Brennan Center for Justice

1.      In Nashville, 11 of 12 appeals judges have recused themselves from hearing a case regarding Tennessee’s judicial selection system. “Hooker's lawsuit says the only time a governor can appoint a top judge under the state constitution is when Supreme Court judges recuse themselves because of a conflict of interest. Other gubernatorial appointments, he contends, are invalid because the state constitution says judges shall be ‘elected by the qualified voters’ within the jurisdiction of the court involved…The present system calls for the governor to fill judicial vacancies from a list of nominees submitted by a nominating commission.” The one remaining appeals judge will serve on a three judge panel with two retired appeals court judges who were appointed by the Supreme Court.

Tom Humphrey, Political Notebook: Judges Retreat from Lawsuit Over Judge Selection, Knoxville News Sentinel, July 23, 2012.

2.      Revisions to Missouri’s Judicial Selection system are slated to appear on the ballot in November. Currently, Missouri has a nominating commission made up of a Missouri Supreme Court Judge, three lawyers elected by members of the Missouri Bar, and three non-lawyers appointed by the governor. Under the proposed new plan, the governor would appoint four commissioners, who would not be required to be non-lawyers, and the Supreme Court judge would be replaced by a former appellate judge, who would be a non-voting member. A lawsuit was filed recently challenging the ballot language proposed by Secretary of State Robin Carnahan. According to the Columbia Daily Tribune, “The lawsuit claims the summary is inaccurate and unfair in several ways, including by suggesting that the governor could appoint all lawyers to the commission. Although that might be technically possible, ‘the summary implies that the amendment would give 'lawyers' greater control over the Commission. In fact, the reverse is true,’ says the lawsuit, which was publicized by the group Better Courts for Missouri.”

Associated Press, Lawsuit Seeks Ballot Rewrite, Columbia Daily Tribune, July 14, 2012, Chris Blank, GOP Lawmakers Don't Like Secretary Of State's Summary of Health Care, Judicial Ballot Measures, The Republic, July 4, 2012, Susan Carlson, Don't Mess With The Plan, St. Louis Post Dispatch, July 26. 2012.

Supreme Court

3.      The New York Times published an editorial this week about the so called “Thurmond Rule,” which refers to the tradition of not acting on judicial nominees in the last six months of a president’s term. The editorial calls for an end to the Thurmond Rule, arguing that Republicans who try to “[bar]their colleagues from casting an up-or-down vote” on judicial nominees “owe an explanation to the public for not doing their jobs.” The Times writes, “The Thurmond rule is one of the reasons the Senate has become an American headache. There are 76 vacant federal judgeships, 32 regarded as emergencies because cases are overwhelming the existing judges. Fifteen consensus nominees are pending now. And yet Republicans, far more than Democrats did under President George W. Bush, are putting politics and ideology above a functioning judiciary system, even on noncontroversial nominees.”

A Poor Excuse to Block Judges, New York Times, July 29, 2012.

Recusal

4.      Wisconsin State Supreme Court Justice Annette Ziegler has recused herself from an ethics case against Justice David Prosser, who is charged with a judicial ethics violation for allegedly putting his hands around the neck of Justice Ann Walsh Bradley during a June 2011 dispute. Justice Ziegler is the second justice to recuse herself from the case, after Justice Pat Roggensack recused herself a few weeks ago. Wisconsin Supreme Court Justice N. Patrick Crooks has indicated he will not recuse himself from the case, citing “the Rule of Necessity,” and reasoning that “This matter -- involving discipline of a sitting Supreme Court justice arising from incidents with sitting justices that were witnessed by other sitting justices -- places this court in a difficult position…It is the only available tribunal to make a final determination regarding appropriate discipline.” The other three justices have not indicated whether or not they intend to recuse themselves or will participate in the case.

Patrick Marley, Ziegler Recuses Herself in Prosser Case, Milwaukee Journal Sentinel, July 27, 2012; 2nd Supreme Court Justice Recuses Herself in Prosser Choking Case, WTAQ, July 27, 2012; Jessica Karmasek, Wis. SC Justice Denies Prosser's Recusal Request, Legal News Line, June 28, 2012.

Judicial Ethics

5.      A story out of Kansas this week raises the question of how judicial ethics rules should apply to judges’ use of social media. 13th Judicial District Judge Hon. Jan Satterfield of El Dorado clicked “like” for a sheriff candidate on Facebook, which has led to a complaint with the Kansas Commission of Judicial Qualifications. According to the article, “Lee White filed the complaint because he believes it violates the judicial canons of ethics that prevent a judge from ‘publicly endorsing or opposing another candidate for any public office.’” White is also quoted in the article as saying, “Although it seems trivial on the surface, I believe this could be an interesting case and probably the first of its kind in Kansas. With the growth of social media, the court system needs to define how its rules for judges apply in cyberspace. I hope the commission and perhaps even the Kansas Supreme Court will do so in this case.”

Kent Bush, Facebook "Like" Becomes Ethics Issue For Butler County Judge, Augusta Gazette, July 26, 2012; The Associated Press, Kansas Judge Causes Stir With Facebook 'Like', The Republic, July 29, 2012.

Judicial Reform

6.      The Quality Judges Initiative at IAALS (Institute for the Advancement of the American Legal System) at the University of Denver, has released a new report on judicial selection. The report, Cornerstones of State Judicial Selection: Laying the Foundation for Quality Court Systems and Judgestalks about both the desired attributes of judges and the attributes of the system in which judges operate. In the introduction to the report, the IAALS writes “IAALShopes to reframe the discussion of state judicial selection, focusing at the outset not on who selects judges, but rather on what kind of court systems and judges court users expect and need. From this starting point, we can then identify features of judicial selection processes that will best enable them to produce these court systems and judges.”

Natalie Knowlton, New Report Offers Roadmaps for Better Judicial Selection, Gavel Grab, July 23, 2012.