Gavel Grab

California Bill for Jury Inclusion of Legal Noncitizens is Vetoed

California Gov. Jerry Brown has vetoed a bill that would allow juries to include noncitizens living in the state legally.

“Jury service, like voting, is quintessentially a prerogative and responsibility of citizenship,” Mr. Brown said in a veto message, according to the New York Times. “This bill would permit lawful permanent residents who are not citizens to serve on a jury. I don’t think that’s right.”

The bill’s backers said the legislation would facilitate efforts to give noncitizen defendants a jury of their peers. Some newspaper editorial boards and legal scholars questioned the bill on grounds there should be rights and responsibilities reserved for citizens only. To learn more about the bill, see Gavel Grab.

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Kagan on Diversity and the ‘Public Theater’ of Confirming Court Picks

Supreme Court Justice Elana Kagan spoke on Friday as a part of the University of Alabama School of Law’s fall 2013 Albritton Lecture.   A  Tuscaloosa News article highlighted her remarks about diversity on the bench and on the confirmation process for Supreme Court nominees.

When asked about diversity on the bench, Kagan alluded to the fact that most of the jurists currently serving on America’s highest court are from coastal cities with degrees from Harvard or Yale.  She then stated, “That seems kind of crazy to me and not a good thing.”

Though acknowledging a need for diverse jurists as important, Justice Kagan said she does not believe that diversity changes  the judicial decision-making process.  “The reason to have diversity,” she said,  is because the court “is a public institution and allows people to identify with it.”

When speaking about the confirmation process for the Supreme Court, Kagan discussed her own experience, including over 81 courtesy visits to senators before public hearings in the Senate began.  The overall process was illustrated as “public theater,” which “doesn’t seem all that helpful,” she said.

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Alarm About Present, Future Harm to Courts From Shutdown

Although federal courts remained open as the U.S. government’s partial shutdown entered its seventh day, the shutdown’s impact was felt.

“First wave of federal court cases in Maine delayed by shutdown,” declared a headline in the Portland Press Herald. The accompanying news article discussed delays in a woman’s job discrimination lawsuit because she is represented by attorneys with the Equal Employment Opportunity Commission who have been furloughed.

Federal Public Defender Henry Martin of the Middle District of Tennessee told the Nashville Tennessean that his office, already impacted by automatic budget cuts known as sequestration, will be worse off if the shutdown continues past Oct. 14, when its reserve funds will dry up.

Regarding the budget standoff in Congress, Martin said, “The reality is that if they don’t come up with a budget, a lot of people are going to be affected negatively, and people’s Sixth Amendment right will be impaired even more so because of it.” Read more

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Supreme Court Opens Term With Hot Issues on Docket

Despite the U.S. government’s partial shutdown, the Supreme Court opened its new term today amid a flood of news media attention about the major cases it will hear and noting its shifting role when the government is facing paralysis.

The Washington Post reported that the court has a pivotal role at a moment in history when Congress is deadlocked. The court “resumes its role as the uneasy arbiter of America’s intractable social conflicts with a new docket that features battles over affirmative action, campaign finance and abortion, among other divisive issues,” reporter Robert Barnes wrote.

“This term is deeper in important cases than either of the prior two terms,” said Irving L. Gornstein, who directs the Supreme Court Institute at Georgetown University, according to the New York Times. That newspaper said a number of key precedents are at risk in new cases, especially in areas of law under revision by the court since the retirement of Justice Sandra Day O’Connor in 2006. Read more

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Editorial Echoes JAS in Denouncing Impeachment Call

“Impeaching judges for making unpopular decisions would subject the nation’s judiciary to a political circus,” a Toledo (Ohio) Blade editorial said, echoing concerns raised by Justice at Stake about an impeachment threat against a federal judge.

The editorial criticized state Rep. John Becker’s (photo) recent call on Congress to start impeachment proceedings against U.S. District Judge Timothy Black over a controversial decision that involved marriage for a same-sex couple.

Last week, JAS Executive Director Bert Brandenburg said in a statement (see Gavel Grab), “If you got to a situation where every time a decision might be unpopular to somebody, and you threatened to impeach them, you would create a political circus around the judiciary.”

The Ohio editorial quoted Brandenburg to provide historical context for the impeachment call. To date, “no state or federal judge has been impeached for an opinion issued from the bench,” he wrote in a 2011 op-ed.

The editorial concluded, “The prudent, traditional, conservative way to deal with this case is to let it work its way through the courts. Gay couples should be accorded the equality they deserve. And Representative Becker should find better ways to spend his publicly subsidized time.”

Becker made the call after Judge Black recognized the marriage of a same-sex couple from Ohio that was wed legally out of state.


