Washington is mired in partisan gridlock, with the White House and Congress divided even on issues with broad public support. But hyper-partisan politics does more than just stop the legislative and executive branches from getting anything done. It also cripples the federal judiciary, one of the bedrocks of our democracy.
The latest egregious example came last week, when Republican senators filibustered the nomination of the eminently qualified Caitlin Halligan to the D.C. Circuit Court of Appeals. In blocking the nomination from going to the full Senate — where Halligan would have been confirmed by majority vote — Republicans ensured that a long-vacant seat would remain unfilled — and that the nation’s second most important court remained understaffed.
This is a problem across the federal bench: there are 80 vacancies on federal courts, including 29 in districts that have been deemed judicial emergencies. And while there are highly-qualified, experienced Americans waiting to fill those seats, shameful partisan tactics in the Senate have prevented confirmation votes on the nominees.
The slow pace of nominations in the Obama administration’s initial months in office certainly left much to be desired, and didn’t help the judicial crisis: by November of his first year in office, Obama had nominated only 26 judges — compared to the 64 nominations President Bush made in the same time frame.
But the administration has picked up the pace, and the lion’s share of blame for the current judicial logjam falls on the Senate. The president alone can’t staff the federal judiciary. Under the Constitution, no nominee can take a permanent seat on the bench without Senate confirmation. And this Senate has failed to act on countless highly-qualified individuals nominated by the president.
Because of those open seats, sitting judges are swamped by extra cases that should be handled by the judges slated to fill the vacancies. That means frustrating delays for the parties that depend on federal courts to resolve their cases.
Federal judges in Arizona are juggling a criminal caseload that has more than doubled in the past two years, while political gamesmanship in Washington kept Arizona’s bench short-staffed. Because of dilatory Senate tactics, veterans who risked the ultimate sacrifice defending our freedoms have had to wait several years to receive a final ruling on their eligibility for benefits from an overtaxed U.S. Court of Appeals for Veterans Claims. These examples, and countless others across the nation, have occurred because under Senate rules, a single senator can indefinitely hold a nomination from proceeding to an up-or-down vote.
A 2010 report from the Brennan Center for Justice illustrated how, over the last decade, Senate procedures have increasingly been used to prevent crucial decision-making — not to promote deliberation and debate, as the rules are designed to do. Nominees for crucial posts throughout the executive branch have been stalled by the Republicans’ cavalier use of the filibuster, but among the most damaging results of these tactics has been their impact on the federal bench.
During Obama’s first two years in office, only 62 of his 105 nominations were confirmed — the smallest percentage of judicial confirmations over the first two years of any presidency in American history. It’s not that the Senate has rejected his nominees as unqualified or inexperienced; the majority of individuals nominated by President Obama have ultimately been confirmed with little or no opposition during the floor vote.
Take, for example, Judges John Gibney, James Bredar, Catherine Eagles, and Kimberly Mueller. The Senate Judiciary Committee voted unanimously to approve their appointments to district courts in Virginia, Maryland, North Carolina, and California, respectively. But before they could take up the important work of hearing cases, these uncontroversial nominees spent more than eight months in confirmation purgatory, captive to obstructionist Senators using arcane procedural tactics to deny them up-or-down votes. All four were finally confirmed — by the unanimous consent of the full Senate.
Democrats aren’t blameless, of course. Under the last Republican president, they, too, used the threat of a filibuster as a strategic tool of obstruction. But a 2005 deal struck by a bipartisan group of senators — the so-called Gang of 14 — defused the last confirmation crisis. The agreement, which allowed a vote on any nominee except in the most “extraordinary circumstances,” recognized that holding qualified judicial candidates hostage doesn’t serve either party — or the country.
Unfortunately, in this hyper-partisan political moment, bipartisan common ground looks like a relic from the distant past. Led by Mitch McConnell, GOP senators walked away from the Gang of 14’s common-sense compromise. The resulting non-vote on Caitlin Halligan underscores just how dysfunctional our institutions of government have become.
