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The Week in Fair Courts

By Maria da Silva – 03/22/11

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.

State Judicial Selection

• The race for a seat on the Supreme Court of Wisconsin between incumbent Justice David Prosser and JoAnne Kloppenburg, an assistant state attorney general, is officially non-partisan, but the contest is showing signs of becoming an intense, ideologically-driven contest. Some observers wonder whether the state’s newly-passed collective bargaining law will become an issue in the Supreme Court election, and a recent TV advertisement by the Greater Wisconsin Committee alleges that Justice Prosser will act as a rubber stamp for Republican Governor Scott Walker — who led the charge to strip most public employees of collective bargaining rights. According to the Beloit Daily News, Justice Prosser denies that suggestion. Meanwhile, Justice Prosser is on the defensive over several heated statements made in an email exchange between justices last year, which have recently come to light.
• The West Virginia Senate killed a measure that would have increased the funds available for the state’s pilot public financing program for 2012 state Supreme Court elections. The pilot program has several sources of funding, and the state intends to inject $3 million — from rebates from the state auditor’s Purchasing Card program — into the program by 2012. The pilot program, which House Republicans opposed, was presented as a way to curb the influence of special interest money in judicial elections.
• A bill seeking to replace Kansas’s merit selection system for Court of Appeals judges with an appointment system has received mixed public reaction. A Kansas City Star editorial denounces the move as compromising the state’s well established system, saying it is likely to increase the partisan politics involved in selecting Kansas judges. The editorial notes that “[l]awmakers who favor the change conveniently ignore the problems inherent in seating judges who would be beholden to the very politicians who make the laws that judges are expected to review.” In contrast, the Kansas Watchdog supports the bill, arguing that the current process affords a disproportionate influence to the state bar association.
•  “The next cycle of judicial elections in Nevada could be nastier than usual if the Nevada Supreme Court eases restrictions on campaign behavior — a real possibility given recent decisions from the U.S. Supreme Court and last fall’s voter rejection of merit selection.” So says an article in the Las Vegas Review-Journal, which wonders if Nevadans will soon witness the type of contentious judicial elections seen — and decried — in other states. The article came in response to a recent hearing of the Standing Commission on Judicial Ethics and Election Practices, during which the state’s justices indicated they favor lifting limits on what judicial candidates can say and how they raise campaign cash. An administrative opinion is expected from the court in upcoming months. The Review-Journal also editorialized on the topic.

Judicial Reform

• Illinois judges will now undergo mandatory, confidential performance evaluations. The evaluations, which will focus on helping judges identify and fix performance problems, are the final program to be unveiled as part of an initiative to improve public confidence in the judiciary instituted by the Administrative Office of the Illinois Courts in 2008. Chief Justice Thomas Kilbride expressed his support for the program, describing it as “an extremely important step in making a good judiciary even better.”
• New York’s proposed new rule aimed at removing the influence of campaign money from courtrooms has received considerable attention from judicial advocacy groups and national media. In a letter to Court of Appeals Chief Judge Jonathan Lippman, the Brennan Center for Justice and the Justice at Stake Campaign commended the Court’s commitment to positive reform and recommended it adopt additional rules to address independent expenditures in judicial elections and to prevent potential “judge shopping.” A Chicago Tribune editorial highlighting New York’s new disqualification rule contends that the rule may have a limited impact if independent expenditures against judicial candidates rise. Meanwhile, the New York Times editorial board discusses the need for the U.S. Supreme Court to similarly establish a comprehensive recusal policy, stating that questions about judicial impartiality “are too serious to ignore.”
•  “State House Speaker Dean Cannon says they threaten the freedom and liberty of Americans. U.S. Rep. Sandy Adams says they disregard our 'national sovereignty.' Are they talking about Al-Qaida? Osama bin Laden? No. American judges.” An op-ed in the Orlando Sentinel criticizes a bill that aims to alter Florida’s judicial merit selection system, which cleared a state House committee last week. The proposal to add three additional members to the Florida Supreme Court, and split the Court into civil and criminal tribunals, also contains language requiring Senate confirmation of gubernatorial appointments to Florida’s appellate courts and eliminating nominating commissions for appellate judges. An article in the Gainesville Sun similarly worries that the proposed alterations will adversely affect the state’s judiciary.

