The Week in Fair Courts

March 14, 2011

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.