Fair Courts E-lert: Arizona’s Governor Signs Law Changing Merit Selection

April 17, 2013
FEDERAL JUDICIARY

Nomination of Sri Srinivasan to the DC Circuit
President Obama’s nominee to the Court of Appeals for the D.C. Court, Sri Srinivasan, had his Senate confirmation hearing last week. Several news outlets speculated that Republicans may support his nomination; according to the Wall Street Journal, “Mr. Srinivasan's responses appeared to please the handful of Republicans at the hearing. Sen. Orrin Hatch (R., Utah) told Mr. Srinivasan that he was likely to support his nomination and said, ‘I think you'll make a great circuit court of appeals judge.’” A piece in the New Yorker discussed the broader implications of his nomination: “Technically, Sri Srinivasan is just a candidate for the United States Court of Appeals for the D.C. Circuit, but few are misled. The stakes in this nomination are clear: if Srinivasan passes this test and wins confirmation, he’ll be on the Supreme Court before President Obama’s term ends.” According to NBC News, “So far Obama hasn’t gotten to appoint anyone to the D.C. circuit appeals court which is now divided between four judges appointed by Republican presidents and three judges appointed by Bill Clinton. (There are also six senior judges with a reduced workload who take part in some cases.) The court has four vacancies and Senate Majority Leader Harry Reid said Tuesday that Obama will soon be sending the Senate three more nominees to the court. Last month, Republicans blocked a confirmation vote on Obama’s nominee Caitlin Halligan. If they block a vote on Srinivasan, it could spark a historic battle over changing Senate rules – the so-called 'nuclear option' – to ban filibusters of judicial nominees. A rules change would allow confirmation of a nominee by 51 votes, rather than the 60 which the filibuster in effect requires.”
Sources: Evan Perez, GOP Senator Likely to Back Key Judicial Nominee, Wall Street Journal, April 10, 2013; Jeffrey Toobin, The Supreme Court Nominee-In-Waiting, New Yorker, April 9, 2013; Tom Curry, Battle Over Judicial Appointments Approaches Crucial Point, NBC News, April 11, 2013.

Senator Chuck Grassley Introduces Bill to Shrink the D.C. Circuit
Senator Chuck Grassley (R-IA) has introduced a bill that would reduce the size of the D.C. Circuit from 11 judges to 8 judges. According to Legal Newsline, “On Wednesday, during a confirmation hearing on the nomination of Sri Srinivasan to the U.S. Court of Appeals for the District of Columbia Circuit, Grassley announced he is introducing legislation that would reduce the number of judgeships on the D.C. Circuit from 11 to eight. Grassley, R-Iowa and ranking member of the Senate Judiciary Committee, said the legislation would reduce the number of seats on the D.C. Circuit, but also add a seat to the Second and Eleventh circuits.” According to the same article, “Sen. Patrick Leahy, D-Vermont and chairman of the judiciary committee, took issue with Grassley’s proposal, pointing to the subject matter of the D.C. Circuit’s cases. ‘They are often complex cases, so raw caseload data does not fairly reflect the work of the judges on this court,’ he said. Indeed, the D.C. Circuit is considered by some to be the second most important court in the country, after the U.S. Supreme Court.”
Source: Jessica M. Karmasek, Democrats, Others React To Grassley’s Proposed Legislation To Cut D.C. Circuit, Legal Newsline, April 12, 2013.

MERIT SELECTION

Arizona’s Governor Signs Law Changing Merit Selection
Arizona Governor Jan Brewer signed a bill last week that increases the number of judicial candidates to be forwarded to the governor by the state’s judicial selection commissions. According to the Verde Independent, “A 1974 voter-approved constitutional amendment sets up special panels to screen applicants. It says the governor must be given at least three names from which to choose, with a ban on all coming from the same party. HB 2600 directs the commission to send at least five names unless, by a two-thirds vote, the panel concludes there are not enough qualified applicants. Proponents say the governor, as an elected official, should have maximum flexibility. Foes contend that any legislative mandate for five names — even one that allows for fewer on a two-thirds vote — cannot trump the constitutional language. They have suggested the measure, which now goes to Gov. Jan Brewer, will likely be challenged in court.” According to another article from the Verde Independent, “Rep. Eddie Farnsworth, R-Gilbert, acknowledged that [constitutional language]. But he said the legislation meets that requirement with an escape clause: If the selection commissions determine there are not five qualified applicants, they are free to send just three names. That, however, requires a two-thirds vote of the panel. Any challenge ultimately will be settled by the Supreme Court. All five justices were selected through the current process, though three of them are Brewer appointees.” A similar measure was rejected by voters in last year’s election. The measure “would have required governors be given at least eight names. That measure, however, was rejected by voters by a margin of close to 3 to 1.”
Sources: Howard Fischer, Legislative update: April 9, 2013, Verde Independent, April 9, 2013; Howard Fischer, Law On Number Of Supreme Court Nominees May Be Challenged, Verde Independent, April 9, 2013.

ATTACKS ON THE JUDICIARY           

Wisconsin Looks to Block Justices from Voiding State Laws
Wisconsin has a bill that would limit the ability of trial court judges to enjoin state laws. According to the Milwaukee Journal-Sentinel, “With some of their major legislative achievements thwarted by the courts in the past two years, Wisconsin Republicans are advancing a bill that would limit the ability of circuit judges to block state laws for the long term.” The article continues, “Since 2011, circuit judges have blocked all or parts of laws backed by Republicans that required voters to show photo ID at the polls, limited collective bargaining for public employees and expanded the governor's power over administrative rules. Under a measure announced Wednesday, such injunctions would be automatically stayed as soon as they were appealed — meaning laws that were blocked would be put back in effect until a higher court issued a ruling.” According to one of the sponsors, quoted in the article, “Rep. David Craig (R-Big Bend), a chief sponsor of the measure, said the bill would provide stability. He noted that challenges to state laws are ultimately decided by higher courts in many instances. ‘We're trying to speed up the process,’ Craig said. ‘One judge elected by one extremely small fraction of the state . . . isn't going to have ultimate say-so over law.’” According to the Associated Press, “Under Craig's bill, an attorney could stay a trial judge's order blocking a state law from taking effect by filing an appeal to an appellate court or the state Supreme Court within 10 days. That automatic stay would remain in place until the appellate court or Supreme Court lifted it or disposed of the case through a final order. If an appellate court found the law invalid and lifted the stay, the losing side could reinstate it by asking the Supreme Court to take the case.”
Sources: Patrick Marley, Wisconsin GOP Lawmakers Want To Limit Impact Of Courts, Milwaukee Journal-Sentinel, April 10, 2013; Todd Richmond, GOP Bill Would Allow Attorneys To Nullify Wisconsin Judges' Decisions Voiding State Laws, Associated Press via The Republic, April 10, 2013.