds us that Sen. Specter is not afraid to buck party lines when it comes to a Supreme Court fight.  The senator’s opposition to President Reagan’s nomination of Robert Bork to the high court in 1987 made him a pariah in his own party.

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Alterations to 'Missouri Plan' Slammed

As Gavel Grab discussed earlier this month, the Missouri legislature is debating a constitutional amendment that would alter the nonpartisan Missouri Plan by giving lawmakers more power in selecting state judges.

According to the University of Missouri’s Maneater,  incoming Missouri Bar President Harold “Skip” Walther told a forum hosted by the League of Women Voters:

This bill was designed to do one thing and that is to increase the role of politics in the way we choose our judges,” Walther said.

Walther said the resolution was hurriedly and sloppily drafted, probably in response to the ideological controversy surrounding the appointment of Missouri Supreme Court Justice Patricia Breckenridge in 2007.

“What we are most concerned about is the injection of politics into the system,” Walther said. “From my standpoint, this issue involves the significant question of whether we want to have a separation of powers in this state.”

The Kansas City Star has written an editorial criticizing those who want to change the system:

It’s becoming a rite of spring in Missouri. Another legislative session, yet another harebrained attempt to wreak havoc with the state’s judiciary.

This year’s scheme for altering the way judges are selected is among the worst yet. It sets the stage for prolonged political feuding and threatens to weaken the independence and quality of Missouri’s bench. Read more

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links for 2009-04-29

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