Gavel Grab

Archive for April, 2012

Reporter: Leaks Rare When Supreme Court Deliberating

Around the country, speculation abounds and rumors fly about what the Supreme Court may decide in the blockbuster federal health care overhaul case. A Reuters article, however, throws cold water on all the heated buzz and tells how the in-chambers process typically works. Reporter Joan Biskupic writes:

“The reality at the Supreme Court is that those who know don’t talk, and those who talk don’t know. The justices take their votes in secret, going around the table in order of seniority, with no clerks or secretaries present. Draft opinions are closely held in chambers. Discarded versions are burned or shredded. The clerk’s office does not know the outcome of a case until a decision is about to be released. And the release date is not set until all the writing and rewriting by the majority and dissent is done.”

Biskupic, a veteran observer of the Supreme Court, explains that inside the justices’ chambers, votes on a decision even can shift during the process. This level of details doesn’t usually become public until years later when deceased justices’ papers are made public.

Leaks are so rare, she writes, that the last one came more a quarter century ago. Then-journalist Tim O’Brien of ABC TV reported the court would overturn the next day part of a law requiring the federal government to balance its budget. He was right about the outcome, but not the timing. The ruling came several weeks later.


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Koch-Founded Group Poised to Engage in Florida Judicial Election

Florida’s chapter of Americans for Prosperity is poised to become involved in this year’s judicial elections in the Sunshine State, where three state Supreme Court justices are campaigning to keep their seats in retention (up-or-down) elections.

AFP “is planning to tell members about the campaign against the justices,” according to a Palm Beach Post article. The three justices have been targeted by a Florida-based conservative group, Restore Justice 2012 (see Gavel Grab).

“We’ve reached out to Restore Justice,” Slade O’Brien, AFP’s state director, told the newspaper. “There’s really a lack of information about these justices, and we want to help get the word out.” The national AFP is a conservative group founded by billionaire brothers David and Charles Koch.

According to the newspaper, the judicial retention elections already are “sparking fireworks,” although they are more typically quiet affairs. The three justices’  critics contend the jurists “represent a left-leaning bloc that has turned Florida’s court into one of the nation’s most activist judiciaries.” At the same time, the justices’ campaigns are raising unprecedented levels of money to defend themselves.

On Monday, meanwhile, former Gov. Reubin Askew and the Florida Bar unveiled a major campaign to educate Florida’s voters about merit retention elections of Supreme Court Read more

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Coburn Withholds Consent for Judicial Confirmation Hearings

For the second time in recent months, a senator has withheld consent for the Senate Judiciary Committee to proceed with confirmation hearings on a home-state judicial nominee.

Sen. Tom Coburn (photo), R-Oklahoma, has withheld his consent for hearings on the nomination to the Tenth U.S. Circuit Court of Appeals of federal magistrate Judge Robert E. Bacharach and on the nomination to the federal district court of Tulsa attorney John Dowdell, according to a article.

Judge Bacharach received the highest possible rating from the American Bar Association and was nominated three months ago. Dowdell was nominated Feb. 29.

Sen. Jim Inhofe, Coburn’s fellow Republican in the Senate from Oklahoma, has consented to hearings. A spokeswoman for Coburn said the senator was waiting on the committee Read more

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Monday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • Citing a seven-year-old civil lawsuit set to go to trial in a local court next month, a Keene (N.H.) Sentinel editorial declares, “[I]t is imperative that the nominating process for the lower court vacancies move forward efficiently” in Concord.
  • “Without courts, we can’t have justice,” was the headline for a Law Day column by Wisconsin Chief Justice Shirley Abrahamson, published in the (Madison) Capital Times.
  • The Illinois Supreme Court is expanding to two more counties located not far from Chicago an experimental program for TV cameras in the courtroom, according to a CBS Chicago report.
  • You can listen to audio of the U.S. Supreme Court’s recent oral arguments on Arizona’s immigration law by clicking here.

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‘Courts and Constitutional Democracy’ Will be Program Topic

The American Bar Association will present a program entitled “The Courts and Constitutional Democracy in America” on Tuesday evening, May 1, in Washington, D.C., and Justice at Stake will be among program partners for the event.

ABA President William T. Robinson III will preside, and distinguished panelists will include Utah Supreme Court Justice Christine Meaders Durham; Sherrilyn A. Ifill, law professor at the University of Maryland; Mickey Edwards, vice president of the Aspen Institute; Jeffrey Rosen, law professor at George Washington University; and Linda Greenhouse, Senior Research Scholar in Law at Yale Law School. The moderator will be John Milewski, Managing Editor and host, dialogue, for the Woodrow Wilson International Center for Scholars.

The 2012 Leon Jaworski Public Program  will be held from 5 to 7 p.m. at the Ronald Reagan Building, 1300 Pennsylvania Ave. NW. In addition to Justice at Stake, other program partners will include the  Woodrow Wilson International Center for Scholars, the Federation of State Humanities Councils, the League of Women Voters of the United States, the National Center for State Courts and the ABA Standing Committee on Public Education. The latter three organizations also are JAS partner groups. To RSVP, click here.