Court Resources

• “The opportunity to access justice in our courts is becoming as much a luxury as a Louis Vuitton bag.” So contends American Bar Association President Stephen Zack in a commentary in The Hill, which condemns the funding crisis facing state courts across the country. Echoing Zack’s concerns, Minnesota Supreme Court Chief Justice Lorie Gildea recently stated that the public ought to be outraged over the way state courts are hurt by budget cuts. Chief Justice Gildea claimed that in three recent cases felony convictions for violent crimes were reversed on appeal because the understaffed judiciary was unable to meet mandated requirements for speedy trials. Reuters similarly warned that the federal judiciary may be compromised if Congress doesn’t negotiate a new budget and the federal government is forced to close down.

Diversity on the Bench

• The diversity of the federal bench is being compromised by the judicial confirmation crisis, according to Leslie Proll of the NAACP Legal Defense and Educational Fund. Proll points out that 40 percent of President Obama’s nominees to the federal bench are racial or ethnic minorities, and that the slow pace of confirmations undercuts the President’s efforts to diversify the judiciary. Moreover, three of the four nominees facing the highest hurdles for Senate confirmation are racial minorities: Goodwin Liu would be the lone Asian American in the Ninth U.S. Circuit Court of Appeals; Edward Chen would become the first Asian American to serve on the district court in the Northern District of California; and Arvo Mikkanen would be the only Native American on the federal bench if confirmed.

Impeachment and Disciplining of Judges

• The New Hampshire House voted last week to direct the House Judiciary Committee to investigate a marital master — a court officer who handles family court cases—for possible impeachment. The resolution allows the panel to investigate any justice in the superior court system. According to the National Center for State Courts, the state legislature has sought to remove or impeach justices on several occasions in recent years.  The minority committee report characterized the bill as a “breach of due process of staggering proportions,” and an editorial in the Concord Monitor denounced the effort as a “witch hunt.”

Miscellaneous           

• After three Iowa Supreme Court justices were removed by voters last November in response to the Court’s unanimous decision upholding same-sex marriage, the remaining justices have endeavored to engage with the public over the role of the Supreme Court by giving speeches and granting interviews with reporters. On May 4, the justices will appear on a morning radio program at the Iowa Judicial Branch Building, which houses the Iowa Supreme Court. The program is one of numerous “Law Day” scheduled across the state that week, including tours of the Supreme Court and the justices’ chambers and an opportunity for private citizens to speak with the justices.

Tags: Democracy, Fair Courts, Independence & Accountability, State Judicial Elections

The Week in Fair Courts

By Maria da Silva – 03/14/11

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.

Court Resources

• A New York Times editorial on the deep fiscal crisis facing New York’s judiciary notes that Chief Judge Jonathan Lippman “has reluctantly agreed to make cuts in his $2.7 billion budget request, including a reduction in the number of people working for the court system. But he is refusing to back down on his call for a $25 million increase, to $40 million, in support for civil legal service programs that help low-income New Yorkers faced with foreclosures, evictions, domestic violence and other serious legal problems.” According to Chief Judge Lippman, “What is at stake . . . is nothing less than the legitimacy of our justice system.” He added that the rule of law “loses its meaning when the protection of our laws is available only to those who can afford it.”
• In her state of the judiciary address, Alabama Chief Justice Sue Bell Cobb warned that “the possible reduction in funding to the courts will have a devastating impact on our ability to provide equal justice under the law.” Up to 500 court employees will be laid off beginning October 1 because of a 10 percent budget cut for Alabama’s Unified Court System. As Cobb informed the state legislature, “[w]e literally have cut and cut and cut. There is nothing else to cut.”  Alabama is not the only state facing a budget crisis, and state courts across the nation are struggling to adjust to broad funding shortfalls.
• Implementation of California’s Court Case Management System — intended to unify case management for the superior courts located in all 58 counties — has faced funding issues, political infighting and public doubt since planning for the system began in 2003. A recent state audit faulted the project’s cost controls, management and oversight. Numerous trial court judges and lawmakers are demanding the project — originally projected to be more than $1.7 million over budget and seven years behind schedule — be scrapped. Several state assemblymen sent a letter to Chief Justice Tani Cantil-Sakauye on February 24 demanding the dismissal of Administrative Office of the Courts Chief Bill Vickrey. Chief Justice Cantil-Sakauye reaffirmed her support for both Vickrey and the CMS project, but stated that the court will adopt the auditor’s recommendations, including better oversight of the project and soliciting the input of trial court judges.

