Brennan Center for Justice

1.      Coverage and debate have continued on the “Thurmond Rule,” an informal Senate tradition of not acting on judicial nominees in the last six months of a president’s term. According to Fire Dog Lake, this dispute “came to a head” last Monday when a nominee from Oklahoma with bipartisan support was put before the senate for a vote and “despite bipartisan support from the entire Democratic caucus and the New England three (Scott Brown, Susan Collins and Olympia Snowe), Bacharach mustered only 56 votes, four short of what was needed to break a filibuster. Mitch McConnell led the obstructionist crusade, effectively shutting down judicial confirmations in the Senate for the rest of the year.” Senator Lindsey Graham is also critical of the politicization of the confirmation process; he told the audience at the ABA Annual Meeting that “I'm really worried about how we're doing confirmations…They're turning into political events. I'm a conservative, and I'd like conservative judges on the federal bench, [but if President Barack Obama is re-elected in November, then] his nominees are entitled to be confirmed as long as they're qualified."The New Yorker’s Jeffrey Toobin has a different perspective on Obama’s judicial legacy, arguing that Obama has failed to nominate sufficient numbers of candidates. He writes, “There are currently seventy-four vacancies on the circuit and district courts, and Obama has nominees in place for thirty-two of these seats—in other words, less than half of them…. It is true that Obama has often tried to “pre-clear” judges with Senators before formally nominating them; unlike recent Republican Presidents, he has also agreed to allow the American Bar Association to vet nominees. Those processes slow things down. Still, by neglecting the judiciary, Obama has limited his own legacy as President.”

David Dayen, Judicial Nominations Likely Dead for the Year After Senate GOP Filibuster, Fire Dog Lake, July 31, 2012; James Podgers, Sen. Lindsey Graham: Qualifications of Judicial Nominees Should Count More Than Politics, ABA Journal, August 4, 2012; Jeffrey Toobin, Obama’s Unfinished Judicial Legacy, The New Yorker, July 31, 2012; Lisa Mascaro, Senate GOP blocks popular judicial nominee, halts confirmations, Los Angeles Times, July 30, 2012; Al Kamen, Judicial Wannabes’ Chances – Slim to None, Washington Post, August 1, 2012; Russell Wheeler, Obama’s Judicial Confirmations at the Election Year Summer Recess, and Prospects for the Fall, Brookings Institute – Paper, August 2, 2012.

2.      President Obama recently nominated Pamela Ki Mai Chen to serve as a district court judge in the Eastern District of New York.  Ms. Chen, who is currently the chief of the criminal division in the civil rights section of the EDNY’s U.S. Attorney’s Office,  would be the second female Chinese-American judge in U.S. history and among only a few openly gay women on the federal bench. Carl Tobias is cited in the article as saying “Chen is representative of the diversity that Schumer and Obama have pledged to bring to the New York federal judiciary.”

Jessica Dye, Openly Gay Brooklyn Prosecutor Nominated For Federal Bench, Thompson Reuters, August 2, 2012.

Judicial Retention

3.      A New York Times editorial this week focused on the selection and retention of judges in Florida. The Times argued that there are three moderate justices in Florida who are up for a retention election this year, which happens every six years following a judge’s initial appointment, and that a tea party based group is behind the effort to vote out these judges. The editorial concludes, “If the three justices lose their retention battle, it would give Mr. Scott three court vacancies to fill with his own judicial picks. It would also send a message of intimidation undermining judicial independence and impartiality — a price no Florida voter should be willing to pay.”

A Battle for Florida’s Courts, New York Times, July 30, 2012.

4.      The Iowa GOP Chairmen released a statement last week on the retention election of Iowa Supreme Court Justice David Wiggins, one of the judges who participated in the 2009 decision that legalized same-sex marriage in Iowa. His statement reads, “The Republican Party of Iowa believes we must be a state based on laws and not the whims of unelected activist judges attempting to impose their personal views on the public. The people of Iowa are tired of increasingly powerful bureaucrats arrogantly and deceitfully instituting law when they have no justification or ability to do so.” Justice Wiggins was quoted in the Des Moines Register as stating, “I have always viewed the role of the judiciary as limited. And I am proud of my work in writing opinions and helping resolve the issues that are brought before the court.” He is also quoted in the Quad City Times as saying, “Our system is built on checks and balances between independent branches of government. Two of the branches are designed to be political. It is unfortunate that Mr. Spiker apparently thinks that all three branches should be political.” In 2011, three other justices who participated in the 2009 case were voted out of their positions, as part of a campaign that relied heavily on out-of-state money. The Associated Press quotes Iowa Democratic Party Chairwoman Sue Dvorsky as saying, “We are very concerned about the risk these out-of-state special interest groups are bringing to our state, and we will not sit quietly as they crusade to eliminate an independent judiciary and taint the entire democratic system”

Jeff Eckhoff, GOP Leader Calls For Justice's Ouster, Des Moines Register, August 2, 2012; Press Releasefrom The Republican Party of Iowa, August 1, 2012; David Pitt, Iowa Republicans Ask Voters to Remove Justice, Associated Press – printed in Iowa City Press-Citizen, August 1, 2012.

