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Independence & Accountability
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
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
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
By Maria da Silva – 02/10/11
The Brennan Center believes that clear and comprehensive disqualification rules are essential to a fair and impartial judiciary. As judicial elections over the past decade have morphed into the realm of high cost negative politicking, numerous public opinion polls report that Americans are concerned about judicial neutrality—three in four believe that campaign spending can influence courtroom decisions and a similar majority overwhelmingly agree that a challenged judge should not have the final say on his or her own disqualification.
Reforming disqualification practices in state courts is one way to reassure the public that judges’ decisions are not held captive by partisan political concerns nor—in the 39 states that elect judges—judicial campaign spending. To that end, the Brennan Center advocates for clear and comprehensive recusal rules that protect due process and promote public confidence in the judiciary.
In 2009 the U.S. Supreme Court issued a landmark decision in Caperton v. Massey. Recognizing that there was a “serious, objective risk of actual bias” when a judge refused to step aside from a case involving his principal benefactor, the Supreme Court disqualified the judge. At the same time, the Court noted that states would be well served to adopt recusal rules “more rigorous” than the Constitution requires.
Meanwhile, the American Bar Association (ABA) then-president H. Thomas Wells Jr. applauded the ruling and announced that the ABA would develop “a series of guidelines for courts to assess whether contributions to judges’ campaigns implicate the due process rights of parties appearing before them. This evaluative process is one way to restore the public confidence in our courts so critical to preserving our government of laws.” The ABA convened a Standing Committee on Judicial Independence, which recently submitted a Resolution and Report on judicial disqualification to the ABA House of Delegates for full consideration. Today, the Brennan Center and Justice at Stake sent a joint letter to the ABA, expressing support for ABA efforts to energize state court recusal reform.
The letter identifies two fundamental principles that the ABA should articulate as minimum standards for state recusal reform efforts. First, states must ensure objective decisions on disqualification requests by implementing a process of neutral review. Secondly, in recognition of the increasing significance—and danger—of money in judicial elections, states must also outline a policy for campaign finance-induced recusal, including disclosure rules.
Observers predicted that the Caperton ruling would affect state judicial elections nationwide. While many states have considered recusal reform, only a handful have implemented meaningful policy changes. The Brennan Center examined state action over the past two years and analyzed current judicial disqualification rules. In Promoting Fair Courts through Recusal, the Brennan Center outlines positive, realistic, and easily implemented steps states can take to embrace meaningful recusal standards.
To begin with, 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, states should provide for prompt, meaningful review of the denial. States must create disqualification rules that ensure the challenged justice does not have the sole, unreviewable discretion to decide a recusal request. The report identifies the procedure for handling recusal requests in Georgia’s Supreme Court as a model for ensuring a challenged justice is not the final arbiter of a motion for his or her disqualification, and urges states to take care to require transparent decision-making on recusal requests so that meaningful review is possible.
The Brennan Center has consistently argued for comprehensive disclosure requirements. Here, we again stress that states should acknowledge that judges’ impartiality may reasonably be questioned—and disqualification may be necessary—because of judicial campaign spending by litigants or their attorneys. An ideal disqualification rule should approach campaign finance-induced disqualification with a big-picture perspective and address not only the overall amount a party (or counsel) spent on contributions and expenditures, but also additional factors that bear on perceptions of a judge’s impartiality, including the relative size of a party’s contributions in comparison to the total amount of money raised by a judge and his or her opponent(s); the ratio of the party’s spending to the total amount spent in the election; the apparent effect of the party’s spending on the results of the election; and whether the party’s spending occurred while the litigation in question was pending or imminent.
As special interest spending in judicial elections escalates, disqualification guidelines and related necessary disclosure rules are essential to protect fair and impartial courts. Recusal does not threaten the independence of the judicial branch, rather clear and comprehensive rules enhance the judiciary by creating transparency and shoring up confidence in a cornerstone of American democracy—the judiciary.
Tags: Democracy, Fair Courts, Independence & Accountability, Disclosure
By Maria da Silva – 02/04/11
Here is the Brennan Center’s weekly round up of Fair Courts news, where we summarize stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary.
Diversity on the Bench
- Several state Supreme Courts have made strides in terms of judicial diversity, according to the American Judicature Society: in 2011, New Hampshire, Ohio, and Virginia have female Chief Justices for the first time, and three other states—California, Massachusetts, and Nevada—have minority Chief Justices for the first time.
