Gavel Grab

Archive for November, 2011

JAS 'Alternate Suggestion' on Supreme Recusal Highlighted

A National Law Journal article has spotlighted Justice at Stake’s recommendation that Justices Clarence Thomas and Elena Kagan should strongly consider giving a public explanation of their reasons for not recusing from the federal health care case before the Supreme Court.

Veteran Supreme Court observer Tony Mauro wrote the article, headlined “On health care, should Kagan and Thomas explain decision not to recuse?” Most of the subscription-only article was available publicly through’s Supreme Court Insider web site. The article began:

“Amid calls for the recusal of Supreme Court justices Elena Kagan and Clarence Thomas in the upcoming health care cases, an influential organization is making an alternate suggestion: the justices should explain their decisions not to recuse.”

The article gave some history to the recently mounting calls for recusal, then quoted excerpts from this week’s JAS statement, including the following:

“Given the importance of the health care case to the lives of many Americans, and the rare public education opportunities that such high-profile cases offer, we believe written explanations by justices Kagan and Thomas offer the best available avenue for assuring the public that the Supreme Court will be fair and impartial — adhering to the law, the Constitution and relevant Supreme Court precedent.”

To learn more about the recusal demands by political groups and individuals — but not by parties to the case, to date — see Gavel Grab.

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New Groups Seek to Limit Influence of Money in Politics

In the wake of the Supreme Court’s Citizens United decision, new reform groups are springing up that seek to push constitutional amendments to restrict the influence of money and corporate lobbying on politics.

The potential amendments have been inspired by the Occupy Wall Street movement, Eliza Newlin Carney reported in a Roll Call article. At the same time, there has been a spate of resolutions introduced in Congress to amend the Constitution to overturn “corporate personhood.”

Justice at Stake filed an amicus brief in Citizens United, and when a decision was issued, warned that the ruling threatened a cash deluge from corporate treasuries in judicial elections — and a grave threat to America’s courts. The decision cleared the way for unlimited corporate spending on independent political expenditures.

Meanwhile, advocates told a special panel investigating election reform issues in Illinois that a public financing program for candidates could help the state fight the dominance of money in elections and give citizens more of a stake in election outcomes, according to a article.

JAS has called public financing of judicial elections “one of the most powerful reforms in shielding courts from special-interest influence.” To learn more about public financing of judicial elections, see the JAS issues page about it.

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Judge Admonished for 'Injudicious' Solicitation Language

The Indiana Commission on Judicial Qualifications has admonished a Marion County judge over a campaign flyer that solicited such suggested campaign donation levels as $1,000 for a “Favorable Ruling and $500 for “So Ordered.”

Judge Rebekah Pierson-Treacy received the admonishment for an August solicitation (see Gavel Grab) about a fund-raiser, according to an Indianapolis Business Journal article. The admonishment said “a negative view of the judiciary” was presented:

“There is no evidence the judge intended to barter rulings for contributions. Nonetheless, the content of the invitation presented a negative view of the judiciary. Although Judge Pierson-Treacy’s stated intent may have been to make the traditional graduated donation levels more entertaining, the injudicious language in her invitation likely gave the impression to members of the general public that the judge’s rulings could be influenced by campaign contributions.”

The judge and her husband reviewed the contents of the flier before it was mailed, the admonishment said. After questions were raised in the news media and legal community, the planned fund-raising event was cancelled.

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Scholar: On Supreme Ethics, Don't Make Problem Worse

In a growing debate over ethics rules for Supreme Court justices, a Brookings Institution scholar says it’s hard to regulate justices’ conduct without causing more problems, and he suggests some incremental steps.

Russell Wheeler, a Visiting Fellow at Brookings, suggested these ideas in an online paper:

  • It “is worth considering” a requirement that justices disclose their reasoning for a decision on recusal, he wrote. (Justice at Stake recently said Justices Clarence Thomas and Elena Kagan should strongly consider giving a public explanation of their reasons for not recusing from the federal health care case.)
  • The justices could adopt standards to guide whether recusal is merited in particular case and describe ways for justices to advise colleagues about recusal.
  • “If the Court has adopted resolutions pursuant to the delegations of regulatory authority under the various ethics acts, or concerning the [judicial] Code of Conduct, why can’t they be made public?”

Read more

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Supreme Recusal Demands Seen as Bids to Sway Outcome

More legal analysts are pegging mounting calls for two or more Supreme Court justices to recuse from the federal health care case as transparent efforts by activists to influence the outcome.

“We have attacks on both justices on the right, like Justice [Clarence] Thomas, and on the left, Elena Kagan, trying to influence the outcome of cases by getting them to recuse,” Thomas Goldstein, a Washington lawyer and founder of, told CNN for its report on the recusal pleas.

“Particularly, we see this in the health care litigation that’s coming to the Supreme Court. All of those efforts are doomed. The justices realize that they need to participate in the case, it’s their constitutional duty, and I think this is just political posturing, on both sides, by activists.”

At ScotusBlog, veteran Supreme Court watcher Lyle Denniston writes an in-depth analysis entitled “Health care and recusal politics.” Denniston starts with a premise that it was inevitable the court would be drawn into the political fray over the new federal health care law. It is President Obama’s signature domestic achievement and a sharply polarizing issue in recent American politics. Soon Denniston segues to the recusal calls:

“When the political community starts talking excitedly about recusal, the chances are fairly strong that the [influence-the-outcome] motive is primarily at work, even when the rhetoric used includes high-sounding principle. 

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Why Airing Health Care Arguments on TV May be 'Doomed'

New York Times reporter Adam Liptak clearly doesn’t think much of the Supreme Court’s resistance to televised oral arguments, especially in the federal health care case next March.