The filibuster’s damage isn’t limited to grinding the legislative business of Congress to a halt. In Halligan’s case, the Senate’s archaic rules let an obstructionist party deny the nation the service of a highly qualified jurist. Partisan politics is imposing a tremendous burden on the ability of the federal courts to handle soaring caseloads.
In considering action on the 21 still-pending judicial nominees, patriotic Senators would do well to realize how the Senate’s inaction is compromising the judiciary’s constitutionally necessary ability to protect our liberties. Senate obstructionism is slowing the work of the courts to a crawl. Senators who delay justice, deny justice.
The American Bar Association (ABA) House of Delegates approved a judicial disqualification resolution today. The resolution urges states to establish clear procedures for dealing with judicial disqualification and calls for greater transparency of campaign spending in judicial races. The Brennan Center applauds the ABA’s for its leadership on judicial recusal and for taking this historic action.
The Brennan Center has consistently advocated for clear and comprehensive disqualification rules. We previously documented the threats that costly, negative, and special interest funded judicial election campaigns present to a fair and impartial judiciary. Indeed, numerous public opinion polls report that Americans are concerned about judicial neutrality in light of the ever increasing incursion of cash in the courtroom—three in four believe that campaign spending can influence courtroom decisions and a similar majority overwhelmingly agree that a challenged judge should not have the final say on his or her own disqualification.
Reforming disqualification practices in state courts is one way to reassure the public that judges’ decisions are not held captive by partisan political concerns nor—in the 39 states that elect judges—judicial campaign spending. In 2009, the U.S. Supreme Court recognized in Caperton v. Masseythat there was a “serious, objective risk of actual bias” when a judge refused to step aside from a case involving his principal benefactor. The Court also noted that states would be well served to adopt recusal rules “more rigorous” than the Constitution requires. Nonetheless, more than two years after the landmark judicial disqualification decision, states have failed to implement meaningful reform.
We hope that states will heed the ABA’s suggestions. We are pleased the ABA’s judicial recusal guidelines closely follow the proposals outlined in our study of state action on judicial recusal: Promoting Fair and Impartial Courts through Recusal Reform.
As special interest spending in judicial elections continues to escalate, states must respond to the ABA’s resolution and develop new standards and procedures for judicial disqualification and related disclosure in order to preserve the fairness and impartiality of the judiciary.
During a public hearing Wednesday, New York State’s Special Commission on Judicial Compensation examined New York’s judicial salary scale. Created by the State Legislature last year in response to arguments that, after going 12 years without any cost of living adjustments or raises New York’s judges deserved a raise, the Commission is expected to issue a recommendation next month about whether to adjust judicial salaries. If the Commission recommends salary increases, they will go into effect immediately unless the legislature and governor reject them.
The debate over judicial compensation in New York is not new. Indeed, the Commission was established after legislative action regarding judicial pay repeatedly stalled. In 2007, then-Chief Judge Judith S. Kaye requested that the National Center for State Courts study New York’s judicial compensation process. The NCSC report concluded that New York failed to meet the four criteria it deemed essential to an appropriate system of setting judicial salaries: equity, regularity, objectivity, and separation from politics. Accordingly, he report concluded that “judicial pay levels are inadequate and unlikely to continue to attract and retain highly qualified members of the legal profession to serve on the State’s bench.”
Four years later, there remain many reasons New York judicial salaries should be increased. As noted, New York judges have not received a cost of living increase — or any other compensation bump — in more than a dozen years. The result is that our judges — once America’s best paid — are the lowest paid in the country relative to cost of living. As a New York Times editorial suggests, the State’s inadequate judicial pay scale — under which New York judges earn less than other state judges, federal judges, and even some law clerks — may undercutits ability to attract and maintain a diverse and exceptional pool of judges.
