Fair Courts E-lert: Lawsuit Filed to Compel Hearing for SCOTUS Nominee; Study Measures Judicial Impact of Legal Scholars

September 2, 2016


NM Attorney Files Suit to Compel SCOTUS Nomination Hearing

Steve Michel, an attorney from New Mexico, has filed a suit in the U.S. District Court for the District of Columbia to compel Senate leaders to take action on Judge Merrick Garland’s nomination to the U.S. Supreme Court, writes Mike DeBonis for The Washington Post. According to DeBonis, Michel has argued that the case “has created a constitutional crisis that threatens the balance and separation of power among our three branches of government.” Michel argues that under Article II of the Constitution, “the Senate is…compelled to provide…advice and consent by holding a vote on the nominee.” Michel is not the first individual to attempt to use the courts to compel a hearing for Judge Garland, although previous suits were dismissed for lack of standing. DeBonis explains that Michel “offers a more robust argument for his standing to bring his case” by arguing that “he is among those who have ‘had the effectiveness of their vote for United States senators diminished because those senators have been deprived of their ability to vote in the Senate with respect to the nomination of Judge Garland.’”

New Study Measures Judicial Impact of Legal Scholars

A new study by University of St. Thomas law school researchers has tried to measure the judicial impact of legal scholars by measuring how often their law journal articles are cited in court opinions. In a blog post for The Wall Street Journal, Jacob Gershman writes that the researchers “scoured decisions handed down by the Supreme Court, federal appeals courts and state high courts between 2005 and 2014,” restricting “their search to a roster of around 700 professors that a previous study identified as having 250 or more citations in legal literature over a recent five-year period.” According to Gershman, “[t]he top three all come from Harvard law school: constitutional scholars Richard Fallon and Cass Sunstein and administrative law professor John Manning. UCLA professor and Washington Post legal blogger Eugene Volokh and Yale professor Akhil Amar follow right below them.” Gershman explains the paper finds that “there is significant crossover between their impact in the legal literature and their impact in judicial cases.” He notes, however, that “the professors on top are pretty much all men” with “not a single female professor appear[ing] in the top 25.”


6th Circuit Finds KY Judicial Conduct Codes Unconstitutional

The U.S. Court of Appeals for the 6th Circuit ruled that certain Kentucky judicial conduct codes violated the First Amendment, “open[ing] the way for some partisan activities for judicial candidates, with some strict limits still intact,” writes Bruce Schreiner for the Associated Press. According to Christopher Wiest, who represented the plaintiffs, as a result of the ruling, “judicial candidates could declare themselves as Republicans or Democrats and speak for or against political organizations or candidates. They could also take broad stands on issues without stating how they would rule in particular cases.” Writing for the 6th Circuit panel, Judge Sutton wrote “[i]f the commission wishes to impose mandatory sanctions on the speech of judicial candidates for office, as opposed to non-enforceable guidelines or best practices, it must satisfy the rigors of the First Amendment in doing so.” Wiest said he thinks the decision “will cause more of an issues-based election in judicial races.” Stephen Wolnitzek, the Chairman of Kentucky’s Judicial Conduct Commission, said judges risked being asked to recuse themselves based on policy stands they made during the campaign. “You tell people this so you get elected, knowing that you'll never be able to rule because you'll have to recuse in the case,” he said, which to him is a “bait and switch.”

New Study Examines Impact of Judicial Elections on Legitimacy

A new study by Benjamin Woodson of University of Missouri-Kansas City considers the impact of judicial elections on judicial legitimacy, and finds that the effect depends on the context of a given campaign. In a blog for the London School of Economics US Centre, Woodson explains that while judicial elections often increase courts’ legitimacy in the public’s eye, high spending and attack ads may counteract or even overpower this effect. He finds that “[i]n states where extensive campaigns by judges are rare, the positive effect caused by electoral accountability outweighs the negative effect caused by campaigning” but that “[i]n states where extensive judicial campaigns are common, the negative effect of campaigning is larger than the positive effect caused by electoral accountability.” He also finds that “at low levels of election activity the amount of perceived legitimacy of… elected courts is higher” than that for appointive systems, but that the opposite is true for high levels of election activity. His results lead him to conclude that “elections can but usually will not undermine the legitimacy of state Supreme Courts” and that it is important to consider “[n]orms governing the amount of campaigning” when assessing a state’s selection system.