State Judicial Selection

• State legislatures across the nation are considering changes to state methods of judicial selection. In the past week, bills seeking to modify or overturn merit selection systems have advanced in Arizona, Iowa, and Oklahoma, while in Arkansas a bill to replace contested judicial elections of appellate court judges with a merit selection system was filed. According to the National Center for State Courts, a bill before the Arizona Senate would end retention elections and require Senate confirmation of judges selected by the governor, while another would revise the judicial nominating commission membership to decrease the state bar association’s influence in the process. A measure passed unanimously by the Iowa House seeks to ensure the state’s nominating commissions are representative by requiring the governor to appoint at least one district judicial nominating commission member from each county. And the Oklahoma Senate passed a resolution to eliminate the Judicial Nominating Commission and require Senate confirmation of the governor’s judicial appointments.
• Legal observers are concerned that, after Iowa’s retention vote last year, activists may target other states, leading to more money and politics in “states that have tried to insulate their selection of judges from politics and money by using retention elections.” As the 2012 presidential election cycle gets underway, politicians are indeed focusing on the judiciary. At an event sponsored by the Iowa Faith & Freedom Coalition featuring potential Republican presidential contenders, Newt Gingrich complained that judges are “fundamentally out of touch with America.” And speaking at the University of Iowa, Texas Congressman Ron Paul stated his belief that Americans should have the right to remove federal judges.   
• In other Iowa news, the Des Moines Register reports that Governor Terry Branstad appointed attorney William Gustoff to the state Judicial Nominating Commission. The article notes that Branstad’s choice is unusual in several respects, including that the governor normally only appoints non-lawyer members to balance the attorney members elected by the state bar association. More puzzling is the fact that Gustoff is one of four attorneys currently suing the Commission, claiming the Commission is biased against non-lawyers because they have no say in the selection of the Commission’s attorney members. Gustoff stated that although he is listed as the lead attorney for one of the plaintiffs, his involvement in the case is almost nonexistent now.

Federal Judicial Selection

• George Babcock, an attorney representing more than a dozen clients whose cases have been transferred from federal court in Rhode Island to Massachusetts or New Hampshire because of the backlog of cases caused by Rhode Island’s four-year judicial vacancy, laments the ensuing cost and disruption to all parties involved. “I want to work on my cases in my office, not in a Motel 6,” Babcock told the Associated Press. The AP also quoted Chief Judge Mary M. Lsi of the federal district court in Rhode Island, who claimed that partisan squabbling in the U.S. Senate was responsible for keeping the vacancy open. While the Senate Judiciary Committee approved nominations of six federal judges last week, President Obama’s nomination of trial attorney Jack McConnell to the vacant Rhode Island judgeship continues to meet opposition from the U.S. Chamber of Commerce and some Republicans. Several other nominations, including that of Caitlin Joan Halligan for the District of Columbia Circuit, face opposition from conservative groups.

