Brennan Center for Justice

Andrew Cohen has a piece in the Atlantic, the first of a three-part series, “on how the authority and integrity of state court judges are being imperiled by radical legislation, political campaign contributions, and judicial elections.” Cohen writes, “For centuries, we’ve been taught that, when we go to court, we will find a fair, unbiased judge who will weigh the evidence and evaluate the law without fear or favor. We have been told that the mere appearance of judicial impartiality is a vital part of the due process guarantees of the Constitution. This has always been a bit of a lie. The playing field always has been tilted toward entrenched interests. But now the gulf between what impartial justice is supposed to look like and what it actually is for hundreds of millions of Americans is vast and widening. And no one seems willing to stop it, either.” The first part of the series looks at efforts by conservative lawmakers to strip power and authority from state courts, including through legislative measures restraining the authority of judges to perform core judicial functions, efforts to create new constitutional tribunals, the use of impeachment power against judges who make unpopular rulings, and changes to judicial selection. Cohen’s analysis says, “The aforementioned lawmakers, who seek to limit the power of judges to decide cases, are the players seeking to preclude the ‘umpires’ from making certain calls on the field. The legislators who seek to impeach judges for particular rulings are the players seeking to have ‘umpires’ fired for calls with which they disagree. And the partisans who seek to rig judicial selections are the players who want to pick and chose which umpires get to play the game. How would you like to be on the ‘other’ team?” The article concludes, “The question hundreds of millions of Americans now face, whether [they] know it or not, is whether they are comfortable allowing their own lawmakers to push those judges out of the way in the name of high ideology or low partisanship.”

The National Organization for Marriage has increased their presence in the Iowa judicial retention election with a new television ad attacking Justice David Wiggins for his role in the unanimous 2009 Iowa Supreme Court decision legalizing marriage for same-sex couples. This is just the latest group to weigh in on Justice Wiggins, who was recently criticized by former Pennsylvania Senator Rick Santorum and Louisiana Governor Bobby Jindal. An op-ed against Justice Wiggin’s retention, in the Des Moines Register, argues that “Our Constitution is designed to restrain those overreaching officials, but it depends on ‘We the People’ to enforce it. When those officials violate our constitutional restraints, we have a duty to future generations, and to ourselves, to replace those officials. A ‘no’ vote on Justice Wiggins is a vote for our freedoms.” Another op-ed, this one in the Iowa City Press-Citizen, argues in favor of Justice Wiggins, stating: “We’re a fair-minded state. When Iowa’s Supreme Court Justices ruled the Varnum case in favor of marriage equality, they reaffirmed that all Iowans have equal protection under our state’s constitution. Civil marriage equality has meant that my two moms — and loving and committed couples like them all across the state — finally have the dignity of fair and equal treatment under the law. Iowans support equality, and we’re proud the Supreme Court protected it… It will be a proud day in Iowa when on Election Day voters say yes to protect our impartial judicial branch. But it’s our courts and our judicial system. We can’t do this alone. Please remember to flip your ballots on Nov. 6 and vote to protect our courts.” A poll released by the Des Moines Register shows 49% of likely voters polled will vote to retain Justice Wiggins, while 41% will vote to remove him from office and 10% are undecided or intend not to vote on the question. This poll puts Justice Wiggins in a more favorable position than his three colleagues who lost their 2010 retention elections. A mid-September poll in 2010 indicated that 31% of voters favored retention for all three justices up for retention, 12% favored retention for one or two of the justices, and 29% favored removal of all three.

 

The New York Times published an editorial this week on the “attempted hijacking of what are supposed to be nonpolitical retention elections.” The editorial focused on the Florida retention election, where the Florida Republican Party and other outside groups have publicly come out against three Supreme Court justices up for retention. The editorial states, “The barrage began in June when the state’s Republican governor, Rick Scott — who would name the judges’ replacements if they lost — ordered up a phony and politically motivated investigation into the judges’ innocuous use of court personnel to notarize required financial disclosure filings. Meanwhile, an advocacy group financed by the Koch brothers, Americans for Prosperity, has begun running television advertisements in several Florida cities criticizing the court’s ruling” striking from the ballot “a misleadingly worded constitutional amendment designed to allow the state to opt out of federal health care reform.”  The editorial concludes that the Justices’ “retention is by no means assured. What is absolutely certain is the damaging message of intimidation that would flow from their removal.”

 

North Carolina’s public financing program for judicial elections has been popular since its creation in 2004, and all of the candidates this year have received public funds. However, an article by Facing South points out that one of the candidate’s biggest financial backers opposes the public financing system: “State campaign finance records show Civitas Action ran $72,000 worth of radio ads supporting [Justice] Newby in August and September of this year.” According to the article, “Civitas has long led the charge to dismantle the public campaign fund and all publicly-backed election programs. Civitas leader Francis de Luca has castigated such programs as ‘welfare for politicians’ and called for their elimination. Brian Balfour, policy director at Civitas, has gone even further, publishing dozens of incensed commentaries that call for ‘ridding NC of the unjust practice of using taxpayer dollars to finance political campaigns,’ and attacking the entire idea as an ‘immoral system of coercion’ and ‘insidious ... violation of liberty.’” The article asks, “Will Civitas be asking Newby to return his $240,100 ‘welfare’ check to North Carolina taxpayers?”

An article on Remapping Debate discusses the effects that budget cuts across the country are having on civil cases, particularly cases involving businesses. The article states: “Due to increasingly severe budget cuts, more and more state court systems have become dysfunctional in the last few years. According to data from the National Center for State Courts… 42 state legislatures reduced their state court budgets between 2008 and 2011. A variety of cutbacks ensued — including staff layoffs, reductions in courthouse hours, and pay cuts for courthouse personnel — and many state judicial systems have consequently slowed down… The NCSC’s data show that since 2008, 29 states have seen an increase in case backlogs, and 15 states have experienced an increase in the time it takes for cases to go from filing through resolution.” However, the article points out that while these increased costs hit businesses particularly hard because they rely on the courts more than anyone else, many state legislators who describe themselves as pro-business do not see a connection between court funding and business losses: “Michael Bennett, a Republican state senator in Florida who sits on the state’s budget committee… holds himself out as pro-business. On his website, he explains that this was a motivation for his seeking office: ‘I saw the government putting up roadblocks to business and felt I could make a difference.’ But, despite Florida’s courts experiencing reduced operating hours, increased fines and backlogs, and staff layoffs, Sen. Bennett doesn’t think the courts are underfunded. Neither does he believe that court delays in resolving business disputes present an obstacle to attracting business to the state. Bennett said that he has experienced court delays in connection with his own businesses, but insisted that those delays were due to poor docket management and judges’ lenient granting of extensions to lawyers, not lack of funding.”