Here is the Brennan Center’s weekly round up of Fair Courts news, where we recap stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary.It is a summary of the Brennan Center's Fair Courts E-lert, which goes out weekly and is available on our website.
Federal Judicial Selection
Referring to the 99 existing vacancies on the federal bench (out of 857 federal district and appeals court judgeships), and the slow pace of nominations and confirmations, Russell Wheeler, a policy analyst with the Brookings Institution, said, “Government is now not doing it's job, that's what it comes down to, it's just not filling these vacancies in a timely manner and there's enough blame to go around.” According to CNN, approximately 12 percent of all federal district and circuit court judgeships are now vacant. There has been some movement on President Obama’s judicial nominees, however. Last week, the Senate unanimously confirmed Amy Totenberg and Steve C. Jones, both of whom will serve on the U.S. District Court for the Northern District of Georgia. Last Wednesday, one of the President’s most controversial nominees, Goodwin Liu, attended a second hearing on his nomination before the Senate Judiciary Committee. Liu apologized at the hearing for harsh remarks he had made in relation to then-Judge Samuel Alito’s nomination to the Supreme Court, conceding that the criticism of Alito was “unduly harsh” and the result of “poor judgment.”
Supreme Court
The justices of the U.S. Supreme Court are “talking more and listening less, with new arrivals Sonia Sotomayor and Elena Kagan proving to be aggressive additions to what was already an assertive court,” a Washington Post article concludes. The two newest justices are both more active questioners than their predecessors, and Chief Justice John Roberts has to play the role of “traffic cop” as the number of questions posed by his colleagues increases.
Amid continuing discussion of the ethical obligations that apply to U.S. Supreme Court justices, two Democratic lawmakers proposed legislation to revamp various Supreme Court ethics rules. The proposed bill, sponsored by Reps. Chris Murphy and Anthony Weiner, would “require the Judicial Conference to set up a process for taking in ethics complaints about the justices, and for investigating those complaints. It would require justices to explain their decisions to recuse or not recuse from a case, and if a justice has turned down a motion to disqualify, it would allow the rest of the Court to disqualify the justice.”
Recusal
The Tennessee Bar Association has proposed sweeping changes to the state’s canons of judicial ethics, including Tennessee’s substantive and procedural rules on recusal. The proposal, which has been filed with the state’s high court, takes a “tougher stand on whether judges should oversee cases involving their political contributors,” and “would give litigants a speedy appeal process when judges refuse to step down from a case after being asked.” While the proposal would tighten recusal rules, it would loosen restrictions on political conduct by judges: Under the proposed rules, judges would be “much freer to participate in the political process outside their races . . . [as they would be allowed] to make political contributions and buy tickets to political fundraising events.”
State Judicial Selection
Amidst the heated debate over restricting public employees’ collective bargaining rights, which has gripped the Wisconsin statehouse for weeks, Governor Scott Walker proposed a budget last week that could dramatically cut funding for the state’s judicial public financing program. The proposed budget, if adopted, would “all but kill[] public financing for Supreme Court races.” The public financing program, adopted in 2009 in response to concerns about runaway spending in Wisconsin’s court races, is in place for the first time this year; both candidates competing in the April 5 election for a seat on Wisconsin’s high court have opted into the public financing program.
State senator Michael Lamoureux has filed a bill that would replace judicial elections for intermediate appellate judges in Arkansas with a merit selection system. According to an Arkansas Times blog post, prospects for the bill’s passage are uncertain since none of the most influential stakeholders — “here the Bar Association, Trial Lawyers and corporate interests that have most to win and lose in court, not to mention minority interests” — have signaled whether they would support or oppose the measure.
On Friday, our friends at Citizens Union updated us on efforts at the City Council to hold the New York City Board of Elections accountable to its promise to post sample ballots online prior to an election. As we previously blogged, in November the City Board unanimously passed a motion to post sample ballots on its website. Council Member Gale Brewer introduced the bill which would amend the City Charter to require that the Board post sample ballots on its website at least one week prior to an election.
Unlike many other New York Counties, the New York City Board of Elections did not post sample ballot on its website in 2010. After obtaining a copy of the New York City sample ballot, we at ReformNY posted it to our blog (later discovering the mistake on the instructions) and received positive feedback.
Posting sample ballots online is common sense and cost effective way to educate voters. Sample Ballots will make for more confident voters, shorter lines at the polls, and avoid many of the problems encountered on Election Day.
Indiana Secretary of State Charlie White was indicted on seven felony counts on Thursday, including charges of voter fraud. According to special prosecutors, Secretary White intentionally voted in the wrong precinct in the May 2010 primary. Secretary White admitted to the charge, but has said it was not on purpose.
