Gavel Grab

Archive for January, 2013

Court Asked to Keep Ban on Direct Corporate Campaign Spending

Last summer, the Fourth U.S. Circuit Court of Appeals upheld a federal ban on direct corporate contributions to federal candidates. Now, the Justice Department is asking the Supreme Court to let that ruling stand.

In June, the Fourth Circuit reversed Judge James Cacheris of Virginia’s ruling that, in the wake of Citizens United, had struck down the century-old ban (see Gavel Grab). Judge Cacheris said that under Citizens United, corporations and individuals have the same rights to give money to campaigns.

If upheld, Judge Cacheris’ ruling could have major implications for judicial elections, although the case at hand deals with corporate contributions to federal candidates. A broad ruling that the First Amendment prohibits any ban on direct corporate contributions to political candidates could trickle down to judicial elections at the state level.

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Thursday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • Supreme Court Justice Antonin Scalia drew criticism this week from legal scholars for declaring the Constitution “dead, dead, dead” at an SMU Law School event. Yale Law School Professor Peter Schuck said in a Politico article that judges such as Scalia “have a set of ways of looking at the text, thinking about the text, that are personal.”
  • Ex-staffers of imprisoned former Pennsylvania Sen. Jane Orie testified this week at the corruption trial of suspended state Supreme Court Justice Joan Orie Melvin. One former staffer, Barbara Brown, said she was asked to analyze political donations of a campaign opponent while another, Jason Davidek regularly drove Melvin to campaign events, according to the Tribune Live.

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Kansas Senate Advances Attack on Merit Selection

The Kansas Senate voted 28-12 for a proposed constitutional amendment that would scrap merit selection of top-level judges and give the governor control over their appointment, subject to Senate confirmation.

The measure represents an effort by allies of Republican Gov. Sam Brownback to grab power over the judiciary since they currently control the two other branches of government, said Senate Minority Leader Anthony Hensley, a Democrat. The bill adds up to “putting politics back into the process,” he said, according to an Associated Press article.

But Senate Vice President Jeff King, a Republican, contended, “The current system does not have the legitimacy for the voters of the state of Kansas that it needs to.” He reached his conclusion despite a recent Justice at Stake poll showing 61 percent of Kansas voters oppose revising the Constitution to change the way Supreme Court justices are chosen, versus 21 percent who support change.

Although critics have attempted to revise the Kansas merit system for selecting judges before, the political landscape changed with the election in November of a large majority of conservative Republicans in the Senate, according to a Kansas City Star article. Read more

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For Some, Court Ruling Renews Focus on Confirming Judges

In some quarters, a recent federal appeals court ruling on presidential appointment power during a Senate recess is spurring renewed focus on the importance of the courts and who sits on them.

The decision voiding Obama appointments to the National Labor Relations Board “shows us, yet again, that it matters who sits on our courts,” Andrew Blotky wrote in a Reuters opinion piece that was highly critical of the three-judge panel, all appointed by Republican presidents.

Obama has nominated two individuals for the court “who are highly qualified, non-ideological lawyers with strong credentials and professional experience to serve on the D.C. Circuit – Caitlin Halligan and Sri Srinivasan,” but Republicans have filibustered or stalled the appointments, he said.

A Washington Post editorial that took issue with the court’s reasoning was headlined, “In appointment ruling, judges take a recess from common sense.” The San Francisco Chronicle editorialized, “Wrong ruling on recess appointments.” At Slate, legal scholar Akhil Reed Amar of Yale had an essay entitled, “Senate Democracy is Dead.”

 

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Texas Justice Calls Using Twitter a ‘Byproduct’ of Electing Judges

Twitter is mainly a political communications medium and a way to stay connected to the public, says Texas Supreme Court Chief Justice Don Willett. Texas Lawyer calls Willett an avid user of Twitter with more than 1,300 followers.

Over Twitter messages with a Texas Lawyer reporter, Willett says the key for him is to follow interesting people online. He also said that using Twitter was a “byproduct of elected judges.”

According to the blog, Willett frequently posts political commentary, items of note from his personal life, photos and comments about sports.

Willett says he started using the social media website about three years ago when he was up for reelection. Voters are seeking more political information online, he noted.

The justice said he would never post any thoughts or opinions on pending cases, and utilizes common sense and self-censorship.

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Scholars: Post-Citizens United, a Threat to Impartial Courts

There’s more evidence interpreted by scholars as suggesting “significant threats to the legitimacy of elected state courts” since the Supreme Court’s Citizens United decision.

