Brennan Center for Justice

1.            An American Judicature Society study released last week finds that “Judicial Nominating Commissioners believe the merit selection process is fair, effectively promotes highly-qualified individuals for service on the bench, and appropriately restrains the power of the governor while minimizing politics in the judiciary. The research also indicates Commissions are becoming more systematic in their work, with more codified rules governing decision-making processes, more transparency, diversity, and self-conscious and intentional efforts to remove political influences from the deliberations.”

AJS Releases Results of Largest-Ever Survey of Judicial Nominating Commissioners, American Judicature Society, March 6, 2012.

2.            Last week the Florida Senate passed a bill that would give the governor greater control over judicial nominations, by letting him remove a majority of members of judicial nominating commissions.  Critics contended the legislation would politicize the commissions.  Senator Arthenia Joyner, who voted against the bill, claimed it “gives too much power to a governor who said he wanted people who thought like him to sit on the judiciary of the state of Florida.”  Ultimately, however, as the Bradenton Herald reported, the legislation “appeared dead” because Florida’s state House and Senate passed differing proposals and are unlikely to reconcile the versions before the legislative session concludes.

Dara Kam, Senate Sends Measure Giving Governor Control over JNCs Back to the House, Palm Beach Post, March 7th, 2012; Katie Sanders, Senate Protects Charlie Crist Appointees on JNCs From Being Removed by Rick Scott, Miami Herald Blog, March 6, 2012; Katie Sanders, Bill to Give Fla. Gov. Rick Scott More Power to Pick Judges Stalls, Bradenton Herald,  March 8, 2012.

3.            Judge William O’Neill won last week’s Democratic nomination for Ohio Supreme Court and will face incumbent state Supreme Court Justice Robert Cupp in the fall.  Ohio has experienced some of the nation’s most expensive judicial elections—it ranked second for total spending, at more than $29 million, in the decade between 2000 and 2009, according to The New Politics of Judicial Elections.  While this year’s primary did not feature high levels of campaign spending, it was nonetheless contentious. A Hamilton County judicial panel ruled that O'Neill, who previously sat on the 11th District Court of Appeals, had violated the judicial code of conduct by implying to voters he was still on the bench.  The Associated Press reported that O’Neill promised to change the statements in question on his website.

Julie Carr Smyth, Former Judge Wins Ohio Dems' High Court Primary, Associated Press, March 7, 2012

4.            Tomorrow is the Republican primary for Alabama Supreme Court.   Yet this year, as in Ohio, Alabama has not seen the high levels of judicial election spending typically exhibited in the state’s judicial elections.  The Birmingham News suggests the low levels of campaign spending in the “2012 election may signal that change is coming to Alabama's reputation as the most expensive state in the nation to run for Supreme Court.”

Eric Velasco, Alabama Supreme Court Races see Decline in Campaign Contributions, The Birmingham News, March 11, 2012.

Federal Judicial Selection

5.            A Sacramento Bee editorial criticizes Senate Republicans for using President Obama’s judicial nominations “as pawns in their political chess match.”  According to the editorial, “[t]here are too many vacancies on federal courts in California and other states, where there aren’t enough judges to handle the caseloads” to justify Senate inaction on the 14 nominees who received bipartisan support in the Senate Judiciary Committee.

Editorial: Justice Delayed as Judge Nominees Wait, Sacramento Bee, March 6, 2012.

Court Resources

6.            The Palm Beach Post reported that while Florida’s courts will receive a one-time stipend of $4 million to address the state’s foreclosure backlog, the state’s 2012-2013 judicial budget was cut by 7 percent.  Palm Beach County Clerk of Courts Sharon Bock explained that the decrease in court funding will create “a significant slowdown in processing civil court cases.”  Budget shortfalls continue to affect courts across the country.  According to the Los Angeles Times, over 350 employees will lose their jobs as a result of the latest cuts to the LA court system.  Presiding Judge Lee Edmon described the cuts—which come after the court already reduced staff by 10 percent over the last two years—as "extraordinary measures, never before seen in the Los Angeles Superior Court.”

Kimberly Miller, Fla. Budgets $4 Million to Hire More Judges to Clear Foreclosure Backlog, Palm Beach Post, March 8, 2012, Jay Reeves,Finances Threaten Delay in Prof's Ala Murder Trial, Associated Press, March 8, 2012; Maria Dinzeo, Nation's Biggest Court Dealt 'Crippling Blow’,

Courthouse News Service, March 5, 2012; Andrew Blankstein, Budget Cuts: L.A. County Court System to lay off 350 Employees, L.A. Times, March 6, 2012; Richard Dymond, Court Clerks May lay off Staff to Satisfy State Budget Cuts, March 7, 2012.

Recusal

7.            A New York Times editorial pointed to the case of federal appeals Judge Loren Smith—who was recently required to recuse himself from a case after discovering his wife owned shares of the parent company of two parties to the suit—to illustrate the need for independent review of judicial recusal requests.  According to the editorial, the U. S. Supreme Court should “adopt a sensible recusal process” that would mandate independent review of recusal motions and ensure all decisions were accompanied by written opinions.

A Way Forward on Judicial Ethics, New York Times, March 11, 2012.

8.            An Isthmus article by Bill Lueders from the Wisconsin Center for Investigative Journalism highlights the ongoing debate in Wisconsin over judicial recusal rules.  The piece discusses how neither the state’s highest court nor the legislature can come to an agreement about the need for stricter recusal standards.  At the same time, however, the article notes that “[t]he recusal debate has gained traction from the runaway spending on Wisconsin's Supreme Court elections, especially by outside special interests.”

Bill Lueders, Wisconsin Supreme Court out of Step with National Standards on Recusal,Isthmus, March 12, 2012.

Miscellaneous

9.            The Windy City Times announced that the three Iowa Supreme Court Justices who were ousted in the 2010 judicial retention vote will be awarded the John F. Kennedy Profile in Courage Award in May in celebration of their “political courage.”  The special-interest driven campaign to remove the Justices from the bench for their participation in a controversial same-sex marriage ruling raised concerns among court advocates about the politicization of the judiciary.  Meanwhile, a Tampa Bay Times editorial expressed concern that Circuit Judge Jackie Fulford is being attacked for doing her job.  Last week, Judge Fulford blocked a 2011 law requiring state workers to spend 3 percent of their pay to underwrite Florida’s pension program.  According to the editorial, “Tuesday’s ruling that cutting public employee salaries to help pay for pensions is unconstitutional is not the result of an activist judge as some Republicans complain. . . It reflects the failure of the executive and legislative branches to recognize their limits and the role of an independent judicial branch.”

Iowa Justices to Receive Prestigious Kennedy Award for Marriage Ruling, Windy City Times, March 6, 2012; Legislature Overreaches, Public Pays the Bill, Tampa Bay Times, March 8, 2012; Kathy J. Maus: Attacks on Judge are Wrong, Tallahassee Democrat, March 7, 2012.

10.          Writing in the New York Times, Judge J. Harvie Wilkinson III of the Fourth Circuit Court of Appeals expressed concern over the politicization of the judiciary.  As Judge Wilkinson notes, “BOTH liberals and conservatives have the American Constitution in the cross hairs. They assault the Constitution in their different ways, each with damaging effects on our nation. Conservatives attack the courts on one hand and seek to have them advance their activist agenda on the other. Liberals, when it suits them, embrace rights that have not been enumerated in the Constitution and cry for restraint only when their pet bills come under fire. The result is a national jurisprudence whetted by political appetite, with our democratic values as the victims.”

J. Harvie Wilkinson III, Cry, the Beloved Constitution, New York Times, March 11, 2012.