Brennan Center for Justice

Federal Judicial Nominations Continue to Make Headlines
Major news outlets continued their coverage of federal judicial nominations by looking at the judicial vacancy crisis and President Obama’s nominations. The New York Times featured an editorial, saying, "The number of vacancies on the nation’s federal courts has reached an astonishingly high level, creating a serious shortage of judges and undermining the ability of the nation’s court system to bestow justice. Of 856 federal district and circuit court seats, 85 are unfilled — a 10 percent vacancy rate and nearly double the rate at this point in the presidency of George W. Bush. More than a third of the vacancies have been declared 'judicial emergencies' based on court workloads and the length of time the seats have been empty.” The editorial continues, "It is also worth noting that Mr. Obama has not been putting forth candidates with strong ideological profiles. His nominees are decidedly moderate, which was not always true of the Bush judicial choices that the Democrats felt compelled to filibuster." However, the editorial also argued that "Mr. Obama could help reduce the problem by speeding up his nominations. The White House appears to have sharpened its focus since the election, but currently, 62 district and circuit court vacancies have no nominees."

The Washington Post also featured an article examining whether President Obama is nominating moderate judges. The article focuses on one nominee in particular, “Take Sri Srinivasan, the principal deputy solicitor general who faces a Senate Judiciary Committee confirmation hearing next week. He spent five years working in the Solicitors General’s office under George W. Bush, and two years working in the same office under President Obama. In the interim he worked for the private law firm of O’Melveny & Myers, representing corporate clients including former Enron executive Jeffrey Skilling.” According to Bloomberg, “The White House is now focusing on the nomination of Sri Srinivasan for the U.S. Court of Appeals for the District of Columbia, considered the nation’s second-most influential court because it often handles major environmental, labor and national security cases through its jurisdiction over federal rulemaking. Srinivasan’s confirmation hearing is scheduled for April 10.” According to a different Washington Post article, “Giving liberals a greater say on the D.C. Circuit is important for Obama as he looks for ways to circumvent the Republican-led House and a polarized Senate on a number of policy fronts through executive order and other administrative procedures. The D.C. Circuit, with four Republican and three Democratic appointees, has four vacancies. It proved an obstacle for Obama during his first term — blocking proposed rules, for instance, to curb interstate air pollution and enhance cigarette labeling. The court also has put on hold dozens of cases relating to rules on workers’ rights, and it has challenged the president’s authority to name recess appointees.” The article continues, “In recent days, Obama has intervened in the push for Srinivasan, said a White House official who spoke on the condition of anonymity because the confirmation process is not complete. The president has used meetings with Republican and Democratic senators to make a case for swift confirmation, the official said.”
Sources: Editorial, Courts Without Judges, New York Times, April 6, 2013; Juliet Eilperin, How Controversial Are President Obama’s Judicial Nominees?, Washington Post, April 3, 2013; Mike Dorning, Obama Pushes Republicans to Drop Hurdles to Judicial Nominations, Bloomberg via San Francisco Chronicle, April 3, 2013; Juliet Eilperin, Obama Seeks to Shift Conservative Tilt of Key Court, Washington Post, April 2, 2013.

STATE JUDICIAL ELECTIONS    

Michigan Supreme Court Justice Speaks Out for Changes to Election System
Michigan Supreme Court Justice Brian Zahra spoke at an event recently about the problems that come with electing judges. The Observer and Eccentric reports Zahra saying, “It creates a perception that they are being influenced… It's inconsistent to have to go the electorate when you can’t promise them anything. Personally, I'm not in favor of judicial elections.” The article added, “Pointing to another problem in the judiciary system, Zahra said ‘there's only two ways to be nominated.’ One is the overly cumbersome act of gathering thousands of signatures and the other is to garner the endorsement of a political party.” This stance comes after a very contentious election season in 2012. According to the article, “Figures of how much money was spent on the state high court campaigns vary. The candidates' campaign committees raised $3.2 million that was reported to the Michigan Bureau of Elections, according to the The Michigan Campaign Finance Network, a nonprofit, nonpartisan organization that conducts research and public education on money in Michigan politics. On top of that there was $11 million worth of Supreme Court television advertisements that were sponsored by the state political parties and a Washington, D.C.-based nonprofit social welfare corporation called Judicial Crisis Network. The numbers are considered conservative estimates.”
Source: Diane Gale Andreassi, Supreme Court Justice Wants Campaign Changes, Observer and Eccentric, April 4, 2013.

