Fair Courts E-lert: Supreme Court Justice Kennedy Says Senate Confirmation for Federal Judges Too Political

August 20, 2012
Judicial Elections

1.      The New York Times wrote an editorial advocating for the nomination, rather than the election, of judges. The editorial states, “Elections turn judges into politicians, and the need to raise money to finance ever more expensive campaigns makes the judiciary more vulnerable to improper influence by donors… State courts decide 95 percent of the country’s legal cases. They are damaged by money-soaked elections. The evidence mounts that top state judges should be picked and appointed through merit selection, not elected.” Montana Supreme Court Justice James Nelson also spoke to ThinkProgress about how politicking distracts judges from their jobs. He described instructing his clerks during his 2004 campaign that “here’s the deal, for the next ten months, I’m not going to be reading briefs. What you’re going to have to do is read the briefs and prepare a memo for me about what the case is all about. You’re going to be more involved in the opinion writing. I’m gonna go on like nothing has happened, but we’ve gotta — if I want to keep my job and you want to keep yours, this is how it is going to work. And that’s what happened, I became a full time politician for ten months.”

Judicial Elections and the Bottom Line, New York Times, August 19, 2012; Ian Millhiser, Montana Justice Explains How Judicial Elections Distract Judges From Their Jobs For Months At A Time, Think Progress, August 17, 2012.

2.      A new study found that judicial elections can impact judges’ sentencing decisions. According to the authors, “[there is] a 10% increase in sentence length from the start of a judge’s term to the election (or, for judges who ran opposed, to the filing deadline for running, several months earlier).” The authors conclude, “[we] cannot say whether social welfare would increase or decrease if judges were appointed … but we can quite definitively say that sentencing patterns would differ, and that the variation in sentencing solely due to political pressure would be diminished.”

Christopher Shea, Elections Shape Judicial Sentencing, Study Finds, Wall Street Journal, August 16, 2012; From the forthcoming Carlos Berdejó (Loyola Law School) and Noam Yuchtman (Haas School of Business, at Berkeley), Crime, Punishment, and Politics: An Analysis of Political Cycles in Criminal Sentencing, Review of Economics and Statistics.

Judicial Ethics

3.      The controversy over who will preside as the next chief justice of the Louisiana Supreme Court continues. The chief justice position is based on seniority, and the dispute centers on whether Justice Bernette Johnson, who first joined the Court as an appellate judge exclusively assigned to the Supreme Court under the terms of a voting rights consent decree, should have her years as an appellate judge counted towards her seniority. Governor Bobby Jindal, at the last minute, joined a motion supporting the state Supreme Court’s power to determine its next chief justice without the intervention of the federal court. The Governor’s memorandum stated, “The State of Louisiana, Office of the Governor, takes no position on who should become the next Chief Justice of the Louisiana Supreme Court, a Louisiana Constitutional issue which the Supreme Court of the State of Louisiana will decide. The position of the State of Louisiana, Office of the Governor, is, however, that deciding this Louisiana constitutional question is the sole province for the Louisiana Supreme Court.”

Jonathan Tilove, Gov. Bobby Jindal, At Last Minute, Enters Legal Battle Over Louisiana Supreme Court, New Orleans Times-Picayune, August 13, 2012; Jonathan Tilove, Attorney General Buddy Caldwell Says He's Not Taking Sides in Bernette Johnson Controversy, New Orleans Times-Picayune, August 9, 2012; (Background) Jarvis DeBerry, In Attempting to Block Justice Bernette Johnson, Louisiana Supreme Court Alters History, Times-Picayune, July 15, 2012.

Judicial Nominations

4.       At the opening session of the 9th U.S. Circuit Court of Appeals Judicial Conference, Justice Anthony Kennedy is quoted as saying that the judicial confirmation process is too political and is hurting the judiciary. He said, “This is bad for the legal system… It makes the judiciary look politicized when it is not, and it has to stop.” He went on to add, “there is a difference in a political function and a partisan function, and the current climate is one in which highly qualified eminent practitioners of the law simply do not want to subject themselves to this process.”

Supreme Court Justice Kennedy Says Senate Confirmation for Federal Judges Too Political, Washington Post (Associated Press), August 14, 2012.


5.      Both Idaho and Massachusetts have made steps towards allowing, or continuing to allow, the recording and broadcasting of court cases. In Idaho, the Supreme Court has announced that it will begin to stream oral arguments held in Boise through their website and Idaho Public Television's Idaho Legislature Live, which already broadcasts sessions of the state legislature. In Massachusetts, the Supreme Court ruled in favor of allowing the project “OpenCourt” to continue to stream court cases online. John Davidow, executive producer of OpenCourt and executive editor of new media at WBUR, said “There is a presumption that Massachusetts courts are open to media access and this ruling today clarified OpenCourt’s contention all along it should not be singled out as anything different from any other broadcast media.”

Jaimie Cremeans, Idaho Supreme Court to Stream Oral Arguments Live From Courtroom, Jurist, August 19, 2012; Justin Ellis, OpenCourt Wins Another Legal Challenge to Online Streaming in the Courtroom, Nieman Journalism Lab, August 14, 2012.