Fair Courts E-lert: State Judicial Elections
1. Florida’s judicial retention election has continued to be in the news with judges and attorneys weighing in on the politicization of the judicial system. A new group called Restore Justice 2012 is campaigning against the retention of Florida Supreme Court Justices Fred Lewis, Barbara Pariente, and Peggy Quince. This is unusual in Florida as, according to the Florida Current, “No justice has been kicked off the court in almost 40 years since Florida switched to merit retention votes, instead of competitive elections.” State Supreme Court Justice Peggy Quince, one of the justices on the ballot in November, is quoted by the Tampa Tribune as saying she is made uncomfortable by asking people to vote for her and by the injection of politics into the judicial races: “It’s inappropriate in the sense of, I don’t believe that merit retention was intended for us to look at a few opinions and say, ‘I don't agree’…It was not intended for an intimidation factor. I think this is almost an attempt to intimidate judges into deciding cases the way some group might want it decided.” Jesse Phillips, the President of Restore Justice 2012, is quoted in the same article as saying, “The job description of the judge is to uphold the Constitution…If the judge is not doing that in the mind of the voter, then the voter should vote to remove that judge.” According to the Orlando Sentinel, some attorneys and former judges are worried about money pouring into the state in the form of negative advertising right before the election. The Orlando Sentinel reports that Restore Justice has collected “just north of $60,000, most of it from Miami Beach doctor Allan Jacob. By contrast, according to the Palm Beach Post, “Pariente, Lewis and Quince have raised more than $1 million for their merit retention campaigns — almost all of it coming from the state’s legal community.” Money is also being raised and spent by outside organizations in support of the justices up for retention election. According to the Sentinel, one such group, “Defend Justice from Politics” has “as of last month... reserved more than $528,000 in Orlando television airtime this fall.”
Elaine Silvestrini, State Justice Uncomfortable with Campaigning to Keep Seat, The Tampa Tribune, September 12, 2012; Bill Cotterell, Group Aiming to Oust 3 Justices Starts State Tour, The Florida Current, September 4, 2012; John Kennedy, Supporters of Embattled Justices Offer Civics Lesson In Their Defense, The Palm Beach Post, September 11, 2012; Aaron Deslatte, Defenders of Justices Worry About Sneak-Attacks on Supremes, Orlando Sentinel, September 11, 2012.
Judicial Public Financing
2. A column by Steve Ford in The News and Observer raises concerns about how super PACs will influence North Carolina’s publicly financed judicial elections. The column states, “Potential super PAC influence looms large indeed when candidates’ own campaigns are limited by the rules of public financing, which is meant to curb special interest influence.” In North Carolina, “Justice Paul Newby, seeking a second eight-year term, is challenged by Court of Appeals Judge Sam Ervin IV. Both will accept the $240,100 that the state provides appellate court candidates who raise a threshold amount in private contributions. Once they sign up for the public funds, they can’t accept any more on the private side.” However, the column goes on, “The wrinkle here is that Newby is in line to benefit from independent spending by groups that want Republican conservatives to maintain their 4-3 Supreme Court majority…Advantage, Newby – in a state that recognized the pitfalls in money-soaked judicial elections, but that struggles to hold the line against those who want to buy their own brand of justice.” According to The Daily Reflector, “It…has been reported that the Washington-area group Judicial Crisis Network gave $75,000 to education group Civitas Action, which in turn funded a $72,000 radio advertising campaign” in support of Justice Newby. Judge Ervin, Justice Newby’s opponent, is quoted in the article as stating, “I think it is an unfortunate development that will undermine what we were developing.”
Steve Ford, Judicial Race Has a 'Super' Twist, The News and Observer, September 9, 2012; Ginger Livingston, Supreme Court Race Attracts Attention, The Daily Reflector, September 13, 2012.
Judicial Ethics
3. Louisiana Governor Bobby Jindal’s office is appealing a federal district court ruling that Justice Bernette Johnson, who first joined the Louisiana Supreme Court as an appellate judge exclusively assigned to the Supreme Court under the terms of a voting rights consent decree, should have her years as an appellate judge counted towards her seniority, qualifying her to be the Court’s next Chief Justice (previous e-lert coverage here). One of the state’s attorneys is quoted as saying, “The state’s highest court is constitutionally empowered to interpret the state constitution, specifically the issue of which judge is ‘oldest in point of service on the Supreme Court’ as set forth in (a provision of the state constitution)… The ruling creates confusion regarding whether the federal court believes the consent judgment prohibits the Louisiana Supreme Court from carrying out its constitutional duties.” According to the Associated Press, the same attorney says Jindal has no position on who should be the chief justice: “The issue on appeal is not who should serve as the next chief justice, but whether the Louisiana Supreme Court should be prohibited by a federal court from interpreting the state’s constitution.” A New York Times editorial criticizes the Governor’s decision to appeal the decision, describing it as “a move that utterly disregards the agreement Louisiana made with a group of voters and their advocates in 1992 after the United States Supreme Court found that Louisiana discriminated against blacks in the way State Supreme Court justices were chosen.” The editorial goes on to add, “The attitudes of the governor and the other justices show why voting-rights enforcement remains necessary in Louisiana. The federal courts must carry out the decree by ensuring that Justice Johnson is made chief justice.”