We are well aware that the Commission faces the unenviable task of squeezing water from a stone. New York’s judiciary is already struggling to efficiently administer justice in light of massive budget cut, and funding for essential court services resources cannot be further cut. Indeed, these resources should be increased, particularly those that help deliver meaningful justice to less affluent residents in the Empire State. State officials contend that a judicial pay increase is improbable, given the State’s fiscal situation. We understand the precarious position in which budget negotiators find themselves. Nevertheless, the existing judicial compensation scale presents real and serious challenges to the judiciary, and adjustments are long overdue. We look forward to reviewing the Special Commission’s recommendations.
Today, in a welcome move, the New York Office of Court Administration officially adopted new standards to disqualify judges based on conflicts of interest caused by judicial campaign spending.
New York’s new Rule §151.1 establishes campaign contribution limits for lawyers and parties appearing before state judges, effective July 15, 2011. Under the rule, judges are prohibited from hearing the cases of parties or lawyers if they or their law firms have contributed more than $2,500 in the last two years (or if, collectively, the parties, lawyers or firms have contributed $3,500 in the last two years).
We commend New York for its strong leadership in recognizing the threats to judicial independence and impartiality that can arise when those who fund judicial election campaigns appear in court.
In February the Brennan Center and the Justice at Stake Campaign provided joint comments on the initial proposed rule, and advised New York to consider a mechanism to prevent abuse of the automatic disqualification rule. We are pleased that the final version of the rule contains a commitment consistent with our recommendation. As implemented, the new rule prevents manipulation of the judicial system by allowing a non-contributing party to waive a judge’s disqualification if the party believes the judge could be fair and impartial regardless of contributions to his campaign by the other parties.
This reform is an important step in protecting the judiciary from the appearance of impropriety. No one should ever have to ask whether justice can be bought. Unfortunately the influx of money in judicial elections in many states contributes to the perception that justice is for sale to the highest bidder. Luckily, New York has not seen the same volume of outside spending in judicial elections as other states have. New York may need to adopt additional provisions to address concerns about independent expenditures if faced with runaway spending in future judicial campaigns. We remain confident that New York will continue to safeguard public trust in the judiciary, as it has committed to doing today.
On Monday, the U.S. Supreme Court let stand two decisions upholding important rules that limit the influence of money and partisan politics on the courts. Pending before the Court were two cases from the Seventh Circuit Court of Appeals — Siefert v. Alexander and Bauer v. Shepard — which involved challenges to restrictions on judicial political activity and fundraising in Illinois and Wisconsin, respectively. The Court’s decision to leave the Seventh Circuit decisions alone underscores the fact that judges are different from other elected officials, and that because judicial elections are different from other elections, states have a strong interest in applying strict ethical rules.
The Siefert decision held that Wisconsin judicial candidates may not endorse partisan candidates for office or directly solicit campaign cash. Bauer involved similar rules, as well as some additional ones. In Bauer, the Seventh Circuit upheld provisions in Indiana’s code of judicial conduct that 1) forbid candidates from making commitments that are inconsistent with the impartial performance of the judicial office; 2) require recusal when a judges’ impartiality may reasonably be questioned; 3) limit political activities of Indiana judges; and 4) establish certain limits on fundraising and solicitation. As the Seventh Circuit recognized, limiting the risk that politics and campaign cash will influence judges is important, and these common-sense regulations further that interest.
Recent trends, including the increasing role that money and special interest pressures play in judicial elections, threaten public confidence in fair and impartial courts. In denying review of the Seventh Circuit cases, the Supreme Court left intact two strong opinions confirming that state judicial political activity bans are constitutional when drawn closely to the state’s interest in preserving impartiality and preventing corruption in the judiciary. As Chief Judge Frank Easterbrook wrote in Bauer, “Allowing judges to participate in politics would poison the reputation of the whole judiciary and seriously impair public confidence, without which the judiciary cannot function.” He added, “Preserving that confidence is a compelling interest.”
