Brennan Center for Justice

INDEPENDENT JUDICIARY

Texas Supreme Court Justice Discusses Judicial Elections
In an Atlantic article last week, author Andrew Cohen detailed a candid conversation he had with Texas Supreme Court Justice Don Willett concerning judicial elections. Cohen and Justice Willett discussed the ways in which judicial campaign contributions can insert politics into the courts and whether they impact the impartiality of judges.  Cohen’s questions were prompted by an American Constitution Society study, released earlier this summer, which concluded, “The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court.” Justice Willett sees many flaws with Texas’s constitutionally-mandated partisan judicial elections. “I haven't studied the ACS report’s findings or methodology,” he says, “but I understand 100 percent the suspicion that donations drive decisions. That skepticism siphons public confidence, and that's toxic to the idea of an impartial, independent judiciary. I can only speak for myself and say that it flatly doesn't happen.” Adam Skaggs, senior counsel at the Brennan Center, spoke with Cohen about Justice Willett’s comments.  He said, “With respect to the basic question of whether money/contributions drive his or his peers' decisions, while we would not suggest we think he himself is influenced or approaches any cases in bad faith, obviously the public strongly believes there is a correlation—and that perception is itself damaging to the judiciary, whether or not any judges consciously allow the knowledge of contributors to seep into their decision making.”
Sources: Andrew Cohen, An Elected Judge Speaks Out Against Judicial Elections, The Atlantic, September 3, 2013; Joanna Shepherd, Justice at Risk, American Constitution Society for Law and Policy, June 2013.

BUDGET

Sequester Continues to Hit Courts Hard
A new report released by the New York County Lawyers' Association warns that New York City and Long Island courts are "on the brink of crisis." The Wall Street Journal reports, “The SDNY [Southern District of New York] handles some of the most high-profile federal cases in the country, from terrorism trials to insider-trading cases that have toppled Wall Street titans. According to the bar association's findings, the overall budget for the SDