Gavel Grab

Archive for November, 2010

Blankenship to Testify in Mine Blast Probe

Don Blankenship, the CEO of Massey Energy, is expected to testify soon as part of a joint federal and state investigation into the the Upper Big Branch coal mine explosion in West Virginia,  the worst mining disaster in four decades.

Blankenship was subpoenaed, according to a Charleston Gazette article.

Blankenship’s $3 million spending to elect a West Virginia judge in 2004 figured centrally in a landmark Supreme Court decision last year, Caperton v. Massey, about the risk posed by excessive special-interest spending in judicial campaigns.

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IA Retention Vote Was a High-Turnout Factor

The opportunity to vote this month on keeping or removing three Iowa Supreme Court justices was a factor in attracting record high turnout for a midterm election in the Hawkeye State.

Regarding the vote to oust three justices on Nov. 2 (see Gavel Grab), state Democratic Party Chairwoman Sue Dvorsky told the Des Moines Register, “It’s easy to gin up somebody’s fear and anxiety if you tell them that if you go vote, the thing that you’re afraid of won’t happen.”

The heavy turnout for the retention election in turn influenced other Election Day contests, people from both political parties told the newspaper. In the retention election, social conservatives campaigned to dump the justices over a high court ruling in 2009 that permitted same-sex marriages in Iowa.

Meanwhile Doug Gross, a longtime adviser to the Republican governor-elect, Terry Branstad, said it is time to revise Iowa’s judicial selection process because it lends too much influence to the Iowa Bar Association, which he said is “so out of touch with the people of this state,” according to an Iowa Independent article. Read more

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Concern About Impact of AZ Public-Finance Case

Campaign finance reform advocates offered varying assessments of the potential impact of the Supreme Court’s review of an Arizona law for public financing of political candidates.

On Monday, the Supreme Court announced it would review a challenge to the statute, designed to limit the influence of big political spending and special interest campaign contributions (see Gavel Grab). The cases before the court are called McComish v. Bennett and Free Enterprise Club’s Freedom Club PAC v. Bennett.

The Brennan Center for Justice, which is helping defend the law, called the Supreme Court review a “critical turning point”:

“Marking a critical turning point – this will be the first time the Supreme Court has ruled in a public financing case since its decision nearly 35 years ago in Buckley v. Valeo – what the Supreme Court rules in McComish may set the limits for what campaign reform is possible for decades to come.”

The Campaign Legal Center and Democracy 21 issued a statement that emphasizes a narrower perspective:

“To be certain, regardless of how the Court ultimately decides the relatively narrow issue before it in McComish, it will not mark the death of public financing…While some states like Arizona have public financing systems that use trigger funds, other states have successfully implemented public financing systems for decades without trigger funds.” Read more

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Appeals Panel Named to Hear Prop 8 Case

When a federal appeals court panel reviews a judge’s ruling that threw out California’s gay marriage ban (see Gavel Grab), the panel will be made up of two judges appointed by Democratic presidents and one appointed by a Republican.

Judges Michael Hawkins, Stephen Reinhardt and N. Randy Smith were assigned randomly to sit on the Ninth U.S. Circuit Court of Appeals panel  that will consider the constitutionality of the ban, called Proposition 8, according to an Associated Press article.

The composition of the panel makes it less likely to reverse the lower court, the AP quoted observers as saying. A similar view was expressed by Ed Whelan in National Review Online; he called it a “bad” draw for supporters of Proposition 8. Whelan wrote that Judge Reinhardt may well be “the well be the most aggressive liberal judicial activist in the nation.” The case is likely to go to the U.S. Supreme Court.

Democratic presidents appointed Judges Reinhardt and Hawkins, and a Republican appointed Judge Smith.

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Justice Stevens Explains Death Penalty View

Retired Supreme Court Justice John Paul Stevens has explained in a book review his conclusion in 2008 that the death penalty is unconstitutional, reversing his prior position.

According to a New York Times article that previewed Justice Steven’s review, the retired jurist was candid and outspoken:

“[H]e wrote that personnel changes on the court, coupled with ‘regrettable judicial activism,’ had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.”

At one point, according to the Times, he discussed a 1991 ruling in Payne v. Tennessee that overturned an earlier decision, Booth v. Maryland, banning statements by family members of a victim in the sentencing phase of a capital murder trial, due to a concern that juries would be inflamed. Justice Stevens wrote in the book review, published in the New York Review of Books:

“I have no doubt that Justice Lewis Powell, who wrote the Booth opinion, and Justice William Brennan, who joined it, would have adhered to its reasoning in 1991 had they remained on the court.

“That the justices who replaced them did not do so was regrettable judicial activism and a disappointing departure from the ideal that the court, notwithstanding changes in membership, upholds its prior decisions.”

Justice Stevens was reviewing David Garland’s “Peculiar Institution: America’s Death Penalty in an Age of Abolition.”

On Sunday, excerpts of interviews with Justice Stevens were featured in a segment of the CBS News program “60 Minutes,” and a news summary is available by clicking here.

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New Attack Planned on MO Merit System?

A high-spending  drive to switch to direct election of judges in Missouri failed this year, but now a leader of the effort, lobbyist James Harris, is envisioning a new attack on the state’s merit selection plan in 2011.