The Supreme Court has previously recognized, in Republican Party of Minnesota v. White, that there exists a “fundamental tension between the ideal character of the judicial office and the real world of electoral politics.” In grappling with this tension, the Court recognized in White that the First Amendment limits some restrictions on judicial candidates’ speech. On the other hand, the Court’s decision in Caperton v. Masseyconcluded that campaign activities can implicate serious due process concerns once a judicial candidate takes the bench as a judge. In Caperton, the Court found that large judicial campaign expenditures could create an unacceptable potential for bias — and require a judge’s disqualification.
Despite the seemingly different directions that White and Caperton point, both decisions recognize that judicial elections are not the same as other elections. Both cases implicate the state’s interest in regulating judicial campaign activity to isolate judicial candidates from the compromising elements of electoral campaigning — and to ensure public confidence in an impartial judiciary.
By leaving the Seventh Circuit’s decisions in Siefert and Bauer undisturbed, the Court allowed some ambiguity to persist with respect to what limits the constitution places on states’ attempts to regulate conduct on the judicial campaign trail. Lower courts are now split on the constitutionality of canons that prohibit judges and judicial candidates from directly soliciting campaign contributions. So, too, with respect to judges’ political activities: the Sixth and Eighth Circuits, for example, recently struck down Kentucky and Minnesota rules designed to keep politics out of the judiciary. These decisions contrast with the Seventh Circuit’s decision to uphold political activity canons designed to insulate sitting judges from politics unrelated to their own campaigns for re-election.
As state judicial elections continue to generate concerns about the increasing influence of politics and special interest money on the judiciary, it is crucial that states craft comprehensive rules to address the appearance of impropriety and associated declining public trust that will otherwise jeopardize the health of the judiciary. Judicial conduct rules like the ones in Wisconsin and Indiana are critical — but states with elected courts should also embrace recusal reform, disclosure, and public financing to protect judicial independence, recognizing that with independence comes a duty to promote both the appearance and the application of justice.
Here is the Brennan Center’s round up of last week’s 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.
Judicial Reform
On Friday, the Florida House voted along party lines to overhaul the state Supreme Court after Republican House Speaker Dean Cannon scaled back certain reform proposals that had met resistance, including one proposal that would have increased from 50 to 60 percent the approval vote required for a judge to be retained. The proposal advanced by the House would expand the court from seven to 10 justices and split it into two divisions — one civil and one criminal — but would not do away with Judicial Nominating Commissions. The GOP-led effort has sparked heated debate, both in the public arena as well as in the Senate, which has not voted on a companion bill. An editorial in USA Today deplores the proposal as a partisan court-packing attempt to control the judiciary, and a press release issued by the nonprofit court advocacy group Floridians for Fair and Impartial Courts urged the legislature “to retreat from an ill-advised attempt to seize control of Florida’s third branch of government.” Stephen N. Zack, president of the American Bar Association, struck a similarly cautionary note, stating that the proposal will not only “pack the state’s highest court with handpicked political friends,” of the governor, but will also raise court costs in the face of a widespread court budget crisis.
State Judicial Selection
Justice David Prosser declared victory in Wisconsin’s contentious Supreme Court election after a canvass of county vote tallies gave him a 7,316 vote lead. The vote margin, however, is within the 0.5 percent limit that will allow his challenger, JoAnne Kloppenburg, to request a statewide recount at taxpayers’ expense. Kloppenburg has not yet decided whether she will request a recount. With the final outcome of the race still uncertain, the implications of the election continue to be debated in editorials across the country. According to the Milwaukee Journal Sentineleditorial board, the 2011 election illustrates that because “politics has overwhelmed the process of choosing . . . justices,” the state should switch to an appointment system. Former Wisconsin Supreme Court Justice Janine Geske said the costly and negative 2011 election is proof that it’s time to change how Wisconsin justices are chosen. According to Geske, “candidates themselves have been drowned out by the independent ads and unfair and misleading ads.” A New York Timeseditorial agrees that special interest spending in the spring judicial election was out of control, and also says that “[a] merit panel should pick the state’s justices.” Finally, a special edition of Gavel to Gavel notes debates about the costs and benefits of judicial merit selection in numerous other states, and documents numerous proposals currently pending in state legislatures across the country to institute, alter, or abolish merit selection.