- President Obama nominated former Clinton administration lawyer J. Paul Oetken for a judgeship in Manhattan. If confirmed, Oetken would become the first openly gay judge on the federal bench. In recommending Oetken for nomination, Senator Charles Schumer stated he was “shocked to learn there were no openly gay male judges on the entire federal bench.”
Federal Judicial Selection
- White House Counsel Robert Bauer stated this week that the White House will push Congress to confirm more judges. There are 101 vacancies on the district and circuit courts. On Thursday the Senate Judiciary Committee sent 11 holdover nominees from the last Congress to the floor as a test of the informal bipartisan agreement to facilitate quicker confirmation of nominees.
State Judicial Selection
- In response to Republican state Sen. Mike Bell’s proposal to replace the current merit selection system for Tennessee’s high court judges with contested elections, Tennessee Supreme Court Justice Gary Wade said, “A great judge is like a referee in a football game. To have one side or the other cheering for the referee is a little bit unseemly to me.” While Bell criticizes his opponents for “trying to protect the system that they control right now,” an editorial in the Tennessean contends that the current merit selection system works well and “instills trust” in the judiciary.
- Former Michigan Supreme Court Justice Elizabeth Weaver continues to push for reform, saying that Michigan “need[s] transparency. Not a secret club of seven justices from the Detroit-Lansing beltway joining together to promote agendas of partisan or special interests.” Among other reforms, Weaver has proposed electing justices by district to generate geographic diversity and instituting public financing for judicial campaigns.
Judicial Ethics
- A decision regarding Justice Michael J. Gableman’s dishonesty in a 2008 campaign ad sparked debate at a recent forum between Wisconsin Supreme Court candidates. Three candidates identified the court’s deadlocked decision as the one they most disagreed with, while incumbent Justice David Prosser defended his position that Gableman’s ad was protected by the First Amendment. This case is also responsible for substantial tensions between the sitting justices. Meanwhile, a Wisconsin State Journal editorial argues the state should switch to a merit selection system to improve public confidence in the high court.
- Kentucky’s Judicial Conduct Commission charged Circuit Judge Daniel Ballou with two counts of ethics violations for donating to Sen. John McCain’s presidential campaign in 2008 and for sending an e-mail in 2010 about Rand Paul’s position on the 2nd Amendment. Although he denied the allegations of impropriety, the Commission ruled that Ballou’s actions run afoul of the state’s judicial ethical rules.
- The Nevada Supreme Court affirmed a 2008 decision to remove Clark County District Judge Elizabeth Halverson from the bench. Judge Halverson will be permanently barred from the bench now that the Supreme Court has upheld the Commission’s finding that she behaved improperly during hearings, with jurors, and with court personnel.
Miscellaneous
- Last week’s e-lert noted that amid concerns over budget restrictions, numerous state Supreme Court Chief Justices have used their state of the judiciary addresses to tout new technologies as a way to increase court efficiency. Accordingly, legislators across the country are advancing bills related to electronic court filings. An article on the Court Technology blog discusses bills pending in Arizona, Oregon, South Dakota, Virginia and Wyoming.
Previous editions of the Brennan Center Fair Courts E-lert are available on our website.
Tags: Democracy, Fair Courts, Diversity on the Bench, Independence & Accountability, Judicial Advertising, State Judicial Elections
By Maria da Silva – 01/28/11
The Brennan Center Fair Courts E-lert summarizes news stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary.
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Fair Courts E-lert
January 28, 2010
State Judicial Selection
1. The Iowa judicial nominating commission’s interviews of state Supreme Court candidates this week were open to the public for the first time ever. One candidate, Sixth District Chief Justice Patrick Grady, expressed support for the commission’s move, stating that, especially in light of November’s ouster campaign, judges “can’t afford to be a mystery any more . . . [because] when people don’t know how you operate, they get suspicious. And we all know what can happen then.” After deliberation, the commission forwarded nine finalists to Governor Terry Branstad, including five judges, three lawyers and a law professor. Branstad told The Des Moines Register that while he will inquire about candidates’ general philosophies, he will not ask for their views about particular cases, such as the unanimous decision legalizing same-sex marriage that spurred voters to oust three justices in November’s retention election.
Mike Wiser, Panel Interviews 7 For Iowa Supreme Court, The Quad-City Times, January 24, 2011; Grant Schulte, Public Selection Of Justices Begins; Process Continues Today, The Des Moines Register, January 25, 2011; Grant Schulte, Branstad: No Judicial Litmus Test, The Des Moines Register, January 23, 2011; Grant Schulte and Jens Manuel Krogstad, 5 judges, 3 lawyers among 9 Iowa Supreme Court finalists, January 28, 2011.
