Gavel Grab

Archive for September, 2009

Supreme Court Takes on Gun Rights Case

The Supreme Court will decide whether challenges may be brought under the Second Amendment to state and local gun control laws, the New York Times reported today.

The high court will be faced with deciding in a Chicago case whether such laws can be tossed out as violating the Second Amendment’s “right to keep and bear arms,” according to a Los Angeles Times article.

The court last year struck down parts of a gun control law in the District of Columbia. That decision involved only federal law, and the District is a federal enclave. Prior Supreme Court decisions going back to the 19th Century stated that the Second Amendment does not apply to states, and the court did not tackle last year the validity of those precedents.

By agreeing to hear the case, the court renews a debate over interpretation of the Bill of Rights. Most but not all protections in the Bill of Rights apply not only to the federal government but to states, thanks to the 14th Amendment, added to the Constitution after the Civil War.

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Detainees Issue Now Up to 'Czar in Robes?'

A new commentary rips the Obama administration’s decision against working with Congress for a new preventive detention system for terrorism suspects and contends this will likely give Justice Anthony Kennedy, the Supreme Court’s swing vote, an outsized role on the issue.

The op-ed piece in the Washington Post, headlined “Obama’s Dick Cheney Moment,” is written by Benjamin Wittes and offers a counterpoint to a commentary highlighted earlier in Gavel Grab, written by Glenn Greenwald and published by Salon. Greenwald’s analysis was entitled, “Victory on preventive detention law: in context.”

Wittes writes that detention rules ultimately will be written by the judiciary. Since lower court judges have disagreed on key issues, and due to the ideological split on the high court, Kennedy likely will “play a disproportionate role in writing the rules of the road,” the column contends. That doesn’t sit well with Wittes, who asks:

“Is it really better to hand this complex policy problem over to the whim of a single unelected detention czar in robes than to ask the legislature to decide when America is going to detain alleged terrorists, under what rules and with what rights?”

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Intermediary Court Urged in West Virginia

A commission examining possible judicial reforms in West Virginia has been urged to recommend an intermediary appeals court.

The Independent Commission on Judicial Reform was told West Virginia is unique in that litigants have no automatic right of appeal from a circuit court decision, according to an article in the Charleston Gazette. Experts also cited other reasons–including the busy docket for the state Supreme Court, judicial errors from lower courts that are not always corrected, and not enough high court written opinions to apply state laws uniformly–in advocating an intermediary court.

For new judges, law clerks and related expenses the price tag would be about $900,000 per judge, other experts told the panel, the Charleston Daily Mail reported. Further information about earlier meetings of the commission is available here from Gavel Grab; earlier sessions heard from advocates of public financing for judicial elections and advocates of merit selection plans.

West Virginia judicial elections grabbed the limelight when the U.S. Supreme Court this year handed down a landmark decision in Caperton v. Massey. The high court said that West Virginia Chief Justice Brent D. Benjamin was constitutionally obligated to recuse himself from a case involving Massey, because the energy company’s chief executive officer  had spent $3 million to help elect Benjamin–while appealing a case to overturn a $50 million jury award. To learn more about that case, see Justice at Stake’s Caperton resource page.

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Wednesday Media Summary


Center For Competitive Politics: Will Emily’s List be appealed?
Brad Smith – September 29, 2009


WSAZ/AP: Expanding West Virginia courts topic of final study meeting
Sep 29, 2009

Charleston Daily Mail: Experts say new judges will cost $900,000
Ry Rivard – September 30, 2009


Washington Examiner:
Patriot Act helped foil New York terror plot
Editorial – September 30, 2009

The Hill/Congress Blog: JUSTICE: The remedy for government surveillance
Michael Macleod-Ball – 09/29/09
Read more

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Uighurs' Freedom May Depend on High Court

How much authority do federal judges have to “deliver real and meaningful freedom?”

In an editorial, the Washington Post urges the Supreme Court to take up a sensitive enemy detainee case that would go a ways toward answering that question. The Guantanamo Bay detainees, brothers Bahtiyar Mahnut and Arkin Mahmud, are Uighurs–Chinese Muslims who face persecution at home.

Although the administration of President George W. Bush found the brothers were not enemy combatants, and should be released, an appeals court has ruled that only the legislature and executive branch–not the courts–have authority to release them into the United States.

The high court will wrestle soon with a request to take up their case. Congress effectively has barred the men from coming into the United States, and they “could face indefinite detention if no other country comes forward. This prospect is unconscionable,” the Post said. It also called on Congress to write a narrow exception to let the brothers enter this country.

