Brennan Center for Justice

JUDICIAL SELECTION

State Supreme Court Issues Ruling in Dobson v. Arizona
On September 13^th, the Arizona Supreme Court struck down a new law that would have changed the nominating process for appellate judges, reports The Republic. Under the Arizona Constitution, an independent Commission must nominate at least three candidates for each appellate court vacancy. House Bill 2600, which was passed in April 2013, would have increased the minimum number of candidates to five, unless two-thirds of the Commission voted to submit fewer than five names. Four members of the Commission challenged the new law in Dobson v. Arizona, a petition before the Supreme Court which was filed in July. In siding with the Commissioners, the Supreme Court ruled that the law violated the state Constitution because it would create “a fundamental change in the balance of power between a voter-approved nominating commission and the governor.” In the opinion, Chief Justice Scott Bales wrote, “By increasing the number of nominees the Commission must submit, H.B. 2600 simultaneously increases the governor's discretion and narrows the commissioners' constitutionally granted discretion to nominate no more than the three candidates whom they determine best meet the constitutionally mandated selection criteria.” According to state law, only the Arizona voters may amend the Constitution, but a similar proposed amendment was already rejected by voters in 2012. Justice Bales went on to say, “Even if the change were ‘merely procedural,’ the Legislature has no authority to statutorily mandate procedures inconsistent with Arizona's Constitution.” The Brennan Center and Justice at Stake also filed an amicus brief in support of the constitutional challenge, arguing that “the enactment of legislation increasing the governor’s influence over the makeup of the judiciary risks violating fundamental separation of powers precepts.”
Sources: Bob Christie, Arizona Supreme Court rules new law changing judicial nomination process is unconstitutional, The Republic, September 13, 2013; Matt Menendez, Dobson v. Arizona (Amicus Brief), Brennan Center for Justice, August 7, 2013; Opinion of the Supreme Court of Arizona, Dobson v. Arizona, September 13, 2013.

JUDICIAL VACANCIES

Senate Judiciary Subcommittee Holds Hearing on Judgeship Act
The Senate Judiciary Subcommittee on Bankruptcy and the Courts held a hearing last week to discuss the Federal Judgeship Act of 2013, according to Legal Newsline. The bill would add 91 new judgeships to two federal circuits and 32 federal districts. Senator Chris Coons (D-DE), a co-sponsor of the bill, told the committee, “Congress has left the judicial staffing of our federal courts essentially unchanged for 23 years, despite rapidly growing caseloads. This bill would provide much-needed relief to our overburdened courts, ensuring that they are better prepared to administer justice quickly and efficiently.” The Brennan Center also submitted written testimony urging lawmakers to pass the bill. The Brennan Center wrote: “The growing workload in district courts around the country negatively impacts judges’ ability to effectively dispense justice, particularly in complex and resource-intensive civil cases, where litigants do not enjoy the same ‘speedy trial’ rights as criminal defendants. For example, the median time for civil cases to go from filing to trial has increased by more than 70 percent since 1992, from 15 months to more than two years (25.7 months).”
Sources: Jessica M. Karmasek, Senate panel holds hearing on bill to create new federal judgeships, Legal Newsline Legal Journal, September 10, 2013; Alicia Bannon, Testimony on Federal Judgeship Act of 2013, Brennan Center, September 10, 2013.

INDEPENDENT JUDICIARY

Michigan State Bar Seeks Greater Transparency in Judicial Races
The State Bar of Michigan wrote a letter to Secretary of State Ruth Johnson last week asking her to mandate disclosure of spending on issue advocacy advertisements in state judicial races. Johnson’s predecessor previously ruled that issue advocacy advertisements are not expenditures under the Michigan Campaign Finance Act, reports the State Bar. As a result, organizations have been able to run political attack ads – that do not directly endorse a candidate – without having to disclose donors, including in judicial races. The website MLive.com says, “Rich Robinson, head of the independent Michigan Campaign Finance Network, has been warning the public about the growing influence of issue ads for several years. In his recent dissection of the 2012 election cycle, he called the latest Michigan Supreme Court race ‘the most expensive and least transparent in history.’” Bruce Courtade, president of the State Bar, warned about the harmful impact of this lack of transparency on the courts: “Dark money prevents the public from knowing who donated to the campaigns of the judges before whom we appear. . . Dark money prevents Michigan judges from knowing when they should step aside from hearing cases because of conflicts of interest. Most damning of all, dark money undermines public confidence in our courts and our justice system.”
Sources: State Bar To SOS: Update Campaign Finance Act Interpretation, Cover Third Party Issue Ads in Judicial Campaigns, State Bar of Michigan, September 12, 2013; Letter to Secretary of State Ruth Johnson, State Bar of Michigan, September 11, 2013; Jonathan Oosting, State Bar calls on Michigan Secretary of State Ruth Johnson to ban 'secret funding' in judicial elections, MLive.com, September 12, 2013; Descending into Dark Money, Michigan Campaign Finance Network, June 2013.

DIVERSITY

Georgia Judge Argues for Increased Diversity on Bench
Retiring Superior Court Judge John Allen recently wrote a memo to Governor Nathan Deal of Georgia asking him to consider race and gender when making future appointments to the court. Judge Allen is the only black judge in his local circuit, writes Chuck Williams of the Ledger-Enquirer. When he retires on October 31^st, the remaining five judges will all be white males. “Unquestionably, judges are influenced in their notions of justice by their unique life experiences,” Judge Allen wrote in the memo. “It would be a travesty to the population served if their justice is reflected only in terms of the 'white male' experience.” Pete Robinson, co-chairman of the commission that selects qualified candidates for vacant judgeships in Georgia, responded to the memo by saying, “The Judicial Nominating Commission will listen to those sentiments because diversity is a consideration we take into account when making recommendations to the governor for qualified members of the judiciary.”
Sources: Judge John Allen, Letter to Governor Nathan Deal Re: Appointments to Superior Courts – Chattahoochee County, September 5, 2013; Chuck Williams, Judge Allen asks Gov. Deal to consider race and gender when appointing two new judges, Ledger-Enquirer, September 14, 2013.