Election Law blog has an abstract of a draft paper by James L. Gibson of Washington University and Gregory Caldeira of Ohio State University entitled, “Judicial Impartiality, Campaign Contributions, and Recusals: Results from a National Survey.” Here is the abstract:

“Legal scholars have of late become quite worried about how citizens form their impressions of the fairness of courts. This concern reflects the changing environments of courts, especially elected state courts, and what might generally be termed the politicization of the judiciary. The purpose of this article is to assess the effectiveness of judicial recusals at rehabilitating a court/judge tainted by perceived conflicts of interest associated with campaign activities by litigants. Read more

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Hasen: Does Filibuster of a Supreme Court Nominee Lie Ahead?

Might heightened polarization in Congress lead to a filibuster the next time a conservative Supreme Court justice steps down? Election law expert Rick Hasen raises that specter in a guest SCOTUSblog essay.

The research and analysis of Hasen, who teaches at the University of California, Irvine was mentioned in an earlier New York Times article and Gavel Grab post. He contends the Supreme Court has become more powerful because of “legislative paralysis” in Congress, caused by polarization.

At SCOTUSblog, Hasen writes that the number of senators in the political party voting “no” on the Supreme Court pick of an opposing-party president “is approaching or exceeding the filibuster level.” And in those numbers, he sees possible cause for concern:

“Depending upon how the politics plays out in a possible filibuster of a Supreme Court judicial nominee when one of the conservative Justices leave the Court, we may see either an erosion of the use of the filibuster in the Senate or a compromise which would weaken the power of the judiciary, such as term limits imposed upon future Supreme Court Justices.” 

 

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AP: Attack on Kansas Merit Selection Faces Significant Resistance

An attack on merit selection of top Kansas judges,  advancing in the state legislature, faces significant resistance, reported the Associated Press. It portrayed the proposal as a power grab by conservatives.

“The GOP right is hunting bigger game” than may be indicated by critics’ targeting the issue of a majority of lawyers belonging to a judicial nominating commission, the AP said:

“It wants to ensure that conservative governors can appoint conservative judges and that conservative legislators have a chance to block nominees they see as too liberal.”

Both GOP-majority chambers will weigh a proposed constitutional amendment to dismantle the judicial nominating commission that recommends finalists for the Court of Appeals and state Supreme Court, with the governor making the final choice. Instead, the governor would appoint these judges subject to Senate confirmation.

A two-thirds majority is required in each chamber to send the proposal to voters, and critics of merit selection believe there is enough support to win in the Senate. The outlook in the House (photo) — with a significant number of moderate Republicans — is another matter, reported the AP. It said that “the House would remain a big hurdle to overhauling the judicial selection process.”

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Wednesday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • Suspended Pennsylvania Supreme Court Justice Joan Orie Melvin’s attorney, Daniel T. Brier, attacked key prosecution witness Jamie Pavlot’s testimony during the corruption trial for the justice. Brier grilled Pavlot about emails and phone calls which could implicate Orie Melvin, says a Tribune Live article.
  • On Thursday, the U.S. Senate Judiciary Committee was scheduled to hold a hearing for a First U.S. Circuit Court of Appeals nominee, William J. Kayatta Jr. The Bangor Daily News says that Kayatta was first nominated a year ago, but his confirmation was stalled in the Senate.
  • The Supreme Court should not get involved in a political battle, and should dismiss a case on the constitutionality of President Barack Obama’s recess appointments, says Jeffrey Rosen in the New Republic. The justices have no business taking sides between Congress and the president in the war over recess appointments, Rosen argues.

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Former Senate Aide Testifies Against Suspended Justice

Former Pennsylvania Sen. Jane Orie’s ex-chief of staff, Jamie Pavlot, testified this week that Orie ordered her to follow any instructions on campaign work from sisters Joan Orie Melvin (photo), a judge, and Janine Orie, the judge’s aide.

Pavlot said Orie told her “you need to follow that as though I were telling you myself,” the Associated Press reports. Now-suspended Justice Orie Melvin is currently on trial for alleged misuse of state paid staff to run her 2003 and 2009 election bids to the state’s highest court.

Pavlot has been granted immunity in the case in exchange for her testimony, says the Pittsburgh Post-Gazette. She said political work was happening at the former legislator’s office “for all the years that I was employed.” Ex-Sen. Orie is now in prison.

During her testimony, Pavlot mentioned that the senator’s staff would sometimes receive paid time off in exchange for campaign work, and that she received instructions from Orie as well as her sisters.

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