Attacks on the Judiciary

• “Activist judges, and now an activist president, have been trying to unilaterally define marriage for too long. This issue should instead be decided once and for all by the American people and the states.” So says Indiana Republican Congressman Dan Burton, who has introduced a bill to strip federal courts — including the Supreme Court — of their authority to hear cases involving same-sex marriage.  Burton introduced the measure in response to the Obama administration’s recent decision to no longer defend the federal Defense of Marriage Act in court.
• Questions surrounding standards of judicial disqualification and the impartiality of U.S. Supreme Court Justices continue to receive considerable media attention in recent months — including on Comedy Central’s Colbert Report.  An article in Politico notes that while legal scholars and court watchers across the political spectrum have dismissed recent attacks on Justices Clarence Thomas and Antonin Scalia as “hollow”, the attacks “represent the most concerted attack on a bloc of justices since the early 1970s, when conservatives waged a long campaign against the liberal justices of the Warren court.” Yet recent commentaries underscore the traction the issue has achieved. In the Los Angeles Times, George Washington University law professor Jonathan Turley takes on Justice Thomas, arguing that “[t]he Supreme Court justice argues that criticism of him is an attack on the court itself. But a single justice doesn’t define the institution.” Meanwhile, in a Washington Post commentary, Nan Aron, president of Alliance for Justice, concludes that the best way to assuage ethical concerns would be to extend the Judicial Code of Conduct to the Supreme Court.  According to Aron, “Regardless of whether one shares fears of politicization, disputes are inevitable so long as the nation’s highest court operates with almost no compulsory ethics rules to guide — or constrain — behavior. . . .Surely it makes no sense to have lesser standards for the highest court than those in place for lower courts.”

Judicial Reform

• Florida House Speaker Dean Cannon introduced legislation to expand the state Supreme Court from seven to 10 justices, and divide the justices into two panels, focusing on civil and criminal cases, respectively. The court overhaul proposal met mixed reviews. Although Cannon explained the measures as a way to increase accountability and improve the administration of justice, House Democratic Leader Ron Saunders remarked that “it’s not a good time to expand the number [of] judges when the ones we have aren’t properly funded.” Meanwhile, an Orlando Sentinel editorial worries that the proposal would make it easier to dump judges from the bench and would increase pressure on judges to seek special interest cash in their campaigns.

Tags: Fair Courts, Independence & Accountability, State Judicial Elections

This Week in Fair Courts

By Maria da Silva – 03/07/11

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.

Tags: Democracy, Fair Courts, Independence & Accountability, State Judicial Elections

Two Years after Caperton, Small Steps Forward, Many More Strides Needed

By Andrew Silver – 03/03/11

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 invitation by 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:

1. 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.
2. States should require transparent decision-making, including written rulings, on recusal requests.
3. 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.
4. 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.

Tags: Democracy, Fair Courts, Independence & Accountability

This Week in Fair Courts

By Maria da Silva – 02/28/11

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.

Tags: Democracy, Fair Courts, Diversity on the Bench, Independence & Accountability, State Judicial Elections

This Week in Fair Courts

By Maria da Silva – 02/18/11

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.

Feature Story

• “Nothing could be more important for the judiciary than to have the public see that we’re neutral arbiters of disputes. If we don’t have that, we don’t have anything.” So said New York's Chief Judge, Jonathan Lippmann, explaining the need for a proposed new judicial disqualification rule. Chief Judge Lippmann announced the new rule — which will prohibit elected judges from hearing cases involving parties or lawyers who gave $2,500 or more to their campaigns in the prior two years — in his state of the judiciary address on Tuesday. The rule also ensures that neutral decision-makers — in this case, court administrators — rather than the individual judge, make the recusal decision. Concerns have been raised about the rule’s silence on independent campaign expenditures and the possibility that it would open the door to gamesmanship and judge-shopping.

State Judicial Selection

• Incumbent Justice David Prosser and challenger JoAnne Kloppenburg advanced in Tuesday’s primary election for a seat on the Wisconsin Supreme Court, and will compete in the general election on April 5. Both candidates accepted public financing, but special interest spending may dominate in the general election, given the court’s current 4-3 ideological breakdown and recent trends in outside group spending in judicial elections. In the primary contest, the conservative Wisconsin Club for Growth spent more on TV advertising than all four candidates combined — 70 percent of all TV spending, according to the Brennan Center.