Here is how it apparently all went down: after his 2007 divorce, Secretary White moved from the house he shared with his ex-wife. He moved into an apartment in the same precinct and updated his voter registration record. Around February 2009, he moved out of that apartment and back in with his wife. Later that year in November, Secretary White began to split time between his ex-wife’s house and a recently purchased condo outside the precinct. In February 2010, he changed his voter registration record to reflect his ex-wife’s address as he had not yet closed on his condo and was unsure when he would. Secretary White subsequently failed to update his voter registration record to reflect his own address and voted in the wrong district.
Secretary White blamed a hectic schedule for not updating his registration. Moving (coupled with running for state office, in this specific case) is indeed a stressful time, and many movers, unable to update their registration records in time to vote, are ultimately disenfranchised. In 2008-2009, over 36 million people moved in the United States, and a study by Harvard and Yale universities revealed that our registration system is failing these mobile voters. According to the survey, 12 percent of Florida voters and nearly 10 percent of Los Angeles County voters surveyed reported at least one significant error—such as name, birth date or address—in their record that could prevent them from casting a ballot.
If address changes were automated, permanent, and portable, eligible movers would have their voting records updated automatically, and not face rejection from the ballot box come Election Day. In Secretary White’s case, he would not have had to remember to change his address in the busy period between sale closing and the election. But, alas, Indiana has not modernized its voter registration system.
Two years ago, on March 3, 2009, the U.S. Supreme Court heard oral argument in the landmark case Caperton v. Massey, which concerned a coal company CEO who spent millions to elect a West Virginia judge who went on to throw out a multi-million dollar damages award against his company. That same day, major newspapers across the country—including the New York Times, the Washington Post, and USA Today—called for states to adopt disqualification rules addressing the tsunami of money that has flowed into state judicial elections over the last decade. All three papers bemoaned the incredible increase in spending and cautioned that it threatened public confidence in a fair and impartial judicial system.
The Caperton Court ruled that the Constitution compelled the West Virginia judge to step aside and let a wholly disinterested judge hear his benefactor’s case. The Court also gave states a green light to “adopt recusal standards more rigorous than [the Constitution] requires.” Legal observers applauded the ruling, and H. Thomas Wells, Jr., then-president of the American Bar Association, promised that the ABA would help states respond to the invitationby developing “a series of guidelines for courts to assess whether contributions to judges’ campaigns implicate the due process rights of parties appearing before them.”
Despite the ABA’s initial call for new disqualification standards, it has not yet issued any guidelines. And while a handful of states have adopted promising new rules, the majority of state courts have failed to adopt any reforms that respond to the threats identified in Caperton. The Brennan Center for Justice recently issued a detailed paper describing how states have reacted to the threat judicial campaign spending presents to public confidence in the judiciary. Unfortunately, as the paper shows, in the two years since the Supreme Court heard Caperton, the promise of the decision and its broad support remains unfulfilled.
Two states essentially ignored Caperton’s lessons by rejecting strengthened disqualification rules. Nevada rejected a proposal to make disqualification mandatory when a judge received a campaign contribution of $50,000 or more from a party appearing before her. Wisconsin weakened recusal standards with a rule that says campaign contributions or expenditures can never be the sole basis for recusal.
There has been some progress, though. Eight states—Arizona, Iowa, Michigan, Missouri, New York, Oklahoma, Utah, and Washington—adopted rules that, to varying degrees, address money on the judicial campaign trail. And promising new rules have been proposed in Georgia and Tennessee.
But the remaining states have failed to take any meaningful action at all. In some cases, recommendations have been made to the state supreme court, but formal rules have not yet been codified. In other states, bills have been introduced in the legislature and failed to garner sufficient support. Some states made no attempts to strengthen disqualification rules at all.
Meanwhile, the ABA has also failed to live up to the promise of its post-Caperton statements. In fact, the ABA recently tabled—at least until its annual meeting in August—an initiative that would have urged states to strengthen disqualification rules. The proposal called for disclosure by litigants of all campaign spending involving the judge before whom they appear, recusal where spending raises questions about the judge’s impartiality, and meaningful review of all decisions rejecting a recusal motion. The ABA may yet adopt meaningful disqualification rules, though. Recognizing the great importance of the issue to public confidence in the judiciary, ABA President Stephen Zack has signaled strong support for meaningful recusal reform, and has called for adoption of robust standards at the ABA’s annual meeting in August.
