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Independence & Accountability

A Step Forward for New York Courts

By Maria da Silva – 06/28/11

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.

Tags: Democracy, Fair Courts, Independence & Accountability

Supreme Court Leaves State Judicial Conduct Rules Intact

By Maria da Silva – 05/04/11

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. Massey concluded 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.

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

The Week in Fair Courts

By Maria da Silva – 03/28/11

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.

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.

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

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