Fair Courts E-lert: A New Abuse on Judgeship
1. Writing in the Atlantic, Andrew Cohen leverages the national attention on the United States Supreme Court’s Affordable Care Act ruling last week to remind readers that judicial appointments are political: “Our federal courts are supposed to be a bulwark against the tyranny of the majority. But our federal courts are populated by men and women who are selected by majority rule. Whether you are furious or relieved at this week's Supreme Court news the fact is that you are ultimately responsible for that fifth vote that turned the tide in those four cases. And you will be responsible, too, for all of the coming Supreme Court doozies heading our way.” Numerous other media outlets reported on the relationship between partisanship and the status of judicial nominees awaiting Senate confirmation. According to the Salt Lake Tribune, Utah Senator Mike Lee has agreed to stop blocking President Obama’s judicial nominees as long as Democrats agree to refrain from nominating any appellate judges until after the November election. Meanwhile, the Blog of Legal Times reports that Republican Senator Jim DeMint of South Carolina is blocking the nomination of Donna Murphy, whose nomination to the District of Columbia Superior Court has been pending for over a year.
Andrew Cohen,Supreme Court Review: The Tyranny of the Majority, The Atlantic, June 29 2012; Our Views: A New Abuse on Judgeship, The Advocate, July 02, 2012; Matt Canham, Lee Ready to Deal on His Judicial Protest, The Salt Lake Tribune, June 27 2012; Constitutional Principles: Filibusters, Richmond Times-Dispatch, June 24, 2012; Todd Ruger and Zoe Tillman, GOP Senator Blocking D.C. Superior Court Judicial Nominee, The Blog of Legal Times, June 26, 2012.
Court Resources
2. Previous E-lerts have highlighted how extreme and ongoing judicial budgets cuts threaten judicial independence, compromise public access to justice, and impact the economic health of communities. A story in today’s New York Times delves further into the negative consequences of judicial budget cuts. According to the Times, “the mushrooming of fines and fees levied by money-starved towns across the country and the for-profit businesses that administer the system” have resulted in “growing numbers of poor people… jailed and in debt for minor infractions.” More information on the relationship between filing fees and criminal justice debt is available here.
Ethan Bronner, Probation Fees Rise, Firms Profit and the Poor Go to Jail, New York Times, July 2, 2012.
Merit Selection
3. A proposed constitutional amendment in Tennessee would replace the state’s system of merit selection for supreme court and appellate court judges with executive appointments subject to legislative confirmation. However, according to American Bar Association President William Robinson III, “Tennesseans can be proud of their system for selecting appellate court judges.” Accordingly, Robinson urges voters “not abandon its proven system that explicitly values these qualities in judges.”
William T. 'Bill' Robinson, Tennessee Judicial Selection Plan is a Model for Others, The Tennessean, June 29, 2012.
Attacks on the Judiciary
4. Last week the Miami Herald reported that the Georgia-based Southeastern Legal Foundation filed suit to remove from the November ballot the names of the three Florida Supreme Court Justices standing for retention elections. While plaintiffs claim that the justices should be disqualified because they used court personnel to file election documents, a spokeswoman for the Justices described the suit as “a headline hunt.” In another Herald article, Stanley Tate, a board member of the newly-formed group Defend Justice from Politics, which is providing support to the justices’ defense, claimed that “the justices are being attacked by special interests and politicians who are angry over rulings that have protected individual rights under the Florida Constitution.” Meanwhile, writing as an Orlando Sentinel guest columnist, former Florida Bar president Russell Troutman notes that, “[l]ike sandpaper on a watercolor painting, coarse politics threatens Florida's judiciary and its independence.”
Group Formed to Defend Fla. Supreme Court Justices, The Associated Press, June 27, 2012; Russell Troutman, Campaign Against 3 Fla. High Court Justices is not Justified, Orlando Sentinel, June 26, 2012; Mary Ellen Klas, Lawsuit Aims to Throw three Florida Supreme Court Justices off Ballot, Miami Herald, June 25, 2012.
State Judicial Elections
5. A Madison County Record report notes that “an election contest for the 5th District Appellate Court in Illinois is shaping up as a potentially big-money race.” Illinois State Board of Elections filings reviewed by the Record indicate that the campaign committee of Democrat Judy Cates received almost $50,000 in the most recent finance reporting period, while her Republican challenger, Judge Stephen McGlynn, received $5,000 during the same period. Historically, Illinois’s contested partisan elections have been expensive and hard-fought and in 2010 the retention election of Illinois Supreme Court Justice Thomas Kilbride surpassed state records for spending in retention contests, with over $1.6 million spent on television advertising. Of that, almost $700,000 was spent by the Illinois Civil Justice League (ICJL) to finance “soft on crime” anti-Kilbride ads. ICJL President Ed Murnane told the Record that while his group has “not gotten actively involved yet, but we certainly intend to. July will probably be busy for us.”
Bethany Krajelis, Chicago money pours into 5th District Appellate Court race; Race Pits Democrat Cates Against Republican McGlynn, Madison County Record, June 21, 2012.
Judicial Public Financing
6. West Virginia Supreme Court candidate Allen Loughry—the only candidate to opt-in to the state’s public financing program—expressed his frustration with the State Election Commission’s recent vote to postpone addressing whether the program can provide additional money known as "rescue funds." After the United States Supreme Court ruled Arizona's version of rescue funding for its public-financing program unconstitutional last June, West Virginia Secretary of State Natalie Tennant decided not to implement the rescue funds portion of the program. According to the Associated Press, Loughry’s campaign is “in limbo” as he waits for a commission ruling in order to decide whether to withdraw from the program. The AP also noted that this year the six Democratic West Virginia supreme court candidates “spent $1.7 million on their primary, making it the most expensive contest on the May 8 ballot, surpassing even the race for governor.”
Chris Dickerson, Loughry Criticizes Tennant over Public Funding, West Virginia Record, June 28, 2012; Lawrence Messina, W.Va. Candidate Financing Provision Up in Air, Associated Press, June 25, 2012.
Miscellaneous
7. Former Indiana Supreme Court Chief Justice Randall Shepard explains in an essay in the Atlantic that “courts and judges in particular are well suited for making a difference in civic education.” According to Chief Justice Shepard, “Judges and lawyers have traditionally not viewed themselves as having a central role in public education about law and government. We thought that other elements of society had ownership of that task. But the diminished capacity of some of these elements (especially the incredible shrinking press), suggest that the profession must be more assertive on this front.” He highlights civic education efforts undertaken by the Indiana Supreme Court and by former U.S. Supreme Court Justice Sandra Day O’Connor, and also suggests that technology could be leveraged to increase public awareness and engagement.
Hon. Randall T. Shepard, The Necessity of Civic Education, The Atlantic, June 27 2012.