Yet Liptak does a solid job of cataloging the justices’ objections that probably have “doomed” a request by C-SPAN to broadcast the oral arguments, in a Times article entitled, “Supreme Court TV? Nice Idea, but not Likely.”

There is an view that the public won’t understand the oral arguments, or how they fit into the court’s work. There is concern the image of justices or attorneys might be tarnished if they change their ways under heightened public scrutiny. There is a worry about justices’ personal privacy. And some justices don’t want to see their remarks removed from context into a TV sound bite.

“The arguments against cameras are mostly rooted in paternalism or self-interest,” Liptak writes. Read more

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Tuesday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • Beth Robinson, a champion for civil union and same-sex marriage laws, took the oath of office for the Vermont Supreme Court, becoming that court’s first openly gay justice, the Associated Press reported.
  • The Senate unanimously confirmed President Obama’s nomination of U.S. District Judge Christopher Droney of Connecticut for the Second U.S. Circuit Court of Appeals, according to a Hartford Courant article. 
  • “Big judges quake in face of little agency,” declared the headline for an Atlanta Journal-Constitution article about how the state’s Judicial Qualifications Commission operates.
  • New York’s Commission on Judicial Conduct called for admonishing a New York City judge over misleading political campaign literature, according to a Reuters article.

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Robert Raben Urges Closer Look at ABA Judicial Screening

Robert Raben, a former assistant U.S. attorney general who has worked to promote talented minority candidates to the federal bench, is urging a closer look at ABA judicial candidate screening processes that have had a disproportionate impact on women and minorities.

The president of The Raben Group and member of the American Constitution Society’s board of directors outlines his concerns in an ACS blog post entitled, “The ABA Ratings and Minority Nominees: Shedding Light on Disparate Impact.”

Last week, a New York Times article reported that numerous women and minorities were among President Obama’s judicial prospects receiving a “not qualified” rating from an ABA screening panel (see Gavel Grab). Raben (in photo) commends the Times reporter, Charlie Savage, for trying “to get behind the veil of the ABA” and calls for efforts to better comprehend the process:

“Rather than scramble to defend or explain, let’s figure out a way to have more open and hard and meaningful conversation about what is going on. For every tsk tsk we’ll hear about a minority candidate that just wasn’t ‘seasoned’ or of the proper ‘judicial temperament’, we might learn that the people doing the vetting, or the criteria relied upon, may be rooted in presumptions and parameters that aren’t as useful as they could be in determining whether or not a candidate will make a great or good judge.”

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JAS: Recusal Statements by Justices Would Assure Public

Supreme Court Justices Clarence Thomas and Elena Kagan should strongly consider giving a public explanation of their reasons for not recusing from the federal health care case, Justice at Stake said in a statement issued today.

The justices are not required to detail their thinking about recusal. But given the heightened attention paid to the case, JAS said, “public explanations of their reasoning would increase understanding of the court and promote public trust and confidence.” It added, “We strongly urge them to consider putting their reasoning into the public record.”

JAS said it was making its recommendation “carefully and with caution,” and it underscored two factors that require balancing: Justices have the final word about whether to hear a case or to recuse; and a key goal of recusal is to assure the public that court proceedings are fair and impartial. The JAS statement explained:

“When a case rises to the top of the public’s consciousness – to a level that is  likely to affect public confidence in the court system – there are instances where the public benefits from hearing a justice’s reasons for staying on a case or stepping aside. This heightened public interest can exist even if lawyers in the case do not formally seek a judge’s removal.”

No parties to the case have asked for either justice to recuse, but dueling pleas have been made by political groups and individuals (see Gavel Grab). If a party to the case formally seeks a justice’s recusal, JAS urged that the justice give a written decision and explanation of his reasoning.

“There is a risk that recusal demands will be pursued for political reasons in high-profile cases. Many legal ethics experts do not believe that recusal is warranted for either Justice Kagan or Thomas,” the JAS statement cautioned. JAS concluded:

“But given the importance of the health care case to the lives of many Americans, and the rare public education opportunities that such high-profile cases offer, we believe written explanations by Justices Kagan and Thomas offer the best available avenue for assuring the public that the Supreme Court will be fair and impartial—adhering to the law, the Constitution and relevant Supreme Court precedent.”

JAS is a nonpartisan national partnership working to keep our courts fair, impartial and free from special-interest and partisan agendas. To learn more about the importance of recusal, see the JAS issues page on the topic.

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Tennessee's Top Judge Tries to Demystify the Courts

At a Rotary event in Cleveland, Tenn., the state’s top judge set about to demystify the way the courts work.  Chief Justice Cornelia Clark’s remarks were reported by The Cleveland Daily Banner. Gavel Grab will share a few of the best ones here, excerpted from the newspaper:

  • “The everyday cases of judges helping people solve disputes are not often publicized.  ’If your judges are doing a good job they really shouldn’t get attention,’ she said. ‘They’re just doing what they are supposed to do. I hope that people understand that those occasional glitches are not what the system is about.’”
  • “Principles govern the judicial system, the chief justice explained. These principles dictate that laws must be understandable and fairly applied. The judicial system is a part of the checks and balances of the United States, and keeps one person from ruling everything, Clark said.”
  • “Being a judge is like being a referee in a football game, Clark said. The referee has to know the rules and understand how they apply, just as judges have to apply laws to specific situations.”
  • “’The Tennessee Supreme Court can’t ever reach out and just take an issue. It only gets to us if it comes through two other levels of our court … it has to start as a lawsuit,’ Clark said.”
  • “’To many people, including some of us that are in it, the court system is often a mystery,’ she said.”

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