Action by the ABA—and the remaining states—is crucial. Judicial spending continues to spiral out of control, with spending in the decade from 2000-2009 more than doubling that seen in the 1990s. Recent polling demonstrates increasing bipartisan concern for the ability of courts to dispense fair, impartial justice. State courts must accept the Supreme Court’s invitation in Caperton and demonstrate leadership by adopting policies proportional to this public crisis in confidence regarding fair and impartial courts.
The Brennan Center’s paper offers a blueprint for meaningful reform, and specifically recommends four priorities:
States should not rely on a challenged judge to make the final decision on whether his or her impartiality can reasonably be questioned. If a judge denies a recusal request, there must be prompt, meaningful review of the denial.
States should require transparent decision-making, including written rulings, on recusal requests.
States should adopt rules recognizing that judges’ impartiality may reasonably be questioned, and disqualification made necessary, because of campaign spending by litigants or their attorneys.
States should require litigants (and counsel) to disclose campaign spending related to any judge or judges hearing their case.
Adopting these policies will let states go a long way to protecting the perception—and reality—of fair and impartial courts.
Twenty-five percent of citizens who attempted to register to vote at Motor Vehicle Administration (MVA) offices in Maryland in the past four years were not properly added to the voting rolls, the Baltimore Sun reported last week. During that period, 120,000 citizens who submitted change-of-address information at the MVA did not have their voting records updated. And alarmingly, officials at the Maryland State Board of Elections told the Sun that about 622,165 Maryland residents who are qualified to vote are not registered to do so.
Such obvious failures to register voters violate the letter and spirit of federal law. The National Voter Registration Act (also known as the "Motor Voter law"), among its many provisions, requires that states offer voter registration opportunities to eligible citizens who apply for driver’s licenses or come in to update their information at licensing agencies.
Rather than working toward more effective compliance with federal law, officials at the MVA have tried to justify their failures by pointing fingers at the poorly served voters themselves. As the Sun reports, the MVA blamed motorists, who they say often tell clerks that they want to register to vote, but then fail to follow through by signing and returning the necessary forms. Never mind the fact that federal law requires the state to update voter records based on change of address information submitted to the MVA regardless of whether the voter signs or submits any form.
What the MVA should rightfully blame is its outdated paper-based voter registration system. As Brennan Center research has demonstrated, labor-intensive paper-based voter registration systems swamp election officials, burden taxpayers, and create a risk for every voter that human error—a misplaced form, a data entry slip, and failure to properly complete a form—will bar her access to the ballot box.
Rather than displacing the fault on voters, Maryland should use this opportunity to achieve productive change and automate its voter registration system at the MVA. As we detail in our report, Voter Registration in a Digital Age, many states have already automated their registration systems at motor vehicle offices. Paperless registration in these states has proven to be cost-effective, more accurate, and increase registration rates.
It seems Maryland considered modernizing its registration systems three years ago, when a Senate committee conceded that the MVA voter registration process “does not function as effectively as it should.” The Sun reports that, “the Senate Budget and Taxation Committee asked the MVA and the elections board to consider moving to a fully electronic system in which clerks would guide would-be voters through the registration process.”
In response, “the MVA reported back that such a change was ‘not feasible,’ because it would require the agency to hire more workers and add ’substantial wait times’ at MVA offices.” The MVA also claimed that a new system would cost millions. The MVA is wrong on both counts. Again, the experience of 17 states shows that automation is eminently feasible. Neighboring Delaware is proof of this. The state boasts one of the most effective electronic motor voter systems in the nation, known as e-Signature. Motorists fill out and sign registration forms on a touch pad, and the information is electronically submitted to election officials.
The entire system cost Delaware $600,000, not millions of dollars as Maryland fears, and has saved over $200,000 per year, according to Elaine Manlove, Delaware’s State Election Commissioner. The program has been so successful that Delaware is set to introduce e-Signature into the offices of social service agencies in the coming weeks, which will make it the first state in the country to do so. Other states have automated their systems at far lower costs: Washington spent $280,000 and Arizona spent $30,000.
Maryland’s MVA officials should have a conversation with their neighbors in Delaware to discuss ways to remedy its flawed registration system, as the Baltimore Sun, the NAACP, and the former chief of the U.S. Justice Department’s Voting Section have all urged. The Brennan Center is also available for technical support. For more information on voter registration modernization, please click here.
This month, the Attorney General instructed the head of every executive agency to take immediate action to ensure that the agency is able to communicate with the people it serves, regardless of English language ability. While this move has been overshadowed by the justifiably loud celebration of the Justice Department’s decision to stop defending the anti-gay Defense of Marriage Act, it promises to have an equally profound effect on civil rights.
