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Fair Courts
By Bethany Foster – 05/09/08
Cross-posted from Gavel Grab
As Bert Brandenburg noted earlier this week, the Fourth Circuit delivered some good news for public financing advocates last Thursday by unanimously upholding North Carolina's system of public funding for judicial campaigns. This is a major victory for citizens concerned about fair and impartial courts.
The North Carolina decision is one of multiple recent developments on the public financing front. On the same day that the Fourth Circuit issued its decision, plaintiffs in Arizona filed an amended complaint against the matching funds provisions of that state's public funding program for statewide and legislative races. The case is back in the District Court after going up to the Ninth Circuit and then getting remanded.
Finally, in late March, a federal district court judge dismissed the core challenges to Connecticut's public financing law, ruling that the matching funds provided by that system do not violate the free speech rights of non-participating opponents and independent spenders.
Read the rest of this post here.
Tags: Democracy, Campaign Finance Reform, Public Financing, Fair Courts
By Maggie Barron – 04/09/08
Retired Supreme Court Justice Sandra Day O'Connor encouraged her staff to enjoy whitewater rafting, Mexican take-out brunch and tours of the Smithsonian. Justice Stephen Breyer loves to read French manuscripts and cultivated his distaste for footnotes during his clerkship to Arthur Goldberg. Such details were plentiful as Professor John Feerick introduced Justice O'Connor and her former colleague Justice Breyer to a well-heeled audience of lawyers and law students at Fordham Law School yesterday morning.
The two justices, and co-hosts of the day's symposium, sat together at a small table for their introductory panel, "Judicial Independence and Impartiality." Sandra Day O'Connor, dressed in a violet suit with gold buttons, her blonde hair now a shock of snowy white, frowned as she tried to twist the top off her water bottle, then leaned over towards Breyer and held it out to him. He wordlessly took it, unscrewed the top, and handed it back.
Sally Rider, Director of the William Rehnquist Center at the University of Arizona, kicked things off with a series of questions. Why, she asked O'Connor, did she decide to convene this conference on judicial independence in the first place?
O'Connor said she remembered seeing "Impeach Earl Warren" signs in New Mexico and Arizona when she was growing up, and said that in her final years on the Supreme Court, attacks on judges increased, including proposals for mass impeachments of judges involved in the Terri Schiavo case, or proposals to cut judicial terms short, or a particularly disconcerting movement towards "Jail4Judges," a campaign to allow citizen panels to review rulings from the bench, with the ability to even imprison—as the name tantalizingly implies—those who made bad decisions. These developments were "very depressing," she said, and so she decided to use her retirement to call attention to these attacks on judges.
"An independent judiciary is an essential bedrock principle, and we're losing it." The reason was in part the fact that civics and government are not a requirement for high school graduation. "One third of Americans can't name the three branches of government, but two thirds can name a judge on American Idol!"
Money has been pouring in to state judicial elections in recent years, including races for State Supreme Court justices. A 2004 campaign for a seat on the Illinois Supreme Court brought in a record-setting $9.3 million in political contributions, including hundreds of thousands of dollars from State Farm, a company with a case pending before the court. And just recently, Wisconsin voters were subjected to over 11,000 televised campaign ads in the weeks before their state's Supreme Court race, over ninety percent of which were purchased by special interest groups (racking up a bill of well over 3.6 million dollars). Said O'Connor, "We put cash in the courtrooms, and it's just wrong." She then pointed to the room of lawyers and students. "You should take this seriously." (A later panel backed up O'Connor's concerns. New York Times legal correspondent Adam Liptak, Brennan Center attorney James Sample and Professor Michael Dimino discussed evidence that judges tend to rule in favor of their campaign contributors.)
She went on. "No other nation in the world elects judges." She pointed to Georgina Woods, the chief justice of Ghana, sitting in the front row, as if to illustrate her point.
"Why are we tolerating this? What are we going to do about it?" Then, seeming to remember that the initial question posed to her several minutes before was "why did you convene this conference," she added, "That's why," and sat back in her chair. The audience laughed and applauded.
Breyer took the floor next. Keeping state courts impartial is a major issue, but try talking about it with people "and they're asleep after five minutes." He recounted a trip to Russia he had made when serving as an appellate judge for the First Circuit after he was appointed by Carter. Meeting with Russian judges from across the country, he was surprised to hear their accounts of "telephone justice," when the party boss calls and tells judges which way to vote. "They asked me, ‘do you have telephone justice in the United States,' and I had to explain to them that no, the President wouldn't call you. He'd be crazy to do that."