In an op-ed in Monday’s New York Times, Erwin Chemerinsky, Dean of the law school at the University of California, Irvine, and Hofstra law professor James Sample respond to calls to replace judicial elections with appointment systems by arguing that “judicial elections are here to stay. Given this reality, we should focus on balancing important First Amendment rights to financially support campaigns with due process concerns about fair trials.” The authors suggest that “[s]tates with elected judges should restrict how much can be contributed to a candidate for judicial office or even spent to get someone elected,” and note that while the U.S. Supreme Court has rejected spending caps in the context of legislative and executive elections, the Court should hold that “the compelling interest in ensuring impartial judges is sufficient to permit restrictions on campaign spending that would be unconstitutional for nonjudicial elections.”
Newly appointed Iowa Supreme Court Justice Tom Waterman defended the state’s judicial merit selection system during a panel discussion about judicial independence at St. Ambrose University. Justice Waterman compared Iowa’s merit system with Illinois’s judicial elections, noting that “[a]cross the river, millions of dollars are poured into races and lawyers and judges are making promises.” Meanwhile, the Iowa Senate rejected Governor Terry Branstad’s appointment of William Gustoff to the State Judicial Nominating Commission. Gustoff previously represented clients in a suit attacking the panel’s constitutionality, but has since withdrawn as counsel.
A Livingston Dailyeditorial urges the Michigan legislature to put a judicial selection reform plan presented by retired state Supreme Court Justice Elizabeth Weaver “on the front burner.” While the editorial does not unequivocally endorse Weaver’s reform proposals, it notes that Michigan’s highly partisan Supreme Court elections have become high-cost, highly contentious races that are undermining the judiciary.
Court Resources
The trial of a man accused of murdering his wife will be delayed because of budget cuts and courthouse layoffs throughout Alabama. After announcing 120 courthouse personnel layoffs effective May 1, Alabama Chief Justice Sue Bell Cob is also in the process of authorizing presiding circuit judges to shutter court offices for one day each week if needed. The personnel cuts mean that Jefferson County Courthouse does not have enough bailiffs and court officers to keep it secure for the aforementioned murder case. As courtrooms across the nation struggle to adjust to funding shortfalls, the Kansas Supreme Court Chief Justice Lawton Nuss expressed a mixture of frustration at the challenges facing the Kansas judiciary, and pride at the courts’ resilience. According to Nuss, “[t]his is a very difficult time for the judicial branch, but it’s been most gratifying to see how judges and employees have pulled together.”
Last Tuesday, voters went to the polls in Wisconsin. On Wednesday, with only 204 votes separating the two candidates in the state Supreme Court race, JoAnne Kloppenburg declared victory over incumbent Justice David Prosser. As voters were still reeling from the costly, controversial, and negative campaigning that defined the Supreme Court race, they received another bombshell — the Waukesha County Clerk discovered an error in her reporting. Votes from the city of Brookfield, which went heavily toward Prosser, were not included. Now, Prosser leads by more than 7,000 votes, and it looks like he will pull out the win.
Although the results are still not official, one thing is — this election set a new record for special interest spending on television ads in a Wisconsin judicial race, with five groups spending just under $3.6 million on ad buys before the election. This tops the previous record of $3.38 million, which was set in the notorious 2008 election between now-Justice Michael Gableman and then-Justice Louis Butler. Of the approximately $3.6 million spent this year, one liberal-leaning group, seeking to elect Kloppenburg, spent an estimated $1.36 million. Four conservative-leaning groups, seeking to re-elect Justice Prosser, spent a combined $2.21 million.