In order to serve its customers, the federal government must be able to communicate with them. As the Attorney General wrote, “[e]vents such as the H1N1 influenza pandemic, Hurricanes Katrina and Rita, the Gulf oil spill, and the 2010 Decennial Census highlight the need for federal agencies to ensure language access.”
Miscommunication can lead to tragedies. Human rights groups have documented instances of immigrants unable to communicate their need for health care, food or other assistance to staff at the detention centers run by the Department of Homeland Security. Domestic violence victims have been unable to inform law enforcement officers of their need for protection. Parents have been unable to obtain Food Stamps or healthcare for their children.
A year ago, on behalf of the National Language Access Advocates Network, the Brennan Center warned the Justice Department about these problems, describing the failure of many federal agencies to comply with their language access obligations. As we had recommended, the Attorney General’s recent letter to the executive agencies instructs each to develop or update a plan for ensuring that the agency’s own employees are able to communicate with the limited English proficient people they encounter. And, it reminds each of its obligation to provide language assistance guidance to all non-profits, state and local governments, and businesses it funds. Most importantly, the letter warns that DOJ will monitor whether federal agencies are fulfilling their language access obligations.
Without interpreters, all too often federal agencies cannot communicate with the people they serve. Without monitoring, all too often the Justice Department’s warnings are just empty words. The Attorney General’s letter promises improvement on both fronts.
Here is the Brennan Center’s weekly round up of Fair Courts news, where we recap stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary.It is a summary of the Brennan Center's Fair Courts E-lert, which goes out weekly and is available on our website.
Recusal
“Justices should not be forced to live cloistered lives devoid of meaningful exchanges with individuals and outside groups — even those with strongly held beliefs,” argues a Washington Post editorial. “But they should be careful not to put themselves in situations where their impartiality is cast in doubt.” The editorial says that criticisms of Justices Clarence Thomas and Antonin Scalia for participating in the Citizens United case, despite connections to groups interested in its outcome, should not be blown out of proportion. Referring to complaints about Justices Thomas and Scalia that the liberal group Common Cause lodged with the U.S. Department of Justice, Michael Waldman, executive director of the Brennan Center for Justice, cautions in the National Journal that “people should think very hard before asking prosecutors to investigate judges just because they dislike the decisions they make.” Amid the arguments about Justices’ ethical obligations, there have been various calls for efforts to protect public trust in the Supreme Court. More than 100 law professors signed a letter seeking action by Congress to establish clear “mandatory” ethics and recusal guidelines for Supreme Court justices, and bills on recusal at the federal level have been introduced in both the Senate and the House.
An overwhelming majority of North Carolina voters believe campaign contributions to judicial candidates can affect a case’s outcome in the courtroom, and that judges should not hear the cases of major campaign contributors. A new poll found that 94 percent of North Carolina voters believe campaign contributions have some influence on a judge’s decision in a case involving a donor, and 85 percent believe judges should step aside from hearing cases that involve major campaign contributors. A joint press release by the organizations that sponsored the poll, the Justice at Stake Campaign and the North Carolina Center for Voter Education, says that these findings explain why public support for North Carolina’s judicial public financing remains high, since “voters want to preserve a program that keeps campaign cash out of the courtroom.”
State Judicial Selection
The Kansas House passed a bill to replace the state’s merit selection system for appellate judges with a system in which judges are appointed by the governor, subject to state Senate confirmation. The bill’s sponsors argue that the current system — in which a judicial nominating commission sends candidates to the governor — gives too much influence to attorneys. Chief Judge Richard Greene of the Kansas Court of Appeals advocated vocally against the change, and an editorial in the Wichita Eagle similarly worries that the switch will politicize the court. Meanwhile, the Tulsa World reports that a similar proposal to do away with Oklahoma’s merit selection system has advanced in the Oklahoma Senate Judiciary Committee. And, in response to proposals to modify Arizona’s judicial selection system currently before the state legislature, the Morrison Institute for Public Policy at Arizona State University has published a paper highlighting the benefits of merit selection.
In Texas, Chief Justice Wallace Jefferson is also calling for judicial selection reform, in his case with questions about Texas’s partisan judicial elections. Concluding that “[a] justice system based on some notion of Democratic or Republican judging is a system that cannot be trusted,” Chief Justice Jefferson used his state of the judiciary address to urge the legislature to “send the people a constitutional amendment that would allow judges to be selected on their merit” and to extend terms for judges to “avoid some of the overhaul that occurs each election cycle.”