2. “Within our system, judges are not supposed to represent specific constituencies. They are supposed to answer to the law and to the Constitution. They are not supposed to take into consideration any political concerns.” Discussing the dangers of special interest influence in judicial elections in a USA Todayarticle, Brennan Center for Justice counsel Adam Skaggs noted that state legislatures, voters, and court scholars across the country have been debating methods of judicial selection, and in particular, how to preserve judicial independence in light of increased special interest influence in judicial elections. Jim Bopp, an attorney for the James Madison Center for Free Speech, argued that judicial elections are the best way for voters to hold “activist judges” accountable.
Clint Brewer and Grant Schulte, Influence of special interests felt in court, USA TODAY, January 27, 2011.
3. Noting that the Pennsylvania Bar Association will hold public hearings to examine judicial selection and the financing of judicial campaigns, an article in the Pittsburgh Tribune Review suggests that the state legislature may soon consider moving from contested judicial elections to a merit selection system. Pennsylvania Superior, Commonwealth and Supreme courts judges are currently chosen in contested elections, and while switching to appointed judges would require a constitutional amendment, according to Shira Goodman, deputy director for Pennsylvanians for Modern Courts, “the mood in Pennsylvania and the focus on the judiciary show the public is very concerned.”
Bobby Kerlik, Supporters Of Appointed Appellate Judges Like State's Mood Swing, Pittsburgh Tribune-Review, January 24, 2011.
Federal Judicial Selection
4. Roslyn O. Silver, the federal district judge who succeeded Judge Roll upon his death, has declared a judicial emergency in Arizona. According to the Arizona Republic, federal felony caseloads have soared to a record high in the state, even as judicial appointments have slowed due to partisan politics in Washington. Chief Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals told the Wall Street Journalhe hoped Congress would take action in response to the emergency declaration and Senator Charles Schumer informed Politico that he isworking with Judiciary Committee Chairman Patrick Leahy and Senator Lamar Alexander to foster “a really strong and bipartisan effort to get many more judges approved.”
Michael Kiefer, Judge John Roll's Death Prompts Judicial Emergency, The Arizona Republic, January 26, 2011; John R. Emshwiller And Alexandra Berzon, Decree In Arizona Eases Trial Limit, The Wall Street Journal, January 26, 2011; Mike Allen, Chuck Schumer Warns Of 'Crisis' In Judiciary, Politico, January 23, 2011.
Diversity on the Bench
5. “I would like to believe that because of my background and my life experiences, I bring sensitivity to those who may not have been born into a life of privilege, a sensitivity to those whose life circumstances make it difficult for them to conform with all of society's expectations.” Speaking about her nontraditional upbringing and her position—if confirmed—as the first openly gay member of the Hawaii Supreme Court, state judge Sabrina Shizue McKenna also stated that she hopes her presence on the court will give “hope to people who feel that they cannot succeed” because they do not fall within traditional demographics. According to the Honolulu Star-Advertiser, Governor Neil Abercrombie called McKenna’s appointment earlier this week—his first judicial appointment since taking office— “the most important decision” in his career.
Ken Kobayashi, McKenna is named to state's high court, Honolulu Star-Advertiser, Jan 26, 2011.
Miscellaneous
6. Compared to the tension between the executive and judicial branches on display at the 2010 state of the union, this year’s address was relatively uneventful. Leading up to the address, however, numerous outlets speculated about possible new conflicts in light of Justice Scalia’s speaking engagement at the House Tea Party Caucus and Justice Thomas’ revision of his financial disclosure filings to reflect income his wife received from the Heritage Foundation. An NPRreport concluded that “on Monday night there appeared to be more fizzle than sizzle to the charge of unseemly partisanship” by Justice Alito. Concern remains, however, that interactions between the judicial, executive, and legislative branches have become more politicized. An article in USA Todayexamined the issue and concluded that increased politicization “could lead to public doubts about the ability of judges to be impartial and above politics, particularly when highly charged disputes over health care, gay rights and immigration are moving through the judiciary.”
Nina Totenbergm, Justice Scalia Speaks To Tea Party Caucus, Democrats, NPR, January 25, 2011; Thomas adds wife's employment to disclosure report, The Associated Press, January 24, 2011; Joan Biskupic,Tensions rise between Supreme Court, politicians, USA TODAY, January 23, 2011.
