Brennan Center for Justice

FUNDING

Government Shutdown Crippling Federal Courts
Senator Pat Leahy (D-VT), chairman of the Senate Judiciary Committee, spoke out Saturday about the government shutdown and its effect on the federal judiciary and government transparency. The federal courts have enough funds to stay open for ten days following the shutdown, but after that point, their capacity to continue normal operations is uncertain. In his statement, Senator Leahy asked, “What happens when the operating funds run out completely? Each and every federal court in this country will soon have to start making decisions about what part of justice is essential and what can be delayed until funding is restored. If this shutdown continues, millions of Americans will not have access to the justice they deserve under our Constitution.”

Courts across the country are already seeing the impact of the shutdown on cases involving government lawyers. U.S. Justice Department lawyers in several states have asked to delay civil cases. In a September 30^th release, the Justice Department stated, “Civil litigation will be curtailed or postponed to the extent this can be done without compromising to a significant degree the safety of human life or the protection of property.” In a Boston Herald article, Carmen M. Ortiz, U.S. Attorney for the District of Massachusetts, said, “Unfortunately the shutdown is falling unfairly on the backs of a few.” A third of the staff in Ortiz’s office has already been furloughed, and Ortiz is in talks with judiciary leaders about how they will deal with cutbacks after funding runs out on October 14^th. In his statement Saturday, Senator Leahy pleaded, “Our courts have been forced to run on fumes for far too long, and soon, they will be running on empty. I call on the House of Representatives to stop playing games with our co-equal branch of government, the judiciary.”
Sources: Leahy Statement On Impact Of Shutdown On Courts, Public's Right To Know, Office of Senator Pat Leahy, October 5, 2013; Andrew Zajac and Tom Schoenberg, Civil Court Cases Face Possible Delays Due to Government Shutdown, Bloomberg via Insurance Journal, October 4, 2013; U.S. Department of Justice FY 2014 Contingency Plan, United States Department of Justice, September 30, 2013; Gary J. Remal, Courts hit hard as shutdown continues, Boston Herald, October 3, 2013.

STATE JUDICIAL SELECTION

Merit Selection Proposed in Minnesota
A proposed constitutional amendment pending before the Minnesota legislature would end the state’s use of competitive judicial elections and replace it with a merit selection system, writes Gavel Grab.  The proposal calls for an independent nominating commission to recommend candidates to the governor, who would then appoint judges to the bench. The judges would face periodic retention votes, and an independent performance evaluation commission would rate judges before each election. State Senator Dave Senjem (R-Rochester), a co-author of the bill, said there had been little discussion about the proposal during the 2013 legislative session. Proponents of the amendment are making a strong public push for its necessity, in hopes that it will appear on the November 2014 ballot, according to Derek Sullivan of the Post-Bulletin. Supporters recently spoke about the bill at the University of Minnesota-Rochester, and Sarah Walker, president of the Coalition for Impartial Justice, “said her organization is going to every corner of the state with the assumption that the proposed constitution[al] amendment will be on the 2014 ballot.” “Senjem said he doesn't feel judges should have to deal with partisan politics, public discourse, or have to raise money like he does,” Sullivan adds in his article.
Sources: Peter Hardin, Backers’ Push for Merit Selection of Minnesota Judges is Spotlighted, Gavel Grab, October 3, 2013; Derek Sullivan, Bill proposes changing judge elections, Post-Bulletin, October 2, 2013.

Missouri’s Merit Selection System at Risk
Last week, the Missouri Secretary of State’s office approved ballot language for two identically worded constitutional amendments that would change the state’s judicial selection process, reports the Associated Press. Under Missouri’s current system, Supreme Court and Court of Appeals judges are appointed through a merit selection system. These amendments would do away with that process and establish competitive elections for the two courts. The amendment would also increase the Supreme Court bench from seven justices to nine.  Proponents of these two amendments may now begin to collect signatures in order to place the proposals on the November 2014 ballot. “A petition must get valid signatures from six of the state’s nine congressional districts that equal eight percent  of the votes cast for governor in that district in the last election.” Last November, Missouri voters defeated a similar petition that would have weakened Missouri’s merit selection system, giving the governor a more prominent role in the judicial selection process.
Sources: Proposals seek Missouri court changes, Associated Press via Houston Chronicle, October 3, 2013; Peter Hardin, Elections, Instead of Merit Selection, Sought for Top Judges in Missouri, Gavel Grab, October 4 2013; Justice at Stake HailsDefeat of Ballot Measure on Missouri Courts, Justice at Stake, November 7, 2012.

JUDICIAL AGE LIMITS

New York Ballot Question Could Raise Retirement Age for State Judges
A question on the New York state ballot this November will decide if the retirement age for state Supreme Court and Court of Appeals judges will be raised from 70 to 80, reports the Gotham Gazette.* “Advocates for the amendment – prime among them being the state’s Chief Judge, Jonathan Lippman, himself near the age limit to serve – say passing the measure could alleviate the state’s overloaded judicial system, where there is a backlog of some 31,000 cases in [the] state Supreme Court alone.” Some opponents of the law are concerned that Judge Lippman is pushing through his own term-limit extension, as this move would clearly benefit his seat on the Court of Appeals. “However, opponents of the measure have largely kept out of the spotlight because challenging New York’s chief judge is not considered a bright career move. Others say allowing older judges to stay on the bench will keep the higher positions on the court occupied by elderly white men, thereby discouraging diversity on the court.” If the ballot measure passes, New York would have the second highest retirement age in the nation; Vermont requires retirement at age 90.
*In New York, the Court of Appeals is the highest appellate court in the state. The state Supreme Court is the state’s main trial court.
Sources: David Howard King, How Old Is Too Old To Judge In NY? Voters Will Decide, Gotham Gazette, October 1, 2013; Bill Raftery, New York Proposal 6: Judges would have second highest mandatory retirement age in nation if approved, Gavel to Gavel, October 2, 2013.