Key to Harris’ favorable political analysis was the GOP’s securing large majorities in the state House and Senate, and also votes in Nevada against merit selection and in Iowa to oust three state Supreme Court justices, according to a St. Louis Post-Dispatch article:

“Backed by an increased GOP majority, and the big bucks of a couple of contributors willing to spend millions of dollars to change the system, Harris and his allies plan a new assault on the Missouri Plan.

“‘I think we’re in a good spot,’ said Harris.”

This year, critics of Missouri’s nationally recognized merit system for selecting judges  failed to get enough valid signatures to put the issue before voters in November (see Gavel Grab). Read more

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Tributes Honor Larry Hansen, a Friend of Democracy

Lawrence N. Hansen, program officer for the Joyce Foundation’s Money and Politics program, is the subject of tributes from organizations throughout the Midwest. Larry, who also was a good friend to Justice at Stake, died Nov. 15 of lung cancer. He was widely noted for his wit, warmth and dedication to government that served the public.

To learn more, you can see commentaries at the Midwest Democracy Network, the Illinois Campaign for Political Reform, the Wisconsin Democracy Campaign, and at the Joyce Foundation web site. Joyce funds  a wide variety of public policy initiatives in the Great Lakes region, and is a supporter of Justice at Stake.

According to the Midwest Democracy Network,  “Hansen focused most recently on reform of redistricting, the process by which state legislatures redraw political boundaries after each U.S. Census. But he saw redistricting reform as just one piece of a broader reform agenda that also included campaign financing, judicial elections, government transparency and accountability and other areas vital to a well-functioning democracy.”

In an especially fitting tribute, Cindi Canary, director of the Illinois Campaign for Political Reform, added:

“Larry had a lively, sometimes puckish, but always generous intellect and an absolutely unshakable belief that we share a responsibility to make the world a better place. Of all his many contributions, I think his greatest is planting that same belief in all of the many people he mentored. He is always going to live on in the little bit of him he leaves with each of us.”

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Supreme Court to Weigh AZ Public Finance Law

The Supreme Court has agreed to hear a Republican-supported challenge to an Arizona law that furnishes extra dollars to publicly financed candidates running against wealthy, privately funded opponents.

The case from Arizona raises questions about campaign finance laws  that were written to help publicly funded candidates get a more equal footing with self-financed candidates who outspend them.

In June, the Supreme Court signaled reservations about the Arizona law when it issued an emergency order barring the state from giving matching funds to qualifying candidates running for office, according to a Los Angeles Times article.

The Arizona law ties extra funds provided to participating candidates to the sums raised or spent on behalf of their foes. This is called a trigger mechanism. Critics have challenged the constitutionality of the provision, contending that giving taxpayer matching funds to qualifying candidates amounts to a penalty on their privately-funded opponents’ speech by inhibiting their fundraising.

A federal district judge found the Arizona provision unconstitutional, saying it violated the First Amendment because it causes candidates without public funding  to limit their own campaigning, fundraising and  spending of their own money. However, the Ninth U.S. Circuit Court of Appeals later upheld the provision.

Election law scholar Rick Hasen has written that a decision invalidating the measure would get rid of one of the most effective ways to encourage candidates to participate in public financing systems, according to a Bloomberg report. Hasen wrote Sunday in the Summary Judgments blog of the Loyola Law School, Los Angeles, faculty, that he expects the Supreme Court to strike down the Arizona public financing system:

“The court is likely to take away one of the only tools available to drafters of public financing measures to make such financing attractive to candidates.”

“While an adverse ruling by the Supreme Court in McComish would not mean that all public financing systems would be unconstitutional, it would eliminate one of the best ways to create effective public financing systems.” Read more

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Indefinite Detention Law for Terror Suspects?

Are more political signs pointing to President Obama ultimately signing a bill that would allow for the indefinite detention of terror suspects?

A NPR report suggests that may be the case, given the recent mixed verdict in the trial of Ahmed Ghailani (see Gavel Grab) and the recent election of a Republican majority to the House of Representatives:

“Administration officials are looking at the possibility at codifying detention without trial and are awaiting legislation that is supposed to come out of Congress early next year.”

Republican Sen. Lindsey Graham of South Carolina “quietly introduced” in the summer a bill to codify indefinite detention, and the incoming chairman of the House Judiciary Committee, Rep. Lamar Smith of Texas, is working on a companion bill, NPR says.

“We need a framework that is legal and defensible that balances the individuals’ rights with the right of the government to defend itself,” said Juan Zarate, a former deputy national security adviser in the Bush administration. “The way the Obama administration has approached this has been less than clear. They have applied different legal frameworks for different problems and that has created confusion.” Read more

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Senate Urged to Reduce Judicial Backlog

There is a continuing drumbeat of commentary urging the Senate to act swiftly to confirm judges to the federal bench. In the lame-duck session after Thanksgiving, the likelihood of such action is uncertain.

“Congress must act to fill court vacancies,” was the headline over a commentary in the Baltimore Sun written by law professor Carl Tobias of the University of Richmond. A Cleveland Jewish News article reported on remarks by Slate senior editor Dahlia Lithwick and others, sitting on a panel of legal experts that contended, “justice in America has been hindered and even denied” due to delays in confirming judges.

While Senate Majority Leader Harry Reid’s lame-duck agenda includes confirming judges, a Wall Street Journal essay said, “it bears no connection to time, reality or election results.” You can learn more about Obama’s judicial nominations by clicking here for Gavel Grab.

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