More and more people today think that judges make decisions based on politics rather than the law, he added. O'Connor began to interrupt, then changed her mind. "No, no," she said, waving her hand at him, "you tell them."
He continued. "It's extraordinary that three hundred million people have agreed to settle disputes using the law, not sticks and stones on the street, like they do in some places."
Sally Rider asked what people who are concerned about judicial independence can do. "It takes concerned citizens" said O'Connor. And it takes activism from the business community, because "legislators will listen to them more than the average housewife." Breyer said this was a difficult message to get across to people. "That's why the people I like talking to the most are 9th and 10th graders, because they want to know about this stuff."
He encouraged the audience to get involved any way they could—writing to newspapers, or volunteering at schools to talk about the law. "Our method of resolving disputes in this country, what a treasure it is."
"That's a good place to stop," O'Connor nodded. "I totally agree."
Tags: Democracy, Fair Courts
By James Sample – 03/22/08
(cross posted from The Wall Street Journal):
Certain American values transcend partisan divisions. One is that money should not influence the courts. But with record sums pouring into judicial elections, the ideal of due process is giving way to a perception of pay-to-play justice.
This is not a matter of red versus blue. Seventy-six percent of Americans believe that campaign contributions influence judicial decisions, according to a 2001-2002 survey by Greenberg Quinlan Rosner Research and American Viewpoint; 46% of state court judges agree, according to a written survey by the same organizations. Separate recent empirical studies in the New York Times and the Tulane Law Review support the proposition that contributions not only correlate with decisions, but alter them.
John Grisham's latest bestseller, "The Appeal," is a shadowy tale of a chemical company that buys a favorable legal ruling by funding the election of the judge who makes it. Farfetched? Not according to West Virginia Supreme Court Justice Larry Starcher. In a scathing opinion last month, he decried a "cancer" of moneyed influence in his court, asserting that "John Grisham got it right when he said that he simply had to read The Charleston Gazette to get an idea for his next novel."
Read the full Wall Street Journal piece here.
Tags: Democracy, Campaign Finance Reform, Fair Courts, Independence & Accountability, Judicial Advertising, State Judicial Elections
By Maggie Barron – 01/29/08
Last
night's State of the Union address, Bush's last, was about legacy-building. But
the President spent only a moment of his hour-long speech on a subject that
could be his most enduring legacy of all, one that will have an impact long
after troops are out of Iraq
and the housing market has recovered — the makeup of the judicial branch.
Many of
his nominees, Bush complained in the speech, are being "unfairly delayed." He
does have some trouble; he nominates divisive candidates, and the Senate
Democrats resist. Last year, for example, Bush dropped
the nomination of three judges when it was apparent that they would never
be confirmed. And of course there were the events of 2004, when the country finally
learned what
the word "filibuster" meant. But these "delays" are relative — a
glance through the records of
Bush's judicial nominations shows that many votes to confirm judges are
unanimous. In a statement last November, Senate Judiciary Committee Chairman
Senator Patrick Leahy reported that the Senate had confirmed more judges in
2007 than in the previous three years, in which Republicans had a majority.
The President
plays a critical role in creating the entire judicial branch, not just the
Supreme Court. Bush has appointed two Supreme Court justices, but he has also successfully confirmed 294
judges to the federal district and circuit courts. By the end of their
terms, Clinton and Reagan had successfully confirmed 377
and 382 federal judges, respectively. By the end of his term, Bush may not
reach the same count, but his choices of hundreds of judges will still have a
lasting impact on the country. These district and circuit court judges serve
lifetime appointments. So it's little wonder that, as
Bob Dole said during his presidential campaign, "the federal judges a
president chooses may be his most profound legacy."
It is a
legacy that we have largely been ignoring when it comes to electing our next
president. From watching the Democratic and Republican debates, for example,
one would think that the only questions facing our courts these days are Roe v. Wade and the Second Amendment. In
the Democratic
debate in Las Vegas last November, a voter asked that candidates "what
qualities" a judicial nominee must possess. Wolf Blitzer spun the question
around, making the candidates give "yes or no" answers to whether or not they
would appoint judges who supported abortion.
It is
essential that the media ask the candidates about their judicial philosophies,
and allow them to answer in full sentences. And it is essential that we the
voters stop to listen, because the matter of judicial candidates provides
important clues about how a candidate might govern. In 2000, Bush was running
on a platform of "compassionate conservatism," but when asked said he would
appoint justices in the mold of Scalia and Thomas. His answer provided a guide,
not just to the kind of judiciary we could expect from a Bush presidency, but
to the tenor of his presidency as a whole.