• The Oklahoma Supreme Court rejected a challenge to the state’s judicial nominating commission this week. The commission’s membership is selected from six regions based on Oklahoma’s previous six congressional districts, but since 2002, the state has had only five congressional districts. The nominating commission came under scrutiny when outgoing Governor Brad Henry chose to appoint District Judge Noma Gurich to the state Supreme Court. Gurich — who stated she would not take her seat until the constitutional challenge was resolved — has not yet been sworn in, but the Supreme Court upheld her appointment, ruling “that the commission’s decisions are valid when decided by a majority of its members” regardless of any changes to the state’s congressional allocation.

• Several states are debating whether mandatory disclosure of judicial candidates’ party affiliations promotes transparency or injects politics into the judiciary. A bill recently introduced in the North Carolina legislature would restore party labels starting in 2012 for candidates for District Court, Superior Court, Appellate Court, and the state Supreme Court. Former North Carolina Supreme Court Justice Bob Orr said an appointment-retention system would be a better way to insulate judges from politics. Similarly, a proposed referendum for the 2012 ballot in Montana would require candidates for district court judgeships and the state Supreme Court to run with partisan labels. Currently, judicial elections in both states are nonpartisan, but supporters of the Montana proposal argue that party labels guarantee voters are aware of judges’ “individual biases.” Meanwhile, a bill in Missouri — which is nationally recognized for the appointment-retention system under which most of its judges are chosen — would institute nonpartisan elections for any judgeships not covered by the merit selection system.

• Judicial candidates in Alabama raised more money in 2010 than counterparts in any other state, prompting several editorials to criticize the state’s judicial elections. The Anniston Star compares Alabama’s Supreme Court races to a “figurative walk down the Las Vegas strip: All lights, all flash — and all about money,” while the Mobile Press-Register worries high levels of campaign fundraising and special interest spending create an impression that justice is for sale.

Diversity on the Bench

• State Supreme Courts continue to make strides toward greater diversity. In Hawaii, the senate confirmed Judge Sabrina McKenna to the bench on Wednesday, making her the state’s first openly gay high court justice. Meanwhile, on the same day, Justice Cynthia Kinser was sworn in as the first female chief justice of the Virginia Supreme Court.

The Federal Judiciary

• Both the House and Senate introduced legislation to establish an independent office charged with investigating judicial ethics violations. Both versions of the bill limit the inspector general’s mandate to investigate judicial ethics violations — rather than reviewing or investigating the merits of specific legal decisions — to insure the new office does not undermine the independence of the judiciary. The Senate version would grant the inspector general power over the Supreme Court — the House version would not. Meanwhile, Rep. Christopher Murray, (D-CT), plans to introduce legislation to require Supreme Court justices to disclose their reasons for recusing themselves from hearing a case. The bill will also require the high court to formalize a procedure through which parties can “request the court to decide whether a particular justice has a conflict of interest.”

Tags: Democracy, Fair Courts, Diversity on the Bench, Independence & Accountability, Judicial Advertising, State Judicial Elections

Victory for Recusal Reform in New York

By Adam Skaggs – 02/14/11

In his State of the Judiciary address tomorrow, New York’s Chief Judge, Jonathan Lippman, will announce a new state policy that tackles an issue of critical significance to judicial independence and will shore up public confidence in fair and impartial courts: reforming judicial disqualification practice. 

The new rule takes aim at the conflicts of interest that can arise when the same parties and lawyers who fund judges’ election campaigns appear in their courtrooms. The Brennan Center has long urged states to address the problems that arise from money in judicial elections, and we sent Judge Lippman a letter last fall urging him to take action on judicial disqualification. We applaud Judge Lippman for his leadership on an issue of unparalleled importance to the judiciary.

Public confidence in the courts is at stake. Three in four Americans believe that campaign spending affects courtroom decisions. More than 80 percent believe judges should not hear cases involving major campaign supporters. In its landmark decision in Caperton v. A.T. Massey Coal Co., the United States Supreme Court said that large campaign expenditures can cause “a serious risk of actual bias” in courtroom decisions.