PUBLIC FINANCING

West Virginia House and Senate Disagree on Public Financing Solution
The West Virginia House recently passed a bill that would make permanent the state’s judicial public financing pilot program. However, there is some disagreement in the Senate. According to the West Virginia Gazette, “Both the House and Senate are looking at continuing public financing of campaigns for state Supreme Court candidates, but the issue as of Monday is whether to make it permanent or limit it to the next election of justices, in 2016. As the bill left the House, it would allow qualifying candidates to receive $300,000 in public financing for contested primary elections, and $525,000 for general elections, and would make what has been a pilot project for the 2012 election permanent (HB2805). On Monday, the Senate Judiciary Committee amended the bill to extend the pilot project only to the next Supreme Court election, in 2016, citing concerns about funding for the pilot project.” The article continues, for context, “Under the original legislation, participating candidates received smaller base amounts, and could qualify for a series of matching funds to stay competitive with the biggest spending competitors. The state Supreme Court last year ruled that was an unconstitutional violation of the First Amendment rights of privately funded candidates, prompting the change in the current bill to the lump-sum payments for candidates participating in public financing." 
Source: Phil Kabler, House And Senate Differ On Campaign Financing, West Virginia Gazette, April 8, 2013.

New Mexico Governor Vetoes Public Financing Bill
The governor of New Mexico has vetoed a bill that would  reform the state’s public financing system for judicial elections and introduce a small donor matching program. According to the Associated Press, the bill would have “[p]rovide[d] supplemental public campaign financing for some candidates for the Public Regulation Commission and state appellate courts if they raise certain amounts of private contributions. The measure was to address a court ruling against a New Mexico provision giving extra public money to candidates if their privately financed opponents outspend them. [Governor] Martinez questioned whether the proposed fix was constitutional and urged lawmakers to overhaul the system in which judges run in partisan elections after their appointment.” In the governor’s veto statement, she said, “We need a broad, ground-up reform of the entire judicial election system. We have the unusual procedure of using a bi-partisan judicial nominating commission process with an immediate open partisan election system. I encourage the Legislature to consider broadly reforming our election system when it comes to judges and am willing to address the issue of public-financing reforms in that overall context.”
Source: Governor Vetoes Judicial Retirement, Other Bills, Associated Press via San Francisco Chronicle, April 5, 2013.

MERIT SELECTION

Wall Street Journal Editorial on Merit Selection Solicits Response from Former Governors
The Wall Street Journal featured an editorial criticizing merit selection for judges, saying “While the Missouri Plan was created with the hopes of insulating judges from politics, and travels under the false front of ‘merit selection,’ it has instead transferred power to state bar associations while shielding the selection process from public scrutiny.” The editorial criticizes efforts to introduce merit selection in Pennsylvania and concludes, “No method of judicial selection is perfect, but the rough and tumble of electoral accountability is better than leaving the choices to a lawyer’s guild that is accountable to no one but themselves.” Four former governors from Pennsylvania who have been campaigning for merit selection wrote a response to the editorial, stating: “As former governors of Pennsylvania, we care about choosing judges based on their experience and qualifications, not their political connections and fundraising skills. Merit selection is supported by a broad coalition of Pennsylvania businesses, civic and law-related organizations and religious groups… The editorial fundamentally mischaracterizes Pennsylvania's merit-selection proposal. Merit selection is a hybrid appointive-elective system that stops the toxic flow of money from litigants and law firms that often appear in state court. A bipartisan citizens’ nominating commission of lawyers and non-lawyers would screen candidates and recommend a short list of the most qualified to the governor. The governor would nominate someone from the list for Senate confirmation. The judge would stand for retention in periodic elections thereafter.” The letter concludes, “Enacting merit selection requires an amendment to Pennsylvania's Constitution. That means the legislation must pass in two legislative sessions and be approved by the voters in a referendum. Ninety-three percent of Pennsylvanians want to vote on whether to change the system of judicial elections that depends on campaign contributions from potential litigants and lucky ballot position. As former elected governors, we believe that the voters should have the opportunity to make that decision.”
Sources: Editorial, Judges, Politics and George Soros, Wall Street Journal, March 31, 2013; Edward G. Rendell, Thomas J. Ridge, Dick Thornburgh, George Leader, Why We Support Merit Selection of Judges in Our State, Wall Street Journal, April 7, 2013.

Florida LWV Criticizes Proposed Changes to Merit Selection
The League of Women Voters in Florida discussed merit selection on a call with media, attacking a bill that would weaken the state’s judicial nominating commission. According to the SaintPetersBlog, “In a call with media, the League of Women Voters of Florida alerted Floridians to a legislative proposal it says ‘would further weaken the firewall intended to shield the judicial branch from political influence.’ According to the League, [in] every session since 2011 some form of legislation has surfaced that seeks to further undermine or politicize the rigor and effectiveness of the judicial merit selection process. This year, House Bill 7033 would expand political control over the majority of members on each judicial nominating panel by subjecting them to removal at any time without cause.” The article goes on to say, “In stark contrast to this type of legislation, voters overwhelmingly rejected a proposed constitutional amendment on the November ballot that would have added another layer of political influence over court appointments.”
Source: Peter Schorsch, League of Women Voters Says House Bill Would Undermine Judicial Merit Selection Process, SaintPetersBlog, March 28, 2013.