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A Supreme Court '09 Preview

Newly installed Justice Sonia Sotomayor will present a new face on the Supreme Court when it kicks off a new term Monday, but a number of legal observers will be watching for signs of more fundamental change.

Will the five-member conservative majority, which often has stopped short of completely overturning court precedents with which it disagrees, move more forcefully? Will a court that saw what some have called its most divisive term in 2008-2009 continue on that path?

The Wall Street Journal raised these questions in a preview of the upcoming term headlined, “Pocket Docket: Supreme Court’s New Season.” It provided a useful guide for court watchers, also touching on important issues that will be argued. They include potential Second Amendment limits on state weapons regulations, a cross in the Mojave National Preserve (for more on this case, see this Washington Post article), limits on corporate spending for political candidates, and a challenge to the Public Company Accounting Oversight Board. Read more

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NY Times: 'State Secrecy' Approach Still Needs Fix

The Obama administration needs to go beyond new guidelines announced for evaluating state secrecy claims by executive agencies and–”if it wants to end abuses”–support stronger safeguards proposed by key Democrats in Congress, the New York Times states in an editorial.

The Times welcomes “more stringent self-policing of executive branch secrecy claims,” and called guidelines issued by Attorney General Eric Holder Jr. a step forward–but still inadequate. The editorial cites two reasons: Holder didn’t pledge any departure from the administration’s “demand for blanket secrecy in pending cases,” nor did he back legislation to require “thorough court review of state secrets claims made by the executive branch.” (More information about the issue is available from these earlier Gavel Grab posts.)

Legislation sponsored by Sen. Patrick Leahy, D-Vt. and Rep. Jerrold Nadler, D-NY, would protect legitimate secrets, the editorial contends, stating in conclusion:

“But before ruling on a secrets claim, and possibly dismissing a lawsuit, judges would be required to review the documets or evidence in question instead of just accepting assertions in government affidavits.”

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Paris News: 'Raise Judicial Salaries'

The newspaper in Paris is calling for a pay raise for the U.S. judiciary, decrying a “brain drain” as too many of the top judges quit for more lucrative private practice.

Perhaps it’s telling that this editorial was published in the Paris, Tennessee Post-Intelligencer,  that this Paris had a population of 9,763 in the 2000 Census, that it boasts a replica of the Eiffel Tower and is home for the “World’s Biggest Fish Fry.” Concern over judicial salaries clearly has reached some parts of small-town America.

The editorial notes both the current pay of federal district judges–about $169,400 a year–and a proposal that died last year to raise it to $218,000. Meanwhile, what a federal judge’s salary can buy has declined 25 percent over 40 years. The author adds:

“The pay makes it harder to find new judges…Somehow, Congress has found ways to raise its own pay over the last 20 years. It should do the same for the judiciary.”

For information about federal judicial salaries, see the Justice at Stake resource page on the topic.

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Campaign Trail: On Money; Trial Lawyers; and Ethics

Why big donors give to judicial campaigns, political charges over taking money from trial lawyers, and a political party’s filing ethics complaints  form the basis of today’s report from judicial elections nationwide.

In Pennsylvania, most of the money given to both sides in a state Supreme Court race this cycle came from the political action committee of the Philadelphia Trial Lawyers Association, according to Choose Judges on Merit, the blog of Pennsylvanians for Modern Courts. The candidates are Jack Panella and Joan Orie Melvin.

Quoting from the Legal Intelligencer, the blog raised questions about a single organization giving too much money in a campaign, versus challenges in getting donors to contribute money that’s needed for  election costs if they have no interest in the outcome. The blog asked further:

“Why do individuals, organizations and PAC’s give to some candidates and not others? What motivates an individual or entity to contribute to a judicial candidate? And how do the answers to these questions affect the public perception of our courts — already severely diminished and inclined to believe that ‘justice is for sale?’” Read more

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Tuesday Media Summary


St. Louis Post-Dispatch: Who’s afraid of political speech?
Jeffrey Milyo and Tim Groseclose – September 29 , 2009

Redding Record-Searchlight: Do corporations have rights?
Bob Williams – September 28, 2009


Radio Business Report: Court’s Emily decision ties up FEC
September 28, 2009


NewsMax: Terror arrests a reminder of Patriot Act’s importance
Ernest Istook – September 28, 2009 Read more

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