Brennan Center for Justice

1.            At noon Pacific Time (3:00 ET) today, University of California, Irvine, Dean Erwin Chemerinsky, UC Irvine Professor Rick Hasen, and Professor James Sample of Hofstra Law School, will discuss the impact of Citizens United v. FEC on judicial elections. The discussion can be accessed remotely via this link, which will go live at noon (PT).  It should be an interesting and highly informative discussion.

Recusal

2.            At the American Bar Association midyear meeting last Friday, the Standing Committee on Ethics and Professional Responsibility and the Standing Committee on Professional Discipline sponsored a hearing to discuss proposed amendments to the ABA Model Code of Judicial Conduct. Last summer, the ABA House of Delegates approved a judicial disqualification resolution urging states to establish clear procedures for dealing with judicial disqualification and calling for greater transparency of campaign spending in judicial races. Proposed amendments to the Model Code discussed at last week’s public hearing focused on responding to conflicts of interest that can arise because of spending in elected judges’ election campaigns.

Debra Cassens Weiss, Ethics Proposals Would Require Law Firms to Report Lawyers’ Judicial Campaign Contributions, ABA Journal, February 3, 2012.

Federal Judicial Selection

3.            At a hearing of the Senate Judiciary Committee last Thursday, Utah Senator Mike Lee announced he is “duty-bound to resist the consideration and approval of additional nominations until the president takes steps to remedy the situation.” Lee stated that he is using his authority as a senator to block Obama's nominees because he the president's recess appointments last month were unconstitutional, as the Senate was not technically in recess.  In response, President Obama chastised the Senator’s politically-motivated actions, stating in his weekly address that “[the American people] deserve better than gridlock and games.”  The President has also proposed new Senate rules to guarantee up-or-down votes on judicial nominees in 90 days. AFort Worth Star-Telegram editorial praises the plan, and urges bipartisan approval for it.  However, in a West Virginia Record article, law professor Carl Tobias of the University of Richmond expressed doubt that the Senate would accept the president’s proposal.

Jessica M. Karmasek,Law Professor Doubts Senate will Speed up Nominations, West Virginia Record, January 30, 2012; Obama's Proposal for Senate Votes on Judicial Nominees Deserves Bipartisan Approval, Monday, Jan. 30, 2012; Obama, Like Roberts, Seeks Harmony in Washington, Christian Science Monitor, January 30, 2012 ; Scott Wong,Lee vows to Block Obama Nominees, POLITICO, January 26, 2012; Matt Canham, Obama Takes aim at Sen. Mike Lee in Nominee Fight, The Salt Lake Tribune, January 28, 2012; Al Kamen, Judicial Nominees: Beware the Thurmond Rule, In the Loop, February 3, 2012; Jennifer Bendery, Sen. Mike Lee Vows to Block Obama's Nominees, Uses PAC to Raise Money off Effort, Huffington Post, February 1, 2012.

Judicial Reform

4.            Gavel to Gavel announced that Oklahoma State Senator Ralph Shortey has introduced a constitutional amendment to bar judicial review by the state Supreme Court of laws enacted in Oklahoma. The proposed amendment—which would create a new Oklahoma Ad Hoc Court of Constitutional Review to rule on the constitutionality of state laws—prompted legal analyst Andrew Cohen to remark in an Atlantic commentary that,“ Oklahoma is giving New Hampshire a run for its money for craziest state lawmakers.”

Bill Raftery, Oklahoma Becomes Third State this Year to Consider Stripping its State Supreme Court of Power of Judicial Review, Gavel to Gavel, February 2, 2012; Andrew Cohen, Some 'Three Dot Journalism' in Honor of Herb Caen, The Atlantic, February 3, 2012.

State Judicial Elections

5.            According to an Alabama NBC affiliate, “[t]he hottest race on the March primary ballot in Alabama may not be the Presidential race, but the race for Chief Justice of the Alabama Supreme Court.”  The article notes that the three judicial candidates—current Chief Justice Chuck Malone, former Chief Justice Roy Moore and former Attorney General and current Mobile District Court Judge Charlie Graddick—are all actively fundraising. Chief Justice Malone, for example, reportedly raised over $100,000 last month.

Samuel King, Fundraising Battle Heats up in Chief Justice Race, WSFA,February 02, 2012.

Diversity on the Bench

6.            After New Jersey Governor Chris Christie nominated the first openly gay justice to serve on the state Supreme Court, a Philadelphia Inquirer editorial pointed out that while the Governor  “deserve[s] praise for the nod to diversity,” his past actions, particularly his refusal to reappoint the court’s previous only black justice, John E. Wallace, should not be forgotten. Governor Christie’s recent nominations of Bruce Harris, an openly gay African American, and Phillip Kwon, a Korean American, have, in part, been overshadowed by publicity surrounding the odd coupling of Governor Christie’s controversial proposed same sex marriage referendum and his nomination of an openly gay judge.  The Governor has stated that, if confirmed, Judge Harris would recuse himself from ruling on same-sex marriage issues.

Nod to Diversity now Doesn't Make up for Past, Philadelphia Inquirer, January 28, 2012; Paul Mulshine, Christie And Harriet: the Guv's Got a Miers Problem and Needs an Alito, The Star Ledger , January 31, 2012.

Court Resources

7.            A bill sponsored by California Assemblyman Charles Calderon, which would transfer power over spending decisions from the state Judicial Council to local trial courts, is at the heart of a California court controversy. The state judiciary is facing severe court funding cuts, and Calderon claims that some courts have been forced to close due to budget cuts set by the Judicial Council, which prioritized funding a computer modernization program over keeping courtrooms open. In contrast, Democrat Mike Feuer called the bill a “distraction” from the actual problem of finding adequate money to keep courts operating. According to Feurer, “We’re on the verge of a constitutional crisis in our state. . . because our courts are so severely underfunded.” A Los Angeles Times article called the bill an “inappropriate intrusion into the fundamental governance of the judicial branch.” Meanwhile, an editorial in the San Francisco Chronicle worried that the bill “threatens judicial independence and a 15-year effort to instill consistent practices and standards from county to county.”

Patrick McGreevy, California's Chief Justice Loses Round over Judicial Council Power, Los Angeles Times, January 30, 2012; Legislature Meddling in State Judicial Conflict, San Francisco Chronicle, February 1, 2012.

8.            Two states—Illinois and Indiana—are experimenting with cameras in the courtroom.  The Indianapolis Star reported that the Indiana Supreme Court approved a pilot project for delayed webcasting of certain trial court proceedings in Lake County. The Court’s press release describes the initiative as “another step in the evolution of the way we provide news and information to the public on multiple platforms.” Meanwhile, an Associated Press article announced that the Illinois Supreme Court will allow a judicial district on the Iowa border to experiment with cameras in courtrooms.  While cameras are currently banned in courtrooms in the rest of Illinois, they are allowed in Iowa.

Karen Hawkins, Illinois High Court Choses District on Iowa Border to Experiment with Cameras in Courtrooms, Associated Press, January 31, 2012; John Tuohy, Indiana to Experiment Again With Cameras in the Courtroom, Indianapolis Star, January 29, 2012.