Fair Courts E-lert: Future of Prop 8 Ruling Debated Vigorously
1. When the Ninth U.S. Circuit Court of Appeals ruled last Tuesday that California’s Proposition 8 was unconstitutional, the three judge panel also affirmed District Court Chief Judge James Ware’s conclusion that trial Judge Vaughn Walker was not required to step aside from hearing the case due to his sexual orientation and long-term relationship with another man. In its ruling, the Ninth Circuit opined that it was not reasonable “to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by a proceeding . . . To hold otherwise would demonstrate a lack of respect for the integrity of our federal courts.” However, as the deluge of commentary indicates, not everyone is satisfied by the ruling. A roundup of press on Gavel Grab highlights the variety of commentary—from equal rights commendations to judicial activism accusations.
Andrew Cohen, The 8 Biggest Lessons From Yesterday's Prop 8 Ruling, The Atlantic, February 8 2012; Maura Dolan, Prop. 8: Gay Judge’s Relationship not a Factor, Court Rules, LA Times, February 7, 2012; Peter Hardin, Future of Prop 8 Ruling Debated Vigorously, Gavel Grab, February 9, 2012.
Court Resources
2. The Wall Street Journal recently highlighted how negative economic consequences may result from states’ continued judicial budget cuts. As David Boies, co-chairman of the American Bar Association task force on the Preservation of the Justice System, pointed out “you think you’re saving a million dollars by cutting the judicial budget. But in fact you’re incurring tens of millions of dollars of costs on consumers of the justice system who now have to wait, have to travel, have to incur additional fees — have to just generally have justice delayed.” Meanwhile, the Birmingham News publicized a similar warning—issued by the Alabama State Bar—that “[a]n underfunded court system chills investment, slows job creation and reduces tax revenue in our state.”
Jennifer Smith, Justice Delayed, Lawyers Unpaid?, Wall Street Journal, February 9, 2012; Eric Velasco, Alabama State Bar Calls on Legislature to Fully Fund Courts, The Birmingham News, February 6, 2012; Ronnie Ellis, Chief Justice asks for Additional Funding, The Morehead News, February 7, 2012.
Federal Judicial Selection
3. On Thursday, the U.S. Senate voted to confirm Cathy Bencivengo for a judgeship in the Southern District of California by a vote of 90-6. In an article about the confirmation,the Hill notes that Benecivengo was confirmed despite Senator Mike Lee’s threat to block all federal nominations in protest of the president’s recess appointments. Ironically, a commentary by University of Richmond law professor Carl Tobias asserts that “[t]he principal bottleneck [to confirmation of judicial nominees] remains the Senate floor.” A blog post by the People for the American Way illustrates just how dire the federal judicial crisis is with a chart that compares the average wait time that President Obama’s judicial nominees are facing for an up-or-down vote in the Senate—100 days—with the wait time faced by George W. Bush’s nominees—24 days.
Miranda, The Judicial Confirmation Crisis in One Easy Chart, People for the American Way, February 6, 2012; Carl Tobias, Commentary: Obama, Congress Must Fill Lower Federal Court Openings, Star-Telegram, February 9, 2012; Josiah Ryan, Floor protest over Obama's Recess Appointments Falters in Senate, The Hill, February 9, 2012.
State Judicial Slection
4. Editorials in both the Commercial Appeal and the Tennessean express support for a constitutional amendment to legitimize Tennessee’s merit selection process for picking appellate judges proposed by Governor Bill Haslam and the House and Senate majority leadership. As the Commercial Appeal commentary notes, “[i]f that's what it takes to keep overt politics out of state appellate judgeship selections, we hope the governor gets his way.” However, some Republican legislators, led by Representative Glen Casada, are pushing for Tennessee to switch to popular election of judges.
Editorial: No Place for Politics,Commercial Appeal, February 9, 2012; Haslam's Judges Plan Gets Support, The Tennessean, February 8, 2012.
Miscellaneous
5. Last week the U.S. Senate’s Judiciary Committee voted 11-7 in favor of bill that would permit the televising of Supreme Court proceedings, “unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.” With the Senate committee’s approval, both houses of Congress are slated to vote on the bill, according to LegalNewsline.com. However, not everyone is in support of the idea. While Chairman Patrick Leahy stated that technology would deepen public understanding of the Court, and televising the proceedings would grant “access to the government for the people,” the Supreme Court has previously been opposed to televising its proceedings, and Senator Dianne Feinstein stated that the Senate should respect the Supreme Court as a separate branch of government.
John O'Brien, Bill to Televise U.S. SC Passes Committee, LegalNewsline, February 9, 2012.
6. Last week’s E-lert highlighted “cameras in the courtroom” initiatives in Indiana and Illinois. A Chicago Tribune article that takes a closer look at the pilot project in Illinois, notes that cameras have been allowed in Wisconsin courtrooms for over 30 years, and are now considered a part of the courtroom experience. According to the Tribune, “The two photographers covering the … sentencing from the jury box were viewed as being as commonplace as the chairs they occupied.”
Ted Gregory, Few Camera Problems in Wisconsin Courts, Chicago Tribune, February 10, 2012.
