Brennan Center for Justice

1.            Two Roll Call articles highlight the ongoing political controversy surrounding federal judicial nominations.  According to Roll Call, Senate Minority Leader Mitch McConnell has decided to block confirmations of all circuit court judges until after the presidential election in November.  Roll Call also notes, however, that Senate Judiciary Chairman Patrick Leahy remains committed to pushing forward with judicial confirmation votes. Senator Leahy stated that he has “yet to hear any good reason why we should not continue to vote on well-qualified, consensus nominees, just as we did up until September of the last two presidential election years."  President Obama recently nominated attorneys Caitlin Halligan and Sri Srinivasan to the United States Court of Appeals for the District of Columbia Circuit. A New Yorker article about the nominees notes that former U.S. Supreme Court Justice Sandra Day O’Connor described Srinivasan—who once clerked for the Justice—as “a wonderful choice.” Yet according to the New Yorker, “given the realities of contemporary confirmation process, Srinivasan’s nomination will almost certainly not even come up for a vote this year.”

John Stanton, GOP Begins Judge Blockade, Roll Call, June 14, 2012; Lisa Mascaro, Over GOP Protests, Senate Confirms Obama Appointee to 9th Circuit, LA Times, June 12, 2012; Jeffrey Toobin, O'Connor and Her Clerk, The New Yorker, June 11, 2012; Dan Friedman, Grassley Chides Kyl in Dispute over Judge, National Journal, June 12, 2012; Emily Pierce, Patrick Leahy Vows to Keep Pushing Judicial Nominees, Roll Call, June 14, 2012.

Judicial Misconduct

2.            According to state Judicial Commission records reviewed by the Milwaukee Journal Sentinel, the Commission “was unanimous in its decision to file an ethics complaint against Justice David Prosser in January, then split 3-3 a month later on whether to reconsider the decision, newly released records show.”  The recently-disclosed records—which were made available online by the Commission last week— include a transcript of Justice Prosser’s appearance before the Commission in addition to Commission meeting minutes which show the initial unanimous vote and the subsequent vote to reconsider the decision.

Patrick Marley and Alison Bauter, Judicial Commission's First Vote on Prosser Complaint Was Unanimous, The Milwaukee Journal Sentinel, June 13, 2012; Records Show Judicial Commission's 1st Vote on Wis. Justice Complaint was Unanimous, The Associated Press, June 13, 2012.

Judicial Reform

3.            According to an Arkansas News commentary, “[i]f Arkansas wants to continue electing judges, it must make plans to keep the elections honest and safe from toxic campaign tactics.”  A report issued last week by the Arkansas judicial campaign reform task force seeks to do just that, and highlights several suggestions for preventing the problems associated with the high cost, special-interest-dominated judicial elections that have been seen in other states over the past decade.  The task force recommended the establishment of a non-profit—independent of the Bar Association and Judicial Council—to publish an online voter’s guide and monitor judicial campaign ads to prevent and counter false advertising.  An Arkansas Times blog about the report notes that the recommendations will be in place for the 2014 judicial elections.

Roy Ockert, Task Force Moves to Protect Judicial Elections from Toxic Campaigning, Arkansas News, June 12, 2012; Max Brantley, An Umpire for Judicial Elections, June 8, 2012.

Attacks on the Judiciary

4.            The Iowa GOP platform approved on Saturday includes a demand that state legislators impeach the remaining Iowa judges who participated in the unanimous 2009 ruling that permitted same-sex marriages in the state. As Plank 13.1 of the platform states, “We believe Iowa and federal legislators should uphold their legislative duties to impeach and remove judges who are not upholding their respective Constitutions. We demand that the Iowa Legislature take action to impeach, and to remove from office, judges for legislating from the bench bypassing the Iowa Constitution as in the recent creation of a ‘so-called right to homosexual marriage.’” Voters rejected the three state Supreme Court justices up for retention elections in 2010 after a special-interest campaign focused on the controversial ruling.

Jennifer Jacobs, Iowa Governor Downplays GOP Party Platform; Here’s the Whole Document, Des Moines Register, June 13, 2012.

Diversity on the Bench

5.            Last Thursday Richmond Circuit Court judges approved Tracy Thorne-Begland for an interim judgeship on the General District Court. Thorne-Begland, who will become Virginia’s first openly gay judge, was rejected by the Virginia General Assembly earlier this year, when conservative legislators opposed his nomination because he supports same-sex marriage and previously challenged the military’s “Don’t Ask, Don’t Tell” policy. The Washington Post reports that last week, Delegate Richard Morris—who previously opposed Thorne-Begland—informed the Republican caucus that he no longer opposed the nominee.  Republican Governor Robert McDonnell and leaders of Richmond’s five largest law firms also expressed their support for Thorne-Begland’s appointment.  However, several Republican lawmakers expressed outrage at the Circuit Court’s action, including Republican Robert G. Marshall, who described it as “highly imprudent and arrogant.”

Laura Vozzella, Richmond Circuit Court Appoints Gay Judge, Washington Post, June 14, 2012; Jim Nolan, Richmond Judges Appoint Thorne-Begland to Bench, Richmond Times-Dispatch, June 15, 2012.