Iowa Governor Terry Branstad named three new justices — Iowa Court of Appeals judge Edward Mansfield, district court judge Bruce Zager, and lawyer Thomas Waterman — to the state Supreme Court to replace three justices ousted last November. The ouster marked the first time voters opted against retaining a Supreme Court justice since the state’s merit selection system was adopted in 1962. Meanwhile, another article discusses the lack of gender diversity on the state’s high court after the removal of former Chief Justice Marsha Ternus. Currently, Iowa, Indiana, and Idaho are the only states without a female Supreme Court justice.
A Wisconsin State Journal editorial discusses the possibility that public judicial campaign financing could increase the relative influence of special interest spending in the state’s upcoming judicial election. Citing data collected by the Brennan Center for Justice, the editorial points out that, during the primary campaign, the money spent on TV advertising by the interest group Wisconsin Club for Growth dwarfed the amount spent on TV by all candidates combined. The Brennan Center for Justice will continue to track spending leading up to the general election, in which incumbent Justice David Prosser will face challenger JoAnne Kloppenburg.
In the Keystone State, the nonprofit Pennsylvanians for Modern Courts cites the conviction of former Luzerne County Judge Mark A. Ciavarella Jr.— and information brought to light during trial that Ciavarella skimmed from his election campaign funds — as evidence that Pennsylvania should adopt a merit selection system in order to getting judges “out of the fundraising business.” Ciaverella’s conviction concludes the “kids for cash” scandal that rocked the state judiciary. Ciavarella was convicted on 12 counts, including racketeering and conspiracy, and acquitted of 27 counts, including extortion. The state Supreme Court previously vacated thousands of juvenile convictions issued by Ciavarella, stating that he ran his courtroom with “complete disregard for the constitutional rights of the juveniles.”
Court Resources
An Administrative Office of the U.S. Courts memo obtained by the Blog of Legal Times indicates that the federal judiciary is proactively addressing the possible federal government shutdown in the event of a congressional budget impasse. The memo said guidance on operating during such a shutdown would be forthcoming, and urged all chief judges nationally to enact budget conscious measures such as hiring freezes.
An editorial in the Pensacola News Journal notes that a decrease in foreclosure cases has negatively affected Florida’s court funding reserves. Foreclosure cases constitute a primary source of revenue for Florida’s courts under a revised funding formula, which means that the drop-off in foreclosures will result in a $45 million shortfall in court funding. Acknowledging that “[t]he courts are crucial to the functioning of civil society,” the editorial urges the legislature to take action to forestall a funding crisis. Meanwhile, the Florida Supreme Court has asked the legislature to approve 80 more trial judges to help alleviate increased judges’ workloads.
Miscellaneous
The New Jersey Senate passed a resolution urging Supreme Court Justice Roberto Rivera-Soto to resign. After Gov. Chris Christie decided not to reappoint an incumbent justice last year, chief appellate judge Edwin Stern was appointed as a temporary justice. Subsequently, Rivera-Soto vowed to abstain from any further decisions in which Stern participated, on the grounds that Stern’s appointment was unconstitutional. In January, Rivera-Soto modified his position, announcing he would participate in cases in which Justice Stern’s vote does not affect the outcome. Assembly Democratic spokesman Tom Hester Jr. said he hopes Rivera-Soto will resign, but there are no present plans to initiate impeachment proceedings.
The Wall Street Journal reported today that a bipartisan group of leaders from the business community, clergy members, and former politicians have united in support of curbing the influence of special interests in New York State by creating a system of "voter owned elections" through voluntary public financing. The group wrote Gov. Andrew Cuomo Friday, calling on him to work with closely with the legislature to create a public financing system similar to New York City’s which has increased competition, grassroots campaigning and citizen participation. We have previously blogged on the urgent need for public financing in New York.
“Real change can’t happen in Albany until we limit the torrent of special interest money flowing into incumbents’ coffers and create a public funding system that will provide a real alternative for candidates from the current status quo of money and politics,” the group wrote Gov. Cuomo last Friday.
The prominent bipartisan list of signatories include U.S. Senators Bill Bradley and Bob Kerrey, three former members of the U.S. House of Representatives, former Chair of the Securities and Exchange Commission under George W. Bush, former New York City Mayor Edward Koch, Chief Counsel at Brennan Center for Justice Frederick A.O. Schwarz, Jr., Seagram’s former President Edgar Bronfman, Sr., Rabbi Joseph Potasnik, former Fordham University President Father Joseph O’Hare, New York State NAACP President Hazel N. Dukes, among others.
New York’s campaign finance laws are at least 30 years out of date. A recent NYPIRG analysis on our state’s sky high contribution limits further highlights the weaknesses of our campaign finance laws as special interest money continues to flood into our state. As we argue in our recent study on ethics, if there is any hope of changing the culture in Albany we must start by changing way we finance elections.
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