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Commentator: Wisconsin Justices Becoming a ‘Laughingstock’

The conduct of four justices on the Wisconsin Supreme Court — who boycotted part of a public administrative session — has prompted derision from Dan Holtz writing in the Eau Claire Leader Telegram.

“The childish actions by members of the Supreme Court are making them a laughingstock,” the commentator wrote in a column entitled, “Childish actions by Supreme Court justices should not be tolerated.”

“Whether you agree or disagree on an issue, elected officials should always publicly discuss and vote on matters before them. Open government is the best government,” Holt added. “Let’s grow up folks. Put on your big-boy and big-girl robes and act like the judiciary.”

Last week, four members of the seven-member court stayed away from part of a public administrative session and signaled concern the chief justice was trying to take up a matter improperly in that session (see Gavel Grab). The sharply divided court’s conduct, including an allegation of a physical confrontation,  has been the topic of derision in editorials near and far.

Regarding the incident in which one justice allegedly put a colleague in a chokehold, syndicated columnist Mike Nichols wrote a commentary in the (Manitowoc) Herald Times Reporter entitled, “Supreme Court: Justices should hash out the problem.”

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Commentary: Why Missouri’s Merit Plan is ‘Best Way’

In Missouri, where the state’s merit system for selecting appeals judges is under assault (see Gavel Grab), a local attorney has written a vigorous defense of merit for a Joplin Globe commentary.

Missouri’s well-established merit plan was voted on by the state’s citizens “in order to keep money and various political machines from dominating the election of judges, and to assist with the backlog of cases caused by judges out on the campaign trail,” attorney Bruce Secrist writes in the op-ed. It was voted the “best way,” although not a perfect way, to keep politics and campaigns out of the courts, he says.

Secrist’s column responds to an editorial in the newspaper that was critical of merit selection, and that drew in part on data from the U.S. Chamber of Commerce and the American Tort Reform Association.

Regarding a U.S. Chamber survey that ranked Missouri’s courts poorly, Secrist counters with data showing that the group’s rankings are based on surveys of lawyers and employees working for corporations worth more than $100 million or more, and they discuss entire state court systems, not just the appellate courts.

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FCC: Broadcasters Must Disclose Political Ad Purchases

The Federal Communications Commission adopted on Friday a rule to require major broadcasters to disclose online who is funding campaign ads and how much they are spending for them.

“In this kind of day and age, this kind of transparency is a no-brainer and it’s something that’s needed,” said Mary Boyle, spokeswoman for Common Cause, according to a Reuters article. Common Cause is a Justice at Stake partner group.

Some transparency advocates, however, said the action did not go far enough because the rule is limited to the largest broadcasters, a Washington Post article said.

In a Huffington Post commentary, Ciara Torres-Spelliscy, an assistant professor of law at Stetson University, commended the FCC for “a big step in the right direction” while saying other federal agencies need to fill the gap that remains.

Specifically, she referred to a petition before the Securities and Exchange Commission seeking to require disclosure from publicly traded companies of their corporate expenditures on elections.

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Senate Confirms Two Judicial Nominees After Delays

The Senate has voted to confirm two non-controversial nominees to the federal bench in Texas. With the action, Texas lost its distinction as the state with the greatest number of emergency judicial vacancies, according to a Houston Chronicle article.

Gregg Jeffrey Costa was confirmed for the Southern District on a 97-2 vote, and David Campos Guaderrama was confirmed for the Western District on a voice vote.

The Senate Judiciary Committee voted favorably on their nominations in December, but a Republican protest over President Obama’s recess appointment of a consumer watchdog effectively blocked confirmation of judicial nominees from Texas and elsewhere until an agreement enabled votes on some judges.

“While this process took far too long and there remain too many unfilled judicial vacancies in Texas, this vote represents modest progress,” Democratic Rep. Lloyd Doggett of Texas said.

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Missouri Senate Initially Backs Changes to Judicial Selection

Missouri’s state Senate gave first-round approval to a proposed constitutional amendment that would change the way appeals judges are chosen under the state’s merit selection process.

Lynn Whaley Vogel, president of the Missouri Bar, warned that the proposal would politicize the courts and would hand future governors an ability to control the nominating commission by picking most of the members. The proposal would need another favorable vote in the Senate and approval by the state House before it could be placed on the ballot for voters this year.

“These changes would harm a system that has produced fair and impartial judges for the people of Missouri for more than 70 years,” Vogel said, according to an Associated Press article. ”This would effectively eliminate Missouri’s merit-based judicial selection process.”

The proposal would add a non-lawyer named by the governor to a screening commission that recommends nominees for openings on the state Supreme Court and Court of Appeals, and it would allow the governor to appoint from a list of four nominees instead of three.

Some Republican lawmakers and interest groups have protested in recent years that lawyers, who number three on the commission, have gotten too much influence in the process, and that accountability to the public is inadequate. The Missouri Chief Justice also sits on the commission, and would be removed under the proposal.

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