This Week in Fair Courts

February 28, 2011

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.