New York’s new rule meets the challenge by providing that “no case shall be assigned” to a judge to whom any parties or lawyers involved in the case donated $2,500 or more in the preceding two years. New York is the eighth state in the last two years to adopt a rule that disqualifies judges when campaign spending raises questions about judicial impartiality. Utah, Arizona, Washington State, Oklahoma, Iowa, Missouri, and Michigan have already done so (and Georgia may soon adopt a very promising new rule). None of the rules adopted thus far are identical. The New York Times described New York’s unique rule as “the most restrictive in the country.” That’s true — and not true.

New York’s new rule establishes a per se threshold: if a party or lawyer contributes $2,500, the judge is disqualified—no further questions asked. In terms of the triggering amount, New York’s rule is not the most restrictive: two other states have rules that disqualify judges when spending passes a threshold even lower than New York’s. (In Arizona, the disqualifying threshold is $840, and in Utah, it’s less still: A judge can’t hear a case if a party or lawyer has spent only $50.)  New York’s rule also applies only to direct contributions to candidates; it is silent on the kind of independent campaign expenditures that have played a major role in judicial elections in states outside New York.  Policies recently adopted in Washington State and Iowa are arguably stricter than the New York rule because they extend to cover independent expenditures as well as contributions.

New York’s rule arguably is the nation’s most restrictive, however, in terms of whether judges have any discretion in determining whether disqualification is necessary. Under the Empire State’s new policy, judges themselves won’t decide if they’re barred from hearing a case under the rules. That decision will be made by court administrators—even before the initial case assignment is made. So judges who might have conflicts of interest will never have the chance to rule on their benefactors’ claims. Disinterested, neutral decision-makers will be in charge of making all disqualification decisions.

Ensuring neutral assessments of potential conflicts of interest is a goal of the utmost importance. The Brennan Center has repeatedly said that states should adopt rules to guarantee that challenged judges don’t have the last and final word on whether to step aside (as is, unfortunately, the case in many states today). By having objective court administrators evaluate conflicts of interest, rather than the challenged judges themselves, New York’s new rule addresses one of the most criticized aspects of judicial disqualification practice across the nation.

(As laudable as the goal of insuring wholly neutral, disinterested decision-making on disqualification issues is, having court administrators apply an automatic, per se rule does create one opportunity for mischief. If an automatic rule is much easier to apply than a more nuanced standard that takes into account the totality of circumstances surrounding a party’s campaign spending, it’s also more easily gamed. Imagine a major corporation planning to bring an important lawsuit, but afraid that a particular judge will be hostile to its claims. Under an automatic rule, all the company has to do is cut a check for $2,500 to the disfavored judge, and it can be sure he or she won’t get near the case. That’s why, to prevent such judge shopping, it’s important to allow any party whose opponent has made a presumably disqualifying contribution to waive disqualification. We hope that, as the New York rule is finalized, an effective waiver provision designed to discourage gamesmanship will be included.)

Under Chief Judge Lippman’s leadership, New York is poised to join the vanguard of states showing bold leadership and generating momentum for recusal reform nationally. To accelerate this movement, it is time for the organization that has defined judges’ ethical duties for nearly a century – the American Bar Association – to again take up the mantle of leadership.

The ABA has played a leadership role in defining judges’ ethical obligations since an ABA committee led by then-Chief Justice (and former President) William Howard Taft, drafted the first formal ethics rules for American judges in 1924. The Association is certainly aware of the stakes: Two years ago, it filed a brief with the U.S. Supreme Court that said, “Few actions jeopardize public trust in the judicial process more than a judge’s failure to recuse in a case brought by or against a substantial contributor.” The ABA’s House of Delegates is currently considering a proposal that would urge states to draft disqualification rules that clarify when recusal is appropriate because of campaign spending.

Whether or not the ABA adopts the pending proposal as currently drafted, it is high time it took action on judicial disqualification. As Chief Judge Lippman explained: “Nothing could be more important for the judiciary than to have the public see that we’re neutral arbiters of disputes. . . . If we don’t have that, we don’t have anything.” New York’s new rule is a step in the right direction.

Tags: Democracy, Fair Courts, Independence & Accountability

This Week in Fair Courts

By Maria da Silva – 02/14/11

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.

