This Week in Fair Courts

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.