Gavel Grab

States React to Caperton


Since the Caperton decision came down last week, the reaction from the states that have judicial elections, or may potentially have them, has been mixed.

Starting in West Virginia, where legislative options are being studied to prevent a situation like Caperton from happening again, the reaction was positive. West Virginia State Sen. Jeff Kessler, Chairman of the Senate Judiciary committee, said the U.S. Supreme Court decision would add some energy to the steps he has proposed, according to The Charleston Gazette.

Eric Velasco of The Birmingham News, in Alabama, states that the ruling will have little effect on Alabama’s nasty statewide judicial elections. Justice at Stake’s Charlie Hall was interviewed for this article, and his reasoning behind the lack of change was due to Alabama’s lack of transparency in campaign contributions. Hall said, “You can’t ask a judge to step aside if you don’t know where the money is coming from. Alabama needs to open the windows and let the sunlight in.”

This sentiment was shared by The Birmingham News editorial board, which wrote:

In Alabama, the impact of the Supreme Court ruling will be further diluted by the difficulty of identifying the source of campaign donations. The state allows contributions to be routed through a maze of political action committees. These PAC-to-PAC transfers are intended to hide the real donors and keep the public from learning about possible conflicts involving candidates and their campaign sugar daddies.

While the mood is skeptical in Alabama, the situation is more positive in Ohio. Read more

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Caperton: First Reflections

“This is a tremendous victory.”

That statement, by Justice at Stake Executive Director Bert Brandenburg, captures the essence of today’s landmark ruling by the U.S. Supreme Court in the case of Caperton v. Massey. (To see Justice at Stake’s full press release, click here.)

As the Supreme Court’s full written opinion makes clear, not all judges will have to step aside from any case involving campaign contributors. But for the first time ever, the court recognized that heavy spending by campaign backers with business before the court can force a judge to step aside, in order to guarantee a fair trial in an impartial court.

Given all the spending by special interests in recent decades specifically to influence the makeup of state courts, this is a historic recognition by the Supreme Court that the current system is broken. The ruling also is a historic extension of recusal law, which had never been applied to cases involving judicial election spending.

Justice at Stake is posting in stages today. In a bit, we’ll outline key quotes in Justice Kennedy’s opinion.

Justice Kennedy’s opinion also swept aside arguments by Massey’s lawyers that actual bias by a judge had to be demonstrated. It said the amount of spending by Massey CEO Don Blankenship, about $3 million, created a “probability of bias” that was unacceptable. And it cited the American Bar Association model code, which says judges should avoid the “appearance of impropriety,” in saying that most future recusal motions can be addressed at the state level.

To learn more about the case, you can also visit Justice at Stake’s online Caperton resource page.

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AP Discusses Caperton

Mark Sherman of the Associated Press discusses the Caperton v. Massey case, referred to in the previous entry on West Virginia’s Supreme Court. To read, click here.

The Wall Street Journal also offers its analysis of the case.

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Will Supreme Court Take On Bail-Out Plan?


Washington Legal Times reporter Tony Mauro has an interesting piece on the Supreme Court’s role, or non-role, in the bailout plan. Although there has been debate over whether the original plan was constitutional, it’s unclear whether the court will involve itself. Mauro’s provocative analysis looks at the court’s earlier response to economic crises:

After the Great Depression, the Court’s rejection of New Deal corrective economic measures led to a constitutional crisis. And in 2000, most sensible commentators laughed at the notion that the Supreme Court would step into the Florida election dispute. Never shy about its role, the Supreme Court could well be a player, sooner or later, in the biggest financial crisis in 75 years.

An early harbinger came when Republican presidential candidate John McCain impetuously said he would fire Securities and Exchange Commission Chairman Christopher Cox because of Wall Street’s near meltdown. It did not take commentators long to remind McCain that under the Supreme Court’s Humphrey’s Executor decision of 1935, his plan was a nonstarter. Aptly enough, the case thwarted President Franklin Delano Roosevelt’s firing of a Federal Trade Commission member who did not support his New Deal economic policies strongly enough.

When the text of Treasury Secretary Henry Paulson’s legislative proposal for the bailout included an eye-catching clause stating that his actions in implementing the plan “may not be reviewed by any court of law or any administrative agency,” constitutional alarms also went off.

To see earlier Gavel Grab entries on the bail-out, click here, and here.

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Federal Judges Lose a Freebie

While most of lawmakers’ attention has been focused on a Wall Street bailout bill, one senator’s proposal involving judicial ethics has been passed with very little fanfare.

A article sheds light on a measure passed by Congress that bars federal judges from accepting free club memberships valued at more than $50 per year.  The measure was proposed as an amendment by Senator Jon Kyl (R-Ariz.) to a routine bill giving Supreme Court police authority to protect Supreme Court judges beyond the grounds of the Court.