We are
often reminded that the next president could very well appoint one or two
Supreme Court justices, but no one mentions that, if the next presidency is
anything like previous ones, the person who is elected could have the
opportunity to nominate candidates for perhaps 40% of this country's 857
circuit and district judgeships.
In turn,
these judges have immense influence. While the Supreme Court typically hears
about 100 cases each year, the circuit and district courts hear tens of
thousands of cases across the country. With few cases ultimately reaching the
Supreme Court, judges on appellate courts often have the last word on a slew of
important issues: employment law, the environment, voting rights, national
security policy, civil rights, and yes, possibly reproductive rights and gun
control.
Knowing a
candidate's judicial philosophy might not seem as pressing as knowing his or
her opinions on the war, or the economy, or health care. Yet it's important to
keep in mind that we will be living with the next president's judicial
philosophy for decades. The significance of Bush's impact on the judiciary was
clearly not lost on the four Supreme Court justices who attended the speech. This
may have been Bush's last State of the Union address but, as the justices know,
we will be hearing his voice from the federal bench for years to come.
Tags: Democracy, Fair Courts, Diversity on the Bench, Economic Opportunity, Checks & Balances
By James Sample – 01/25/08
The Supreme Court's reversal of the lower court decisions in
Lopez Torres v. New York State Board of Elections was a major victory for the defenders of New York's judicial selection status quo. As counsel to the plaintiffs, the Brennan Center, along with all those
observers who
understand the
seamy realities of how New York's system actually works in practice, was certainly disappointed by the decision.
That said, as we indicated in an op-ed in Tuesday's New York Law Journal, the First Amendment claim rejected by the Supreme Court is just one chapter in an 87-year story. The battle to end the Byzantine process by which New York's trial court judgeships are determined, will go on both legislatively and in the courts.
Today, a wonderful and deeply personal profile story in the New York Times looks at the remarkable woman and jurist behind the case that bears her name. The profile examines the courage of our lead plaintiff, whose story serves as a valuable reminder of why the fight for a truly accessible selection process is not only worth fighting, but is an essential component the larger struggle for truly fair and independent courts.
Tags: Democracy, Fair Courts, State Judicial Elections
By James Sample – 01/22/08
It is not every day that a U.S. Supreme Court justice writes a separate one-paragraph opinion merely for the purpose of pointing out that, as a matter of policy, a state law is "stupid." That is remarkable enough, but when the law in question governs the third branch of government in a state that -- were it a nation -- would be the world's 11th largest economy, such bluntness should not be ignored.
To that end, Rich Samp of the conservative Washington Legal Foundation and I have jointly written this op-ed to for the New York Law Journal.
You can read the entire piece here.
Tags: Democracy, Fair Courts, Diversity on the Bench, Independence & Accountability, State Judicial Elections
By James Sample – 12/13/07
*Cross-posted from The Huffington Post
The sun may start rising in the west over Wisconsin. Justice Annette Ziegler has recused herself from a case.
As detailed in this space last week, Ziegler has ruled on cases involving a bank that her husband helped to run; has ruled on cases involving a company in which she owned $50,000 in stock; and recently even sat on a case
involving an organization that spent $2 million -- more than the total
expenditures of her entire campaign -- to help her get elected.
In sum, whatever attributes Ziegler might have previously demonstrated, an Aristotelian radar
for the rules of ethics was not one of them. The Wisconsin Ethics
Board, which reached a settlement with Ziegler that included
substantial fines, noticed. Editorial boards around the state noticed. A special three-judge panel
convened to address her violations of the Code of Judicial Conduct and
Wisconsin ethics rules applicable to all public officials, noticed. The
Governor of Wisconsin, who called a special legislative session to address the problem of justice-for-sale noticed. Bloggers noticed. Governmental reform groups noticed.
This week, the Wisconsin Supreme Court itself (yes, including Justice
Ziegler), clearly having noticed, even sent a truly remarkable letter
to Governor Doyle unanimously endorsing the concept of judicial public financing.
Nearly everyone in Wisconsin, save one person, it seemed, had noticed.
Yet now, maybe, finally, possibly, could-it-be true, and could-it-be-because-of-all-of-the above, Justice Ziegler has noticed?
The details of yesterday's recusal are here.
If you believe in due process, feel free to scream Eureka. And have
little doubt that interest groups everywhere are mortified by this rare
failure of a quid to produce even the appearance of a quo. But also
realize this: so far it seems that Justice Ziegler's newfound
enlightenment does not extend to mathematics.
Yesterday's decision to recuse, in light of $17,000 in combined
contributions from groups representing home builders and real estate
agents, stands strikingly at odds with her continued participation in
the case involving the Wisconsin Manufacturers & Commerce, who
independently spent $2 million to support her election.
