Gavel Grab

Archive for January, 2010

O'Connor Fears Impact of 'Citizens United'

In a rare national TV interview, retired Supreme Court Justice Sandra Day O’Connor voiced concern that the recent Citizens United decision of the Supreme Court could lead to greatly increased political spending by corporations, special interests and unions.

“I hope that it won’t. It could. It has that potential,” she told newsman Wolf Blitzer of CNN in an interview, after he asked whether the decision could “open the floodgates” for such political spending.

“Of course I’m worried about it because so much money has been going into judicial campaign races in recent years” in states where judges are elected by voters, O’Connor added. When he asked her to elaborate about the potential impact, O’Connor replied, “It has the effect of turning judges into these politically elected figures, in arms races, if you will, by people with the means to support them.”

“What the framers of our Constitution tried to achieve, when they wrote that Constitution back in the 1700s, was an independent federal judiciary,” O’Connor emphasized.

You can learn more about O’Connor’s role in advocating for an end to judicial elections from Gavel Grab.

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Obama v. Alito: Commotion, or Curtain Raiser?

Is President Obama’s in-person criticism of those with whom he disagrees on the Supreme Court, and the head-shaking response of one of them, a passing commotion–or is it something more?

You decide. Gavel Grab earlier chronicled the president’s criticism of the court’s Citizens United decision, and Justice Samuel Alito’s head-shaking and possibly mouthing of the words “not true,” and invited you to view the scene on YouTube. Now you can read sharp opinions and analysis that have followed in the wake of the State of the Union speech, and decide what it all means.

From a New York Times article: The event represented a “breach of decorum on both sides” and Obama’s “first major confrontation with the court as president.”

Headline from a Wall Street Journal commentary by Randy E. Barnett: “Obama Owes the High Court an Apology/The justices were there as a courtesy to him.”

By Andrew Cohen in The Nation: “To his credit, and contrary to the breathless reports, the President actually pulled his punches.”

From Richard Albert, in a Politico wrap-up of opposing views: “The president undermined two sacred institutions in American constitutional government: the separation of powers and judicial independence.”

Barbara A. Perry, who teaches at Sweet Briar College, told the Washington Post: “I did think it was an unfortunate display for both branches…I’ll leave the individuals aside.”

In SCOTUSblog, Lyle Denniston observed that the episode “may have a bearing on what is shaping up as the first attempt in Congress to write a new law reacting to the Supreme Court’s decision last week.” You can read all about the decision in Gavel Grab by clicking here.

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Will KSM Trial Be Moved from New York?

UPDATE: Apparently the Obama administration has given up on plans for a New York City trial of Khalid Shaikh Mohammed and four co-defendants, the Washington Post reported Friday.

The Obama administration has begun considering a shift out of Manhattan for the planned trial of accused 9/11 mastermind Khalid Shaikh Mohammed, in the wake of the “apparent collapse” of last November’s decision to hold the trial in New York City, according to the New York Times.

New York Mayor Michael Bloomberg spoke out this week against holding the trial in Manhattan (see Gavel Grab), reversing his earlier view. And some lawmakers in Washington indicate they will support legislation to deny the Obama administration the money needed to hold the trials in New York; “Congress is almost sure” to deny those funds, Fox News reported.

The White House has continued to support a trial in civilian court, not before a military commission. Some officials have put the cost of holding the trial in New York City at more than $200 million per year, with the trial possibly lasting several years.

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Two Appellate Nominations Clear Senate Panel


Judges James Wynn and Albert Diaz, nominated to sit on the 4th U.S. Circuit Court of Appeals, won overwhelming approval in the Senate Judiciary Committee. Their nominations are headed to the floor of the full Senate.

The panel voted 18-1 in favor of Judge Wynn’s confirmation and unanimously in favor of Judge Diaz’ confirmation, according to an article in the News & Observer. If confirmed by the Senate, Judge Wynn would be the circuit court’s third African American judge, and Diaz would be its first Hispanic member. You can learn more about their nominations in Gavel Grab.

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Read Justice Alito's Lips?

When President Obama firmly criticized in his State of the Union speech last week’s campaign finance decision by the Supreme Court, he delivered it to the faces of six justices in the audience. And he got a swift reaction from one of them, Justice Samuel Alito Jr., if lip-readers in the press gallery and elsewhere were accurate.

Obama said about the Citizens United decision, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”

According to a New York Times blog post, “Justice Alito shook his head as if to rebut the president’s characterization” and “seemed to mouth the words ‘not true.’” A lip-reader for The Washington Post offered a similar impression, reporting that Justice Alito “appeared to say” the words, “not true, not true.”

