Gavel Grab

Archive for December, 2012

Gavel Grab Returns on Jan. 2

Gavel Grab will take a break until Jan. 2. Happy holidays to all our readers.

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Senate Votes to Confirm Three District Court Judges

Before leaving for a holiday break, the Senate voted to confirm three more judicial nominees. The action brought to 13 the number of district court judges confirmed by the Senate so far in its lame-duck session.

Judge Malachy Edward Mannion and attorney Matthew W. Brann were confirmed by unanimous consent to seats in the Middle District of Pennsylvania, according to a Times Leader article. Mannion is a Democrat. Brann is a Republican. They were nominated by President Obama in May.

The Senate also confirmed Judge Jon S. Tigar to serve as District Court Judge for the Northern District of California, according to a news release by Sen. Barbara Boxer, D-Calif. She had recommended Judge Tigar to the White House after candidate vetting by a bipartisan advisory committee.

All three of the judges will fill officially designated emergency vacancies, according to a statement by People for the American Way. It was headlined, “Time Running Out for Senate Confirmation of Four Circuit Court Nominees.” Four pending nominations for appeals courts have not been taken up yet during the lame-duck session.

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Lawsuit Over Senate Filibuster Rules is Dismissed

U.S. District Judge Emmet G. Sullivan dismissed on Friday a legal claim that Senate filibusters, a stalling tactic often used to block judicial nominations, deny majority rule in an unconstitutional fashion.

Judge Sullivan said that Common Cause and individual plaintiffs did not have a legal right to litigate the issue, and that it would intrude on the Senate’s powers if the court took up the case.

“Plaintiffs identify no authority for the proposition that an individual has a ‘procedural right’ to any particular form of congressional consideration or debate on a bill,” Judge Sullivan said, according to an Associated Press article. He dismissed a lawsuit challenging the Senate filibuster rules.

“The court is firmly convinced that to intrude into this area would offend the separation of powers on which the Constitution rests,” he also wrote. “Nowhere does the Constitution contain express requirements regarding the proper length of, or method for, the Senate to debate proposed legislation.”

The Senate is considering narrowing its filibuster rules, a step that could be taken when it reorganizes in early January for 2013. A SCOTUSblog post has more about the court ruling. Common Cause is a JAS partner group.

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Friday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • Ohio Gov. John Kasich named state Court of Appeals Judge Judith L. French to a vacancy on the state Supreme Court created by the resignation of Justice Evelyn Lundberg Stratton. The court continues to have a 6-1 Republican majority, and a majority of four female jurists, according to a Toledo Blade article.
  • Guaranteeing a minimum funding level for state courts will be the goal of legislation in the next round of South Carolina’s legislature, according to Gavel to Gavel blog, a publication of the National Center for State Courts. The measure proposes that the courts be guaranteed one percent of general revenue funds.

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Michigan ‘Dark Money’ Imperils Fair Courts, Watchdog Warns

The undisclosed, so-called “dark money” that flooded this year’s Michigan Supreme Court election poses a grave threat to fair and impartial courts, watchdog Rich Robinson writes in a commentary published by Dome Magazine.

Robinson heads Michigan Campaign Finance Network, a JAS partner group. By his tally, candidates spent $3.4 million in this year’s judicial election, compared to $11 million spent for TV ads by the state political parties and a nonprofit based in Washington, D.C. The TV ad expenditures, however, were not reported in state disclosure reports. Overall, he says, “undisclosed outspent candidates, 3-1.”

And that is a source of major concern for our courts, Robinson continues:

“This is a big problem. Nobody has the motivation to spend big money in a judicial race like a litigant with a high-stakes case in the appeals pipeline. Imagine being in court opposing the person who financed the campaign of the justice who is going to decide your case. Imagine not knowing it, so you can’t make a legitimate motion for recusal. Dark money undermines the whole premise of judicial impartiality.”

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More on Bork Battle: Not ‘Turning Point,’ Scholar Says

Professor David Greenberg of Rutgers University, for one, doesn’t consider the 1987 defeat of Judge Robert Bork’s Supreme Court nomination a “historic turning point” in judicial confirmations. Upon Judge Bork’s passing this week, some commentators have framed that view (see Gavel Grab).

“Although Mr. Bork’s confirmation certainly represented a major battle of the Reagan years, the campaign to defeat him was neither unprecedented nor illegitimate,” Greenberg writes in a New York Times op-ed entitled “‘Borking’ Before Bork.”

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Commentary: The Bork Battle and Our Courts Today

If young adults read about Judge Robert Bork’s passing, they may learn the history of the increased politicization of federal judicial nominations. This history saddens many commentators and leads some to broader conclusions about the character of our courts.

Judge Bork’s Supreme Court nomination was defeated after a no-holds-barred political fight. One of the strongest statements of sadness comes from Jeffrey Rosen in the New Republic:

“The Borking of Bork was the beginning of the polarization of the confirmation process that has turned our courts into partisan war zones, resulting in more ideologically divided opinions and less intellectually adventurous nominees on the left and the right. It led to the rise of right-wing and left-wing judicial interest groups, established for the sole purpose of enforcing ideological purity and discouraging nominees who have shown any hint of intellectual creativity or risk-taking.” Read more

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Proposed IL Recusal Rule Falls Short, Say JAS and Brennan Center

The Illinois State Bar Association has proposed a new judicial disqualification rule, which next will be considered by the state Supreme Court. Justice at Stake and the Brennan Center for Justice said in a letter the proposal falls short and “would be a step backward, not forward.”

According to a Madison County (Ill.) Record article, the proposed rule would require a judge to step aside from a case if there was a probability of bias after consideration of relevant circumstances, to include campaign donations.

“I think it’s important for all of us in the profession to look for ways we can address the perception of the public that politics plays way too big of a role in the way we select our judges,” ISBA President John Thies said.

Justice at Stake and the Brennan Center, a JAS partner group, wrote a letter Dec. 14 to Thies expressing concerns that the proposal “would erect a threshold for recusal that is both higher than what exists under existing ethics rules and undesirable as a matter of policy.” Read more

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Odd Allies ‘Raising a Stink’ About California Court Funding Cuts

Unusual political bedfellows — including sometime enemies — are unhappy over the possibility of another $200 million in California court funding cuts, a commentator says.

There’s an unusual level of unanimity  among disparate groups over a view that the state’s court system “has suffered too many budget cuts and is in danger of basically breaking down,” Dan Walters says in a video at the Sacramento Bee website.

California court officials have warned recently that Gov. Jerry Brown is planning to cut another $200 million from the courts’ already hard-hit budget (see Gavel Grab).

Walters has a folksy manner. “The judges are raising a stink about it, and business groups are raising a stink about it, and lawsuit lawyers are raising a stink about it,” he says, while declining to predict the outcome.

“This is a very serious thing,” Walters says. “The court system is about as important and basic a function as any government has.”

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Indefinite Detention Ban Dropped From Defense Bill

In legislation advancing toward final passage, Congressional negotiators dropped a provision that would have banned indefinite detention by the military of Americans arrested on U.S. terrain.

The provision was  contained in an annual defense authorization bill, which Congress is expected to pass this week and send to President Obama. The White House has raised a possible veto threat over some provisions in the bill, according to a New York Times article.

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