Brennan Center for Justice

FEDERAL JUDICIAL SELECTION

Senator Rubio Blocks Nomination to District Court
Senator Marco Rubio (R-FL) has withdrawn his support for federal judicial nominee William Thomas and is now blocking his nomination, reports Jennifer Bendery in the Huffington Post. Senator Rubio originally recommended Thomas to President Obama in late 2012 to fill a vacancy in the U.S. District Court for the Southern District of Florida. The vacancy has been declared a judicial emergency by the Administrative Office of the U.S. Courts, and has been open for more than 18 months. If confirmed, Thomas would be the first openly gay black man to serve as a federal judge. “A Rubio spokeswoman told The Huffington Post on Wednesday that the senator decided to pull his support after ‘a thorough review’ of Thomas' record, including two cases that Thomas handled as a Miami-Dade circuit judge.” After reviewing the materials provided to Senator Rubio’s office, however, Bendery argued that the record “suggests nothing egregious in either case.”
Source: Jennifer Bendery, Marco Rubio Blocks Gay Black Judge's Nomination To Federal Bench, Puzzling Everyone, Huffington Post, September 26, 2013; Lizette Alvarez, Rubio Withdraws Support for Gay Black Judge’s Nomination to the Federal Bench, The New York Times, September 23, 2013.

STATE JUDICIAL SELECTION

Kansas Senate Minority Leader Criticizes Delayed Swearing-In of New Appeals Court Judge
Kansas Senate Minority Leader Anthony Hensley (D-19^th District) has expressed concern that the swearing-in of Court of Appeals Judge Caleb Stegall is being delayed so that he can avoid a state-wide retention vote in November 2014, according to the Associated Press. Stegall was confirmed to the state Court of Appeals by the Kansas Senate in early September after a controversial nomination process. In Kansas, new judges face a retention vote in the first general election to occur after they have been on the bench for at least one year. If Stegall took office before November 4^th, he would face a retention vote in the November 2014 election. But his swearing-in has been scheduled for January 3, 2014, moving his retention vote to November 2016. “Is it possible that what they’re trying to do is to distance themselves from the controversial nature of the appointment itself?” Hensley commented. “That’s exactly what it suggests to me.” The Associated Press stated, “Brownback spokeswoman Sara Belfry said the governor’s office wasn’t involved in scheduling Stegall’s swearing-in ceremony. Court officials have said the timing was dictated by budget issues and the need to remodel space at the Kansas Judicial Center near the Statehouse for a new judge’s suite.”
Sources: John Hanna, New Kansas appeals court judge’s swearing-in timing questioned, Associated Press via Kansas City Star, September 23, 2013; Fair Courts E-lert: Kansas Senate Confirms Court of Appeals Judge, Brennan Center for Justice, September 5, 2013; Fair Courts E-lert: Supreme Court Ethical Standards Proposed, Brennan Center for Justice, August 8, 2013.

ACCESS TO JUSTICE

Michigan’s Foreign Language Interpreter Policies Face Criticism
A new series of Michigan court rules setting standards for the provision of interpreters to people with limited English proficiency (LEP) has generated controversy. Concerned with Michigan’s interpreter policies,  the U.S. Department of Justice sent a letter to the Michigan chief justice and court administrator in August 2010 to “provide greater clarity regarding the requirement that courts receiving federal financial assistance provide meaningful access for LEP individuals.” The National Review Online details a number of concerns laid out in the letter, including “limits on the types of proceedings for which interpreters are guaranteed; failing to ‘provide language assistance to non-party LEP individuals whose presence or participation is necessary or appropriate’; charging interpreter costs to non-indigent parties; and failing to provide language services for court-managed operations outside the courtroom.”

The Michigan Supreme Court released an order two weeks ago responding to the letter and adopting a uniform set of rules governing interpretation services in Michigan courts. Among other things, the new rules require LEP individuals to pay for interpreters if they make more than 25 percent of the federal poverty level, although the court may make exceptions to the fee requirement. Chief Justice Robert Young says the new rule “ensures that every court in our state will provide meaningful access to our legal system.” Justice Steven Markman dissented from the order, raising concerns with the Department of Justice’s objections to the prior rules. “Perhaps most troubling to me,” he said, “is that the demands of the Department are reflective of an increasingly familiar pattern by which this and other state supreme courts have routinely been ‘commandeered’ or ‘dragooned’ by federal agencies to enact new court rules, not as the product of any exercise of independent judgment by the courts themselves that such rules are warranted, but as the product of financial threats by these agencies.”

The Justice Department sent a response to the new rules to the Michigan Attorney General’s office on September 17^th, concerned that they will result in national origin discrimination. The letter specifically takes issue with the fee provision, stating, “…[T]the Court has created a new barrier to meaningful access for certain court users in the form of a surcharge, akin to a tax, based on English language ability.” The letter goes on to say, “Meaningful access to state courts in Michigan can be achieved only with additional improvements to Rule 1.111 and with actions that ensure nondiscriminatory implementation statewide.”
Sources: Thomas E. Perez, Letter to Michigan Chief Justice/Court Administrator, United States Department of Justice, August 16, 2010; Ed Whelan, DOJ vs. Michigan on Foreign-Language Interpreters—Part 1, National Review Online, September 26, 2013; Order: Adoption of Rule 1.111 and Rule 8.127, Michigan Supreme Court, September 11, 2013; Niraj Warikoo, State courts must provide foreign-language interpreters under new rule, Detroit Free Press, September 11, 2013; Jocelyn Samuels, Barbara L. McQuade, and Patrick Miles, Letter to Mr. Matthew Schneider, U.S. Department of Justice, September 12, 2013.

INDEPENDENT JUDICIARY

Ohio Representative Calls for Removal of District Court Judge
Ohio State Representative John Becker (R-56^th District) is calling for the impeachment of U.S. District Court Judge Timothy Black after Judge Black handed down a ruling recognizing an out-of-state marriage of a same-sex couple, according to an editorial on cincinatti.com. Representative Becker claims Judge Black violated Ohio’s constitutional ban on same-sex marriage by ruling in favor of a gay couple that had married in Maryland, where marriage of same-sex couples is legal. Judge Black allowed one spouse, who was terminally ill, to be listed as married on his birth certificate and for his husband to be listed as his surviving spouse. The editorial criticized the call for impeachment, arguing, “Because [Becker] disagrees with Black’s decision, he wants him to lose his job. This is why federal judges are given lifetime appointments: so they have the freedom to interpret the law without concern for political repercussions. Becker accuses Black of ‘malfeasance and abuse of power.’ This accusation is false; Black is doing exactly what we ask judges to do.” Judge Black’s ruling comes on the heels of the United States Supreme Court’s decision in June granting federal recognition to same-sex marriages, a decision the editorial describes as creating “a confusing [legal] landscape.”
Sources: EDITORIAL: Impeach judge for gay marriage ruling? Get a grasp, cincinatti.com, September 27, 2013; United States v. Windsor Resource Page, SCOTUS Blog.