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Monday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • Gloria Padilla of writes in an opinion blog about the growing concern regarding the qualifications for becoming a judge at the district level in Texas. According to the post, common practices, such as, allowing judges who knew the law well and did a good job to be left alone at re-election time are no longer courtesy. The post also echoed concerns that judicial elections were rapidly becoming more partisan.
  • Fifty years after the Supreme Court’s landmark decision regarding the right of each American citizen to legal counsel, thousands are still going without that in South Carolina, according to the state ACLU, quoted by the Island Packet. The article attributed  this to extreme caseloads, lack of funding, and ambiguous local laws.
  • The Associated Press reports that Judge Andre Davis of the Fourth U.S. Circuit Court of Appeals plans to take senior status after he turns 65 in February. Davis was the first of six judges appointed by President Obama to the Richmond-based Court of Appeals.
  • In a spirit of bipartisanship, the U.S. Senate recently confirmed 98-0 Todd Hughes’ nomination to a federal Court of Appeals, according to a favorable Richmond Times-Dispatch editorial. Hughes is gay, and the editorial commended the Senate for fairer treatment of his nomination than the Richmond General Assembly’s recent handling of the nomination of an openly gay prosecutor for a  judgeship (see Gavel Grab).

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Poll: Plurality Finds Supreme Court ‘Just About Right’ on Ideology

Forty-one percent of Americans, a plurality in a recent Gallup poll, considered the U.S. Supreme Court “just about right” ideologically, compared to 30 percent who judged it too liberal and 23 percent who found it too conservative.

The polling data was released shortly before the first week of the Supreme Court’s new term, and it reflected a close split in opinion about the performance of the high court. Forty-six percent approved of the way it has been doing its job, compared to 45 percent who disapproved.

Chief Justice John Roberts Jr. received a 55 percent approval rating in the latest poll. When it comes to trust in the branch of government headed by the Supreme Court, 62 percent expressed a “great deal” or “fair amount” of trust compared to 37 percent expressing “not very much” trust or “none at all.” These opinions compared to lower levels of confidence in the executive (51 percent) and legislative (34 percent) branches.

“For a court looking to start a fresh term, these are hopeful signs that it may one day be back in the good graces of a majority of the country,” Gallup’s analysts wrote.

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High Stakes Seen in Campaign Finance Regulation Case Before Court

The Supreme Court’s scheduled oral arguments next week in a major campaign finance regulation case, McCutcheon v. Federal Election Commission, are continuing to generate extensive commentary and coverage. The case involves a challenge to aggregate federal limits on an individual’s campaign donations to candidates and committees.

In the (Raleigh) News & Observer, Nick Nyhart of Public Campaign wrote a piece entitled, “Flood of campaign money would drown voter voices.” Public Campaign is a Justice at Stake partner organization. News media coverage included Washington Post, “Supreme Court case could give wealthy donors more latitude in elections;” USA Today, “Supreme Court weighs limits on campaign donations;” Huffington Post, “Mitch McConnell Will Ask Supreme Court To Scrap Campaign Contribution Limits Entirely;” and Bloomberg News, “Campaign-Money Limits at Risk in New Court Term.”


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It’s Official: Supreme Court to Stay Open Another Week

BULLETIN: The Supreme Court has announced it will keep operating normally at least through Oct. 11, according to the Blog of Legal Times.

How are the courts affected when the federal government is partially shut down? Each day, there are new answers. Today, the Blog of Legal Times reported that the swearing in of Robert Okun (photo) for a judgeship on the District of Columbia Superior Court was rescheduled until Nov. 8 because of the shutdown.

The local D.C. courts  are federally funded yet do not actually belong to the federal judiciary, and one-third of their employees have been furloughed as a result of the shutdown.

Meanwhile chief federal judges including Janet C. Hall of Connecticut were looking ahead at the decisions that will be required if the shutdown continues past the two-week mark. The federal courts announced earlier they would remain open, operating on reserve funds, to approximately Oct. 15.

If the government has not reopened then, Judge Hall told the Norwalk Citizen, it will become necessary for her and other chief judges around the country to identify the staff who are considered essential to operating the courts, and those who shall be furloughed.

You can view a video of Praveen Fernandes, Justice at Stake director of federal affairs and diversity initiatives, discussing the shutdown and the courts by clicking here.

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Elections, Instead of Merit Selection, Sought for Top Judges in Missouri

Missouri’s nationally recognized merit selection system for selecting top judges could face still another attack.

Approval by the secretary of state’s office for two similar constitutional amendments this week means supporters can begin working to seek enough signatures to bring the issue before voters in November 2014, according to the Associated Press. The proposals seek to replace merit selection with popular election of judges, and they would expand the size of the state Supreme Court from seven to nine justices.

The “Missouri Plan” for selecting  judges has provided a model for many other states. Critics of the plan, from both inside and outside the state, have launched attacks on it for more than a decade. Read more

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