Fair Courts E-lert: Senate Holds SCOTUS Confirmation Hearing; 9th Circuit Judges Criticize Attacks on Courts

March 24, 2017

SUPREME COURT

Senate Holds Supreme Court Confirmation Hearing

This week, the Senate Judiciary Committee held a confirmation hearing for President Donald Trump’s nominee to the Supreme Court, Judge Neil Gorsuch, write Adam Liptak and Matt Flegenheimer for The New York Times. According to the authors, Judge Gorsuch answered Senators’ questions “with practiced generalities on Wednesday, frustrating Democrats who seemed unable to rattle him or pin him down.” They add that “interest in the hearing seemed to wane, and many in the Capitol came to view a confirmation as inevitable.” Some Democratic senators asked Judge Gorsuch about “his commitment to originalism,” with Sen. Dianne Feinstein (D-Calif.) asking the judge “where that approach left women and gays given the understanding of the 14th Amendment’s equal protection clause when it was ratified in 1868.” He replied that “[i]t matters not a whit that some of the drafters of the 14th Amendment were racists. ...The law they drafted promises equal protection of the laws to all persons.” Sen. Sheldon Whitehouse (D-R.I.) argued that “there was a danger that the Supreme Court could be captured by business interests,” to which Judge Gorsuch responded that “[n]obody will capture me.” The committee is expected to vote on Judge Gorsuch’s nomination April 3. 


JUDICIAL INDEPENDENCE

9th Circuit Judges Criticize Attacks on Courts in Travel Ban Dissenting Opinion        

According to Frank Barbash of The Washington Post, five judges “implicitly took President Trump to task for his disparaging comments on judges and the judiciary” in their opinion dissenting from the 9th Circuit’s decision not to rehear an earlier travel ban ruling en banc. The dissenting opinion, written by Judge Jay Bybee and joined by four others, said that they believed the court should have deferred to the administration on the executive order, but also that “[t]he personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse — particularly when they came from the parties.” Although it did not mention Trump by name, the opinion continued “[s]uch personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable.” It concluded, “[t]he courts of law must be more than that, or we are not governed by law at all.” In a concurring opinion in the same case, Judge Stephen Reinhardt also appeared to reference Trump’s comments, writing: “I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them.”


STATE JUDICIAL SELECTION

NC Legislature Overrides Veto on Bill to Reintroduce Partisan Elections

Republicans in the North Carolina Legislature voted to override Gov. Roy Cooper’s (D) veto of a bill that would reinstate partisan elections for state trial courts, writes Matthew Burns for WRAL.com. Trial judges are currently selected in nonpartisan elections, where party labels do not appear on the ballot. Sen. Jerry Tillman (R-District 29) justified the bill, saying “[v]oters tell me they want to know as much as possible about judges. It’s simply a matter of information.” Senate President Pro Tem Phil Berger (R-District 26) echoed Tillman and also criticized the governor for vetoing the bill, saying “[f]or years, Gov. Cooper and his allies have stoked fears of voter disenfranchisement. Yet, when he had the opportunity to actually increase voter involvement, he rejected a measure that the data suggests would do just that.” According to the Associated Press, Cooper said in a message that North Carolina “wants its judges to be fair and impartial, and partisan politics has no place on the judges’ bench.” Rep. Joe John (D-Wake) also argued against the override vote, saying “returning to partisan elections would bring politics back to the court.”

MO Selection System Draws Criticism

The merit selection plan used to select Missouri Supreme Court justices has attracted recent criticism, writes Michael Carroll for the St. Louis Record. James Harris, a political strategist, said that two of the three candidates submitted to the governor by Missouri’s Judicial Nominating Commission for consideration for a seat on the bench were “liberal.” Harris charged that “[t]he Missouri Plan is broken.” Speaker Todd Richardson (R-District 152), said “[t]here’s going to be a lot of interest in reviewing the efficacy of the Missouri plan and whether it still works today to produce the kind of judges the public should expect on the bench” according to Travis Zimpfer of The Missouri Times. Others defended Missouri’s system, including Dana Cutler, the president of the Missouri Bar, who said “[t]he Missouri Plan continues to work for [the people of Missouri] by providing high-quality judges in the least political way while giving voters the final say.” Rep. Gina Mitten (D-District 083) also highlighted that “[t]he purpose of the Missouri Plan was to not politicize our judges... and this argument… does nothing more than further the idea that our judges should be as political as our legislators and that makes no sense.”