Judicial Elections

5.      The judicial elections in West Virginia are causing a number of disputes related to campaign financing and public financing. One federal lawsuit is attempting to eliminate a $1000 contribution maximum to independent expenditure political expenditure committees, and there are two cases currently pending related to West Virginia’s system of public financing for judicial elections. A federal lawsuit claims that West Virginia’s matching funds provision is unconstitutional, while a state suit seeks to compel the state to follow the public financing program and release so-called “rescue” funds, which “allow a publicly funded candidate to receive additional funding for his/her campaign once a participating candidate passes a spending threshold or is targeted by an independent campaign.” The Brennan Center represents judicial candidate Allen H. Loughry II, a participant in West Virginia’s public financing system, in both lawsuits. The article points to the role a recent Supreme Court decision from Arizona related to such “rescue” funds in the public financing of elections for legislative and executive offices will have in deciding this case: “The Arizona decision's role in the West Virginia rescue funding cases hinges on whether judicial offices, and the elections for them, are sufficiently different from those of the other two branches of government.” An op-ed in the Charleston Gazette points out “If ever a state and an elected office needed a campaign finance system that reduces outside influence, or worse, it's the West Virginia Supreme Court. This pilot project was open to all political parties in the state -- Democrats, Republicans and Mountain Party candidates, although only a Republican took advantage of it…. Maybe, just maybe they will save this much-needed public funding system and help restore some voter confidence in the election process and the West Virginia Supreme Court.”

Lawrence Messina, Several W.Va. Election Issues Hinge on Court Challenge Outcomes, Associated Press – printed in The Republic, August 5, 2012; Janet Keating, Rescue Public Campaign Finance Project, Charleston Gazette, August 4, 2012.

6.      An editorial in the Fayetteville Observer discusses the new use of super-PACS in judicial elections in North Carolina. The editorial asserts “The judiciary occupies a special place in our republic and this subdivision of it. Its members aren't there to peruse polls and deliver the outcomes that the people who respond to polls want… Now, campaigns for seats on the state's top court are wide open to deep-pockets business and labor interests. And as the first super PAC wades in, supporters and opponents are offering nakedly partisan and ideological arguments.”

Sinking - Judicial Super PACs Take Court Races to A New Low , Fayetteville Observer, August 3, 2012; Gary Robertson, 1 NC Supreme Court Race Determining Political Balance of Court Attracts Super PAC, Associated Press – Printed in The Republic, July 29, 2012.

Judicial Ethics

7.      Former chief law clerk of then-Superior Court Judge Joan Orie Melvin testified at a preliminary hearing this week about political activities that she engaged in while working for the Judge. The clerk claims that in addition to speech writing and traveling for the campaign, she was asked to fabricate vouchers to get “street money,” which is used to encourage people to go to the polls. Suspended State Supreme Court Justice Melvin is accused of using her staff to help her 2003 and 2009 reelection campaigns with the help of her sister, and office manager, Janine Orie, and is charged with nine public corruption counts. The clerk “testified that at the end of the 2003 election season, she told Ms. Orie Melvin that she could no longer participate in political activity. Two days later, she said Janine Orie demanded her court and building ID.”  

Paula Reed Ward, Former Clerks Testify at Orie Melvin Preliminary Hearing, Pittsburgh Post-Gazette, July 30, 2012.

Miscellaneous

8.      Judges in Illinois will soon be able to request the removal and withholding of their personal information on the basis of safety, after Gov. Pat Quinn signed a new law called the Michael Lefkow and Donna Humphrey Judicial Privacy Improvement Act of 2012. The law is named after U.S. District Judge Joan Lefkow's husband and mother, who were both shot and killed in 2005 in what was thought to be retaliation after a medical malpractice decision. The law’s purpose, as stated in the article, is “to improve the safety and security of Illinois judicial officers to ensure they are able to administer justice fairly without fear of personal reprisal from individuals affected by the decisions they make in the course of carrying out their public function.” The law will allow judges to request that their information be removed from websites and other public documents, as well as to have their home and personal information redacted on public records requests.

Bethany Krajelis, Quinn Signs Law to Improve Safety of Illinois Judges, Madison – St. Claire Record, July 30, 2012.