Under Wisconsin campaign finance law, special interest groups are only required to disclose spending on political communications if they expressly advocate for the election or defeat of a candidate — by using so-called “magic words” like “vote for,” “elect,” “vote against,” or “defeat.”Advertisements that use these magic words represent only a tiny fraction of all political spending, however, and groups can easily avoid disclosure requirements by running issue ads that are understood by voters as an appeal to vote for or against a candidate, but don't use the magic words, and therefore don't have to be reported.
The “Pedophile Priest” ad aired by the Greater Wisconsin Committee was one of the most controversial ads of the election, alleging that Justice Prosser failed to adequately prosecute a sex offender when he was a prosecutor three decades ago.
This ad was not considered express advocacy, and therefore while its message of support for JoAnne Kloppenberg was unmistakable — Prosser supporters demanded that Kloppenberg denounce the ad — the GWC was not required to report this expenditure.
Similarly, ads attacking Kloppenberg, which urged voters to call her to “tell her being weak on criminals is dangerous for Wisconsin families,”were not subject to disclosure requirements.
Because there is no required authoritative reporting of independent spending, the Brennan Center for Justice does not seek to quantify all spending by independent groups. Instead, we track spending on TV advertisements as a way to estimate the volume of special interest spending because we are able to get consistent, reliable data that allows us to compare spending trends from year to year (and state to state). This data is provided by TNS Media Intelligence/CMAG, which captures TV satellite data in the nation’s media markets and then estimates the costs of buying airtime based on the networks ads air on and the time of day they are broadcast. These calculations do not reflect ad agency commissions, the cost of producing advertisements, or airtime purchased on local cable networks that are not aired by satellite. Accordingly, these estimates are conservative, and underestimate the precise actual amounts of expenditures.
Here is the Brennan Center’s round up of last week’s 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.
Feature Story
The U.S. Supreme Court heard oral arguments today in McComish v. Bennett, a case challenging a component of Arizona’s public financing law that will have implications for public financing nationally. While critics contend that the “triggered matching funds” provision of the law violates free speech rights, numerous amicus briefs supporting the provision emphasize that public financing is essential to maintaining the integrity of elections. Several briefs highlighted the need for public financing in judicial elections in particular. In its amicus brief, Justice at Stake warned that the “deluge of special interest money is eroding public trust in America’s courts,” and described public financing laws such as Arizona’s as “one of the most powerful reforms in shielding courts from special-interest influence.”
State Judicial Elections
Wisconsin’s upcoming Supreme Court election between incumbent David Prosser and challenger JoAnne Kloppenburg continues to make headlines. Anger at Governor Scott Walker’s move to change the state’s collective bargaining provisions invigorated Kloppenburg’s base, and liberal-leaning organizations have began an ad campaign attacking Prosser for being a “rubber stamp” for Walker. The Greater Wisconsin Committee also launched a TV ad suggesting Prosser protected a priest accused of sexual abuse. During a debate held last Friday at the UW-Madison campus, Prosser decried the ad as “one of the worst, most untruthful and misleading ads that has ever been run in a judicial campaign.” Meanwhile, the conservative Wisconsin Manufacturers & Commerce Issues Mobilization Council (WMC) has initiated a fundraising drive to finance a “television ad campaign to counter the distortions from government unions and their allies about Justice [David] Prosser.” Wisconsin Supreme Court races have historically featured heavy special interest spending — in 2008 the partisan and costly Supreme Court election campaign, special interest group’s spending accounted for 89 percent of dollars spent on television advertising — and this year, as an editorial in the Racine Journal Times observes, “[t]he mud has indeed hit the fan…” The editorial goes on to question whether judicial elections are the right way to select judges and argues that judicial appointments would better preserve fair and impartial courts by eliminating the “taint of special interests.”
