Brennan Center for Justice

1.            Writing in Slate, former New York Times Supreme Court correspondent Linda Greenhouse explains the evolution that has led her to support term limits for U.S. Supreme Court justices. Greenhouse notes that “[s]ince Supreme Court vacancies occur so randomly (Carter with none, Nixon with four), each vacancy is a cataclysmic event for which the president’s and Senate’s business basically comes to a standstill. With the twice-per-term vacancies that the 18-year term limit would deliver, everyone would know that their party would have its share (assuming they could elect the right president) and it might lower the temperature surrounding each vacancy.” Meanwhile, a USA Today article points out that because four sitting justices are approaching the age of 80, “whoever is elected president might have a very rare opportunity to alter the direction of a closely divided court for decades to come.” For that reason, the article suggests that “[t]he future of the Supreme Court clearly should be a major issue in the presidential campaign.”

Linda Greenhouse, The 18-Year Bench, Slate, June 7, 2012; Tony Mauro, Column: Why Top Court is a Key 2012 Issue, USA Today, June 6, 2012.

Federal Judicial Selection

2.            Last week the nonpartisan Congressional Research Service (CRS) issued a report on the delay in confirmations of federal judicial nominees, including an overview of President Obama’s judicial nominees to date, and an analysis of factors leading to delayed confirmations of nominees. An article in The Atlantic about the CRS report highlights a crucial conclusion: “Obama has been slower than Bush to put nominees forward, and the Senate has been even slower to consider those he does nominate.”  Relatedly, the Washington Post reports that the challenges of confirming judicial nominees in the current political climate has given rise to a new creature in Washington:  a lobbying firm with a mission of helping judicial nominees—and their backers—navigate the increasingly difficult confirmation process.

Carlyn Kolker, Summary Judgments for June 5- Bad numbers, Thompson Reuters, June 5, 2012; James Fallows, American Dysfunction Watch: State of the Judiciary, The Atlantic, June 5 2012; Catherine Ho, Firm’s niche: Lobbying for federal judges, Washington Post, June 10, 2012.

3.            Last Wednesday, the Senate voted to confirm Toledo defense lawyer Jeffrey Helmick as a U.S. District Court judge. The vote, however, came more than a year after Helmick was nominated by President Obama, according to the Toledo Blade. Meanwhile, conflict over judicial confirmations continues. The Blog of Legal Times reports that Senate Majority Leader Harry Reid is pushing for a floor vote on the nomination of Andrew Hurwitz to U.S. Court of Appeals for the Ninth Circuit. While Hurwitz is supported by both Arizona senators, other Republicans have opposed his nomination, claiming a law review article indicates the judge is biased in favor of abortion supporters. Also, a Times-Picayune article reports that Republican Senator David Vitter of Louisiana is blocking President Obama’s nomination to the federal district court of Baton Rouge. According to the Times-Picayune, Vitter informed the American Bar Association that while he has “bent over backwards to cooperate regarding President Obama's Louisiana nominees. . . . Now that it's a few months before a presidential election, however, I'm going to let the people speak before supporting any others."  Finally, Charlie Savage reports on the New York Times’ Caucus Blog that earlier today, President Obama “nominated two lawyers to fill vacancies on the United States Court of Appeals for the District of Columbia Circuit, a powerful panel to which he has so far been unable to appoint anyone since taking office.”

Bruce Alpert, Vitter Blocking Obama Nominee for Federal Court in Baton Rouge, Times-Picayune, June 5, 2012; Senate Gives Nod to Toledo Lawyer, Toledo Blade, June 7, 2012; Charlie Savage, Obama Nominates Two to Appeals Court, New York Times, June 11, 2012.

State Judicial Elections

4.            A New York Times editorial describes the Super PAC recently formed to support the candidacy of incumbent North Carolina Supreme Court Justice Paul Newby as “another example of the devastating harm caused by Citizens United.” The Times also points out that in his Citizens United dissent, U.S. Supreme Court Justice John Paul Stevens predicted that the kind of independent expenditures Citizens United opened the door to “would overwhelm state court races, which would be especially harmful since judges must not only be independent but be seen to be independent as well.” Similarly, an editorial in the News & Observer concludes that “[t]here’s simply no good outcome when candidates for the bench try to outmuscle each other in fundraising – or, in the latest twist, when groups backing those candidates plunge into the deep end of the fundraising pool.”

Tilted bench?, News & Observer, June 11, 2012; North Carolina, Meet Citizens United, New York Times, June 5, 2012.

5.            Last week, the L.A. Times suggested that the average voter “either has no clue how to assess judicial candidates or spends little time doing so.” The article quotes Jaime Regalado, professor emeritus of political science at California State, Los Angeles, who asked how voters are supposed to know judges are doing “a good job” if they don’t know anything about them.  However, Superior Court Judge Lawrence G. Brown offers a competing view in a Sacramento Bee commentary.  Judge Brown describes the appointment process as “daunting.” In contrast, Judge Brown believes that “California's system strikes an ideal balance between judicial independence and accountability.”  He notes that California judges are rarely challenged—and therefore do not have to mount campaigns—and are subject to “a stringent judicial code of ethics” in the event they do campaign.

Lawrence G. Brown, Viewpoints: System to Select Judges Balances Independence and Accountability, The Sacramento Bee, June 6, 2012; Ashley Powers, California Voters Often Don't Know Much about Judicial Candidates, Los Angeles Times, June 4, 2012.

Merit Selection

6.            An op-ed in the Harrisburg Patriot-News laments that, “once again, a sitting Supreme Court Justice has been indicted on criminal charges.”  The commentary suggests that the Pennsylvania judiciary could avert these crises of public confidence that follow this type of scandal “if Pennsylvania did not elect judges in expensive, partisan elections. Despite growing public concern about judicial elections, Pennsylvania remains one of only six states that elect all judges in partisan elections.” However, according to a release issued by Pennsylvanians for Modern Courts, Pennsylvania’s House Judiciary Committee voted last week to table legislation to move toward merit selection of appellate judges.

Lynn A. Marks and Shira J. Goodman, Judicial Elections: It's Time to End Them in Pennsylvania, Patriot-News, June 5, 2012.

7.            During the 2012 general election, Arizona voters will face a referendum to change the merit-based selection system currently used to choose judges for the state Supreme Court, Court of Appeals, and the trial courts in the two largest counties. According to Capitol Media Services, “Proposition 115 would sharply alter the process voters approved in 1974 which has special screening panels review would-be judges,” and would give the governor greater latitude in selecting judges. Although the Arizona Judges Association backs Proposition 115, some judges and attorneys have raised concerns that the measure gives too much control to the governor.

Howard Fischer, If Passed, Proposition Would Give Ariz. Governor More Power in Selecting Judges, Capitol Media Services, June 5, 2012.