The Federal Judiciary

• “Three appointments over three years to get a judge with impeccable credentials confirmed to the federal bench? That’s not advise and consent. That’s absurd.”  An Oregonian editorial laments the glacial pace of judicial nominations, noting that while Judge Marco Hernandez was one of three federal judges to receive Senate confirmation Monday, nearly 50 additional nominees await action. Federal judges currently retire at a rate of one per week, and there are now over 100 district or circuit court vacancies, compared to the 54 judicial vacancies when President Obama took office.  If the situation is not remedied soon, “people will lose faith in the rule of law,” according to Alex Kozinski, chief judge of the Ninth U.S. Circuit Court of Appeals. Meanwhile, a New York Times op-ed argues that “[t]he vacancy crisis on the federal bench is not a partisan issue. Without enough judges, cases are delayed, lives are disrupted and rights are violated.”

Court Resources

• State court budget constraints are creating another judicial crisis, according to American Bar Association president Stephen N. Zack. “Our courts protect our freedom and our access to justice when we need it. But at the state court level, the courts are neglected, underfunded and backlogged.”  Zack added his voice to those of chief justices around the country who have highlighted shrinking court budgets in state of the judiciary addresses. In a hearing of the ABA’s Task Force on Preservation of the Justice System on Thursday, Chief Justices from across the county reported that funding cuts have created severe backlogs that compromise both civil and criminal cases.

State Judicial Selection

• In the first Wisconsin judicial election under the state’s new judicial public financing system, three of the four Supreme Court candidates have opted into the public funding program. The new campaign finance law provides $100,000 to candidates for the primary and $300,000 for the general election. While candidates may receive additional money if privately funded candidates or outside groups spend heavily, the sole candidate who did not accept public financing in this election, Marla Stephens, is trailing far behind her competitors in campaign receipts.  The conservative Wisconsin Right to Life group is challenging the law in federal court.  Meanwhile, the candidates discussed their views on public financing in a recent Wisconsin State Journal article.
• “Big money in judicial elections is a scandal,” according to Missouri Supreme Court Chief Justice William Ray Price Jr., who used his state of the judiciary address to defend the state’s merit selection plan. Better Courts for Missouri, a business-oriented nonprofit, is promoting a bill that would alter the make-up of the appellate judicial commission and require Senate confirmation of judicial nominees. In 2008, the group attempted to get an initiative on the ballot that would have replaced Missouri’s current selection system with direct elections for judges. Chief Justice Price also discussed the state’s need to invest in alternative court programs for nonviolent offenders as a way to decrease its prison population.

Judicial Independence

• Speaking publicly for the first time since the November 2010 election, former Justice Michael Streit – one of three Iowa Supreme Court justices voters removed last year over a unanimous court ruling that permitted same-sex marriage – said he believes the ouster campaign led by social conservatives distorted the state courts’ appeals process. Justice Streit defended the controversial decision and warned that, while none of the three targeted justices spoke out against the political attacks last fall, their defeat at the hands of special interest spending may convince other judges to campaign. According to Streit, judges are “going to have to tell people, I will be fair and impartial, but please, I need $100,000.”

Judicial Misconduct

• The criminal trial of former Luzerne County judge Mark Ciavarella began last week. Federal prosecutors accused Ciavarella of soliciting kickbacks from privately-run detention facilities in return for sending juvenile offenders to the jails. The so-called “cash for kids” scandal rocked the Pennsylvania judiciary last year, and former judge Michael Conahan has already pled guilty to a single count of racketeering conspiracy. Contending that he did not break the law, Judge Ciavarella opted to take his case to trial.

Miscellaneous

• Prosecutors in five Washington counties believe the state Supreme Court’s pro-tem appointment of former Justice Richard Sanders – who narrowly lost his bid for re-election in November – is unconstitutional. The high court extended Justice Sanders’ term for an additional two months, which is allowed “when necessary for the prompt and orderly administration of justice.” The high court unanimously rejected the prosecutors’ requests, while Justice Sanders stated he believes the issue stems from his tendency to issue pro-defense rulings.

Tags: Democracy, Fair Courts, Independence & Accountability, State Judicial Elections