7. “There is no moratorium on crime, drug addiction, alcoholism, domestic abuse, or the need for access to justice. If anything, our current economic woes have increased these problems.” So stated South Dakota Supreme Court Chief Justice David Gilbertson in his annual address to the state legislature. Chief Justices across the county similarly offered mixed messages of efficiency and progress amidst budgetary pressures in recent State of the Judiciary addresses, which are available online through The National Center for State Courts.
Chief Justice David Gilbertson, State of The Judiciary,January 12, 2011; Chet Brokaw, South Dakota chief justice cautions against further cuts in court system budget, Associated Press, January 12, 2011.
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Previous editions of the Brennan Center Fair Courts E-lert are available on the Brennan Center website here. If you have comments regarding the E-lert, any articles you'd like to see included, or know of anyone who would like to receive this service, contact Maria da Silva.
Tags: Democracy, Fair Courts, Diversity on the Bench, Independence & Accountability, Judicial Advertising, State Judicial Elections
By Adam Skaggs – 05/12/10
Yesterday, for the second time in a week, the Committee on House Administration held a hearing on the DISCLOSE Act — DISCLOSE stands for "Democracy Is Strengthened by Casting Light On Spending in Elections." The Act responds to the U.S. Supreme Court’s decision in Citizens United v. FEC, which struck down the longstanding ban on corporate expenditures in federal elections. According to President Obama, it would “establish the toughest ever disclosure requirements for election-related spending . . . so the American people can follow the money and see clearly which special interests are . . . trying to buy representation in our government." Obama argues that we need tough disclosure rules because we are “facing . . . no less than a potential corporate takeover of our elections.”
The DISCLOSE Act would bring much needed transparency to the financing of federal elections, and Congress should adopt it without delay. Increasing the information available to the public will help citizens make informed choices when they vote, and will ward off the potential for corruption that flows inexorably from hidden money.
But the DISCLOSE Act applies only to federal elections. Because undisclosed special interest spending poses the same threat to state and local races, state policy makers also need to act. One priority area should be state judicial elections, where the need for strict disclosure rules is particularly acute.
Why is disclosure in judicial elections so important? Because, as a 2004 cover story in Business Week put it, “special interests are increasingly turning to the courts to advance goals they can’t win legislatively. . . . Increasingly, they have come to view the judiciary as something to be gamed and captured — just like Congress or the State House.” An Ohio union official said it more succinctly: “We figured out a long time ago that it’s easier to elect seven judges than to elect one hundred and thirty-two legislators.”
With special interests spending ever-increasing dollars to capture state judiciaries, robust disclosure rules are needed to protect fair and impartial courts. Legislators in the 39 states that elect judges should pass laws that require disclosure of who’s paying for judicial campaign ads.
It’s particularly important to prevent special interests from disguising their spending by funneling money through innocuous sounding groups like “Citizens for Better Courts.” That happens all too often. In a 2004 election for a seat on West Virginia’s high court, for example, the CEO of Massey Coal Co. — the company that operates the Upper Big Branch Mine where 29 miners were killed last month — spent $3 million to replace an incumbent judge with a more sympathetic one. The CEO channeled about $2.5 million through a group called “And for the Sake of the Kids.” Voters might well have thought a group with that name was primarily concerned with, say, fighting child abuse or education — not coal. Regardless, the spending worked: the CEO’s preferred judge won the race, and promptly cast the tie-breaking vote to throw out a $50 million damages award against Massey.
State legislators should adopt measures, like those in the DISCLOSE Act, that will help voters understand when a group like “For the Sake of the Kids” is really “For the Sake of the Coal Company.” That would shed welcome sunlight on the judicial campaign trail. But state courts need not — and should not — wait for the politicians in the legislature to act. Judges themselves can pass a number of rules — now — that would increase disclosure and promote fair courts after the campaigning is over, when the victorious candidates take their seats on the bench.
In particular, state supreme courts should adopt rules that require judges and litigants to disclose campaign spending, and that disqualify judges from hearing the cases of their biggest campaign supporters. The need for such rules was the ultimate lesson of the 2004 West Virginia race. In the Massey litigation, the U.S. Supreme Court ultimately ordered the judge who cast the decisive vote for Massey off the case because the CEO’s extraordinary campaign spending on his behalf created such a high probability of bias.