Give a candidate a choice between $2 million in supportive
independent expenditures (a choice they technically could not make) and
$17,000 in direct contributions, and no candidate in their right mind
would choose the latter. So if $17,000 appropriately triggers recusal .
. . hmm, I suspect all of Wisconsin sees the problem.
Maybe soon, Justice Ziegler will too.
Tags: Democracy, Fair Courts, Independence & Accountability, State Judicial Elections
By James Sample – 12/05/07
*Cross-posted from The Huffington Post
Slate's Dahlia Lithwick, writing at GavelGrab,
cogently points out that today's Supreme Court oral arguments in the
latest rounds of Guantanamo litigation represent the kind of historical
marker where it's worth taking note because, in her words, "you're
going to want to tell your great grandkids about what happened to the
rule of law in America back in the day."
She's right. As Jonathan Hafetz makes clear in "Ten Things You Should Know About Habeas Corpus"
there can scarcely be a more egregious violation of due process than
detention without review. But while far less fundamental than the
survival of habeas corpus in the form of real hearings, before real
courts, with real procedural protections, America's state courts are
facing a due process crisis of their own.
In short, the influence of big money in our nation's state courts is
nearing the point where, well, "you're going to want to tell your great
grandkids about what happened to the rule of law in America back in the
day."
While the outside threats to judicial independence are serious and metastasizing,
the unfortunate -- and for many, uncomfortable -- fact is that the
de-legitimizing of America's courts is at least partly an inside job.
When judges fail to police themselves, and when the judiciary fails
to adequately police the judges who fail to police themselves, we all
lose. For the most recent case in point, we turn to a blizzard of news
amidst last week's blizzards in Wisconsin.
Wisconsin serves as the latest reminder that bias and/or the appearance of bias is not limited to duck-hunting.
Sometimes, as in the case of now-Wisconsin Supreme Court Justice,
Annette Ziegler, it involves ruling on cases involving a bank that your
husband helps to run, or ruling on cases involving a company in which you own $50,0000 in stock, or, one week ago, sitting on a case
involving an organization that spent $2 million -- more than the total
expenditures of your entire campaign -- to help get you elected. The
last of these instances led to a flurry of editorials in Wisconsin
urging her to step down from the case, and even from the bench.
Justice Ziegler is merely one acute illustration of an increasingly
chronic problem. Indeed, for the last few years, now-Illinois Supreme
Court Justice Lloyd Karmeier was Exhibit A
for the failure of the rules of self-policed judicial disqualification
to keep pace with a rising tide of money in judicial elections. Alas,
it appears that his judicial colleague to the north, Justice Ziegler,
is on pace to give him a run for the, um, money.
In almost every state in the country, including Wisconsin, the
general standard on recusal closely mirrors that of the American Bar
Association -- namely that a "judge shall disqualify himself or herself
in a proceeding in which the judge's impartiality might reasonably be
questioned."
For political candidates, money is oxygen. And in a $5 million race, $2 million buys a lot of breathing.
As detailed in the press stories, Wisconsin Manufacturers &
Commerce spent more than $2 million last spring supporting Justice
Ziegler. Now, it has filed a brief and helped to finance the appeal of
a case that could trigger an estimated $350 million in tax refunds to
businesses. Justice Ziegler has declined to recuse herself. So let's
take those words for a test drive: might it be reasonable to question Justice Ziegler's impartiality under the circumstances?
Well, is habeas corpus a fundamental right? Not only are the answers
to those questions the same, they are grounded in the same fundamental
right -- due process.
The fact of the matter is that, whatever one's view of state
judicial elections, they are not going away any time soon. What to do?
Public financing, which makes eminent sense in the legislative and executive contexts,
makes even more sense in the non-constituent-based judicial branch.
Recognizing this, in recent years North Carolina and New Mexico have
adopted judicial public financing as a way to get ahead of the
special-interest tidal wave.
For lawyers, state courts may lack the sex appeal of their federal
counterparts. But sexy or not, they are also where the vast majority of
American justice occurs. In elective state judiciaries, short of public
financing, strengthening the enforcement of recusal rules is critically
important.
For the wonky few, the Brennan Center's initial recommendations in that regard are available here.
But for the rest of us, standing by while scenarios like Justice
Ziegler's become the rule rather than the exception is not a serious
option. Not unless you actually want "to tell your great grandkids
about what happened to the rule of law in America back in the day."
Tags: Democracy, Fair Courts, Independence & Accountability, State Judicial Elections
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