Michael Kunzelman, Lawyer for Gov. Bobby Jindal Explains Appeal in Chief Justice Spat, The Associated Press via The Shreveport Times, September 8, 2012; State Seeks Review of Ruling on La. Supreme Court Justice Bernette Johnson, The Associated Press via the Times-Picayune, September 7, 2012; Editorial, Justice in Louisiana, New York Times, September 10, 2012.
Diversity on the Bench
4. With the confirmation of Judge Stephanie Rose by the Senate, President Obama has set a record for female judicial appointments in a single term with 72 appointments, and also equaled former President George W. Bush’s total female judicial appointments during his two terms in office. Former President Clinton holds the record for the highest number of female appointments with 111, of which 61 were made during his first term. Justice Rose will be the first woman on the U.S. District Court for the Southern District of Iowa, and according to the Huffington Post, “it’s the sixth time that Obama has put a woman on the bench for the first time in various courtrooms.” Senator Tom Harkin said of Judge Rose, “Throughout her career of public service, she has worked to uphold the rule of law, made our neighborhoods safer, promoted civil rights, and advanced the cause of justice… Stephanie Rose will truly be a remarkable federal judge. And at a time when Congress finds little bipartisan agreement, her strong confirmation vote is a testament to those qualifications.”
William Petroski, Stephanie Rose Confirmed as First Female Federal Judge in Iowa’s Southern District, Des Moines Register, September 10, 2012; Amanda Terkel, Obama Appoints Record Number Of Women Judges To Federal Bench, Huffington Post, September 11, 2012; Trish Mehaffey, C.R. Federal Prosecutor Rose Confirmed As Judge, The Gazette, September 10, 2012.
5. Indiana’s Governor Mitch Daniels has named Justice Loretta Rush to the Indiana Supreme Court. She is the only woman currently sitting on the Court, the second woman ever appointed to the Court, and the first woman to serve on the Court since 1999. The governor is quoted in the Indianapolis Star as saying that he “wasn’t oblivious to the fact that this (gender diversity) was not already a factor of our superb Supreme Court,” but “[q]uality first, and factors like (gender) can be tie-breakers. I wouldn’t want anyone to think that that really was a necessary factor here. I do believe she was the clearly best available choice and I’m totally comfortable with it.”According to an article distributed by the Associated Press, “Many female attorneys and legislators, and at least two male former justices, had called on Daniels to pick a woman for the court, saying it needed greater diversity. Three of the current justices are white, and one is black.”
Rick Callahan, 1st Woman Named To Ind. Supreme Court Since 1999, Associated Press via The San Francisco Chronicle, September 14, 2012; Mary Beth Schneider, Gov. Daniels Names Loretta Rush to Indiana Supreme Court, The Indianapolis Star, September 14, 2012.
Judicial Selection
6. Arizona voters are going to have the chance to weigh in on judicial selection this November with a ballot initiative that would amend the judicial selection procedure in Maricopa, Pima, and Pinal counties. According to the Arizona Republic, “The ballot measure, a result of intense negotiations among many stakeholders, is known as the ‘great compromise.’ It tries to balance the interests of legislators who wanted to return large counties to a process of electing judges like their smaller counterparts with those of a legal community that sought to preserve the current merit-selection system for large counties, where most judicial activities take place.” The article also cites opposition to the measure within Arizona’s legal community, stating that “a significant portion of Arizona's legal community opposes the constitutional amendment, saying it would create opportunities for politics to influence the state’s judicial system.” An opinion piece in the Tucson Citizen urges people to vote no: “While purporting to retain the merit selection system it in fact guts it. The proposed changes give the governor extraordinary power in selecting judges. It dilutes the power of the Bar in the nominating process and increases the number of nominees to eight, which, considering the paucity of applications for most judicial vacancies, essentially insures that every application will make it to the governor’s desk… In other words, it takes the merit out of the merit selection process.”
Michelle Ye Hee Lee, Proposition Would Give Arizona Governor More Power In Judge Selection, The Arizona Republic, September 17, 2012; Mark B. Evans, Vote No on Prop. 115 – Judicial Selection Reform, The Tucson Citizen, September 14, 2012.
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Correction: The September 10, 2012 e-lert erroneously suggested that the Florida Bar had criticized a campaign opposing the retention of three Supreme Court justices. The criticism was in fact made by 23 former Florida Bar presidents. We apologize for any confusion, and please click here for corrected language.