To ensure that every litigant appearing in court faces a level playing field — and no judge’s supporter has a “home court advantage” — state courts should pass three disclosure rules.
First, judges should be required to disclose, on the record or in writing, any facts that might affect whether they can be fully impartial. Even if a judge thinks he or she need not step aside in a given case, requiring the judge to list all relevant facts — particularly those about campaign conduct and fundraising — will ensure that litigants and the public are fully informed about potential influences on judicial decision making.
Second, at the outset of a proceeding, parties and their lawyers should be required to file an affidavit disclosing any contributions or independent expenditures they made in favor of or against the presiding judge. Such a rule would ensure that every relevant fact is on the record before disqualification decisions are made.
Finally, when judges are asked to recuse themselves because of campaign finance issues, they should provide written explanations of their decisions. Today, all too often, judges simply deny recusal requests without giving any reasons. Requiring judges to grapple with recusal requests in writing — as the Michigan Supreme Court recently did in adopting a new recusal procedure — guarantees that the public (and litigants) understand the relevant facts; ensures transparent and reasoned decision making; and makes meaningful review of recusal decisions possible.
State legislatures should adopt broad disclosure rules to ensure that all campaign spending — including in judicial contests — takes place in the light of day. But state courts should also act, by adopting narrower, more focused disclosure rules that come into play only when the same parties who bankroll judges’ campaigns appear in their courtrooms. The rules proposed above will protect every party’s due process right to a fair trial before a neutral, impartial decision maker. In today’s world of money-soaked judicial elections, that is a must.
Tags: Democracy, Fair Courts, Independence & Accountability, Judicial Advertising, State Judicial Elections
By Adam Skaggs – 04/03/10
Originally published in The New Republic.
Illinois is home to the nation’s costliest judicial election ever: the 2004 contest between Lloyd Karmeier and Gordon Maag. The two candidates in Illinois's fifth judicial district together raised almost $9.4 million, nearly double the previous national record. It topped the money raised in 18 of 34 U.S. Senate races decided that year. Even Karmeier, the winner of the race, described the money poured into the campaign as “obscene.”
The eye-popping fundraising resulted from a parade of special interests on both sides of the “tort wars." The fifth district had been known for large damage awards against corporate interests, and the election’s winner was expected to play a crucial role on a closely divided Illinois supreme court. Trial lawyers funneled millions to Maag, while Karmeier got buckets of cash from the U.S. Chamber of Commerce. Karmeier also got a boost from a company with a very real interest in the race's outcome: State Farm Insurance Company, which happened to be appealing a damage award of more than $450 million. Karmeier got $350,000 in contributions from employees, lawyers, and others directly involved with State Farm and another $1 million from larger groups affiliated with the company. After he won the election, Karmeier cast the deciding vote that saved State Farm roughly a half-billion dollars.
The Illinois election wasn’t an anomaly. In the last decade, state judicial elections across the country have evolved from quiet, civil contests into extravagant affairs with exorbitant spending, mud-slinging, and bitter personal attacks. Special interests in particular have helped engineer many of these races, pouring money into campaign coffers and negative TV ads. For instance, in a 2006 race in Washington—the most expensive judicial election that state had ever seen—every TV spot was paid for by a special interest group. As an Ohio AFL-CIO official put it, “We figured out a long time ago that it’s easier to elect seven judges than to elect one hundred and thirty-two legislators.”
And now, the problem is likely to get a lot worse. Much has been made about how Citizens United v. Federal Election Commission (FEC), the recent Supreme Court decision that lifted the ban on corporate spending in elections, will allow special interests to dump money into presidential and congressional races as never before. But the decision was handed down, in the words of Justice John Paul Stevens, just “when concerns about the conduct of judicial elections have reached a fever pitch.” Indeed, thanks to Citizens United, the likely explosion of special-interest spending in this year's judicial races threatens to further erode the judiciary's independence.
This year, candidates in 18 states will face off to fill 34 supreme court seats. More than 30 other high court judges will sit for unopposed “retention” elections, in which voters will vote “yes or no” to keep them on the bench. And, because of Citizens United, many legal observers are expecting that these elections will be special-interest spending frenzies. Retired Supreme Court Justice Sandra Day O'Connor said at a conference at Georgetown University Law Center in January that “Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.”
Read the rest of the article at TNR online.
Tags: Democracy, Campaign Finance Reform, Fair Courts, Independence & Accountability, Judicial Advertising, State Judicial Elections
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