Several justices have claimed club memberships on their financial disclosure forms, including memberships to golf resorts as well as private social clubs.  Senator Kyl says that these free memberships, some of which have values in excess of $12,000, create the appearance of impropriety.

The bill has passed both the House and the Senate and is awaiting President Bush’s signature.

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McCain, Obama and the Courts: Further Thoughts

The Concurring Opinions blog examines what the presidential candidates said about who they would nominate to the courts in their separate interviews with Pastor Rick Warren last Saturday. During his interview, Sen. Obama stated his desire for the courts to be a strong check on the executive branches powers:

“One of the most important jobs of the Supreme Court is to guard against the encroachment of the executive branch on the power of the other branches. I think he has been a little bit too willing or eager to give an administration, whether mine or George Bush’s, more power than the Constitution originally intended.”

During his session, Sen. McCain made note of his preference for a Court that follows the Constitution strictly:

“(The Constitution) should be based on the criteria of proven record of strictly adhering to the Constitution of the United States of America and not legislating from the Bench. Some of the worst damage has been done by legislating from the bench. And by the way, Justices Alito and Roberts are two of my most recent favorites.”

The Concurring Opinions post has an analysis of the two comments afterwards as well. A worthwhile read.

In a Chronicle Review article, John L. Jackson, Jr. interprets the responses of both candidates on a question regarding “judicial activism.” 

In his article, Jackson questions whether such a thing actually exists, or, as is the case in his opinion, only exists depending on whether or not you happen to agree with the decision. 

“Legislating from the bench,” as Jackson puts it, occurred on both sides of the “separate but equal” rulings in that they both challenged the status quo.  But,  which one, if either, is determined to be “judicial activism?” 

The answer, Jacskon argues, merely depends on the ideology of the judge in question.  He concludes by saying that refusing to acknowledge the influence of politics in the judical system represents naivety, disingenuousness, or self-serving rhetoric, all of which are practiced regularly by both parties.

For more on the concept of judicial activism, see the following 2005 Justice at Stake issues backgrounder.

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More on the Supreme Court and recusal

Tony Mauro at Legal Times looks at the amicus briefs asking the U.S. Supreme Court to hear Caperton v. Massey. West Virginia Supreme Court Justice Brent Benjamin has been asked to step aside in a case involving a contributor who spent millions of dollars supporting his election campaign. (Gavel Grab posted more on the case here.)

Last week, Justice Benjamin filed a statement explaining his decision.

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Chicago Tribune Article Cites Justice at Stake

Special-interest donations and the courts are the topic of an in-depth article in Sunday’s Chicago Tribune. Reporter Tim Jones quotes Bert Brandenburg, executive director of Justice at Stake, James Sample, counsel for the Brennan Center for Justice, and Theodore Olson, a former U.S. solicitor general who has appealed a West Virginia Supreme Court ruling to the U.S. Supreme Court.

 Olson is arguing that a West Virginia justice was obligated to recuse himself from a case involving a West Virginia mining executive who had heavily financed the justice’s election campaign. Olson told the Tribune that a “line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge.”

The Tribune article is called “Special interests pour cash into judicial races.” You can also download Justice at Stake’s report, “New Politics of Judicial Elections in the Great Lakes States: 2000-2008, ” which is cited in the Tribune article.


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Make No Mistake About It…

The Supreme Court justices are not infallible, as was made apparent by the recent Kennedy v. Louisiana decision, in which the court got its facts wrong while ruling that the death penalty for child rape is unconstitutional.

Days after the ruling was issued, an alert blogger set the record straight. He pointed out that Congress voted in 2006 to invoke the death penalty for soldiers convicted of child rape, contradicting the court’s finding that there were no such laws at the federal level.

Now comes a possible solution, albeit a radical one. Tom Smith of Right Coast wants to deputize average Americans, by using a process called Crowdsourcing in drafting future court opinions.

Crowdsourcing is when a task, such as research, is outsourced to the public in such a way that anyone willing can become an active participant. Smith suggests that the Court post opinions on the web prior to ruling so that eager beavers can dissect them.

Is America ready for wiki-rulings? One guesses that the court won’t jump on this idea immediately.

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A Pullback From Partisanship?

Has the Supreme Court become less partisan this year? That’s the opinion of Dahlia Lithwick, in Sunday’s Washington Post.

Despite last week’s 5-4 ruling in Boumediene, Lithwick notes a sharp reduction in rulings that pit four conservative justices against four liberals, with Justice Anthony M. Kennedy holding the swing vote. “As of this month, conservative and liberal justices are routinely sharing a toothbrush,” Lithwick writes.

To see Lithwick’s full column, click here. To learn more about Chief Justice John Roberts’ preference for “modest,” narrowly drawn opinions, which Lithwick says is helping to blur philosophical lines on the court, read this Atlantic Monthly article from January 2007.




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