Obama’s criticism of the court “was beyond unusual; it was almost unprecedented,” the Blog of Legal Times wrote after doing some archival digging. Read more

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Prop. 8 Foes Seen Likely to Win at Trial

Defenders of California’s  ban on gay marriage concluded their trial testimony in a federal courtroom, but closing arguments may not come until March. According to analysts who have monitored the trial, U.S. District Judge Vaughn Walker (photo at right) is likely to rule in favor of challengers of the same-sex marriage ban, the Los Angeles Times reported.

Meanwhile, lawyers from both sides debated before the news media. According to the New York Times, plaintiffs’ lawyer David Boies  said testimony established  that marriage is a fundamental right, that harm is caused when gay people are deprived of that right, and that “there was no societal benefit to denying gays and lesbians the right to marry.”

Andrew P. Pugno, a lawyer for proponents of Proposition 8, said  the plaintiffs gave “a spectacular show” but did not tackle the central issue,  whether  voters were within their rights to establish marriage as between a man and a woman in California.

The trial of a lawsuit challenging the same-sex marriage ban, implemented after voters approved Proposition 8 in 2008, wound down after two-and-a-half weeks. Judge Walker had signaled earlier he wanted time to study legal briefs and evidence before hearing closing arguments. The case, once it is decided in California, will probably be appealed all the way to the U.S. Supreme Court. You can read more about it in Gavel Grab.

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New Edition of 'Gavel to Gavel' Report Issued

Gavel to Gavel, the National Center for State Court’s weekly summary of legislation affecting the courts, has released its latest edition, according to William Raftery of NCSC. Stories in this week’s edition include:

-Vermont weighs overhauling the state’s judicial structure.

-Florida Senator proposes a bill to guarantee 1% of all General Revenue Funds go to the courts, a civics program prepared by the Supreme Court, unified family courts, drug courts, and mental health courts, but only if another bill ending judicial immunity passes first.

-Oklahoma House member proposes  allowing the Legislature to change  criminal sentences imposed by a judge.

-Veterans Courts are proposed in Colorado, Hawaii, and Virginia.

Read the full PDF report by clicking here; you can also find Gavel to Gavel now in the blogosphere at

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House Panel Votes Impeachment Articles

A federal judge from Louisiana, G. Thomas Porteous Jr., is moving closer to impeachment proceedings by the full House of Representatives. The House Judiciary Committee voted this week to adopt four articles of impeachment against him, according to the Associated Press. If the House votes for his impeachment and the Senate convicts him, Judge Porteous would be only the eighth federal judge to be impeached, and convicted.

The judge, who has been suspended from the bench, stands accused of accepting cash improperly and of lying during his confirmation proceedings before the Senate. Read more about him in Gavel Grab.

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Bloomberg: Move Terror Trial from Manhattan

The Obama administration’s decision to try the accused 9/11 terror mastermind  in civilian court in New York has drawn new pushback.

On Wednesday, New York Mayor Michael R. Bloomberg (photo at right) told reporters he wanted to see the trial of Khalid Sheikh Mohammed moved from downtown Manhattan. “It would be great if the federal government could find a site that didn’t cost a billion dollars, which using downtown will,” the New York Times quoted him as saying. Bloomberg said regarding trial venues, “The suggestion of a military base is probably a reasonably good one.”

Two Democratic senators, James Webb of Virginia and Blanche Lincoln of Arkansas, earlier joined three Republican colleagues and one independent in urging the Justice Department to abandon plans for trying Khalid Sheikh Mohammed and co-defendants in New York.

“The attacks of 9/11 were acts of war, and those who planned and carried out those attacks are war criminals,” they wrote in a letter to Attorney General Eric Holder, according to the Times.  Since the Christmas Day bombing attempt of a Detroit-bound airliner, a campaign by Republicans and conservative activists opposed to prosecuting terror suspects in the criminal justice system has heated up.

You can read more about detainee issues from Gavel Grab, or Justice at Stake’s publication “Courting Danger” outlining the difficulty in preserving constitutional liberties while increasing preparedness for future acts of terror. The JAS site also has a web page on Civil Liberties and National Security.

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O'Connor on Courtrooms: 'Where Fairness Trumps Strength'

Retired Supreme Court Justice Sandra Day O’Connor (photo at right, courtesy of Kevin Lamarque /Reuters) continues to command quite a media audience.

As Gavel Grab reported earlier, O’Connor headlined a symposium Tuesday in Washington and warned that last week’s Citizens United decision  threatened a worsening spending war over state courts. She effectively issued a “polite public dissent” to the blockbuster Supreme Court decision, ABC News commented.

O’Connor’s remarks also got coverage in the New York Times, the Washington Post, and National Public Radio’s All Things Considered. That broadcast traced her concerns about judicial independence back in history, quoting O’Connor as saying:

“The founders realized there has to be someplace where being right is more important than being popular or powerful, and where fairness trumps strength. And in our country, that place is supposed to be the courtroom.”

The retired jurist said judicial independence in states will be compromised severely by Citizens United, which threw out key limits on corporate spending to support or oppose political candidates.

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