Judicial Reform
Last week the Arizona Senate approved a measure to eliminate the state bar’s role in selecting attorneys to serve on the state’s judicial screening commissions. Currently, the state bar nominates five attorneys to each of the 16-member commissions. The new proposal — which will be sent to voters in 2012 if approved by the House — would allow the governor to appoint all commissioners. The bill’s sponsor, Republican state Senator Ron Gould, said the measure is intended to ensure that a group of insiders don’t unduly influence who picks the state’s judges. An editorial in the Arizona Republic disagrees, however, arguing that the bill undermines Arizona’s successful merit selection process and threatens to compromise judicial independence by paving the way for “politically packed” commissions. Several other judicial reform proposals have been discussed in the state legislature, including a more comprehensive proposal — currently pending in the House — that would require Senate confirmation of all judicial appointments.
“This is a terrible, terrible bill that’s hated by the courts…I will not be a participant in changing our judicial selection to make it more political.” So stated Kansas Senate Judiciary Chair Tim Owens after House Republicans’ attempted to reinvigorate a proposal to replace the merit selection system of Kansas Court of Appeals judges with judicial appointments by the governor. Currently, in the event of a vacancy on the Kansas Supreme Court or Appeals Courts, the Nominating Commission sends three candidates to the governor for consideration. If the governor does not make a selection within 60 days, the Chief Justice of the Supreme Court makes the selection. A previous bill passed the House earlier this session but never progressed in the Senate. Representative Lance Kinzer amended the appeals court measure onto a current bill dealing with restriction that retired judges face when returning to the bench under special circumstances, such as judicial shortages.
Two bills seeking to advance merit selection for appellate judges in Pennsylvania were introduced by Republican state Senator Jane Earll and have been referred to the Senate Judiciary Committee. According to a blog run by the nonprofit Pennsylvanians for Modern Courts, the diverse coalition of groups and individuals supporting the initiatives includes several retired judges. The group previously argued that the highly publicized corruption trial of former Pennsylvania Judge Mark Ciavarella — in February Ciavarella was convicted on 12 counts, including racketeering and conspiracy — provides evidence that the state needs to get judges “out of the fundraising business” by adopting merit selection.
Recusal
A commentary by Brookings Institution Fellow Russell Wheeler argues that recent proposals to apply the United States Judicial Conference’s Code of Conduct for U.S. Judges to members of the Supreme Court are misdirected and could irreparably harm the judiciary. Criticism of Supreme Court Justices’ for engaging in activity that could cast doubt on their impartiality — most recently, Justices Antonin Scalia and Clarence Thomas received negative press after attending events sponsored by conservative interest group s— prompted calls for Congress to establish clear “mandatory” ethics and recusal guidelines for Supreme Court justices. However, while Wheeler agrees that the Court could benefit from increased transparency surrounding recusal decisions, he worries that creating a means by which litigants may appeal a Supreme Court Justice’s decision would “take the judiciary into uncharted territory, creating a cure that could be worse than the occasional problems created by the status quo’s lack of transparency.”
Attacks on the Judiciary
“The retention vote and accompanying drama has been a good impetus for a discussion about the role of courts, and importance of fair and impartial judiciary.” So believes Justice Thomas Waterman, one of the three new Iowa Supreme Court Justices, appointed after voters ousted three justices last November in response to the high court’s decision permitting same-sex marriage. While the three newest justices on Iowa’s high court have stated they would prefer to refrain from campaigning, they will do so if necessary to win approval on the retention ballot in 2012. The political landscape of the 2012 elections is uncertain, however increased special interest spending and the politicization of judicial elections indicate they will continue to grow “noisier, nastier, and costlier.” Meanwhile, speaking to a group in Iowa, Representative Michele Bachmann of Minnesota condemned activist judges as “black-robed masters” and congratulated the audience on removing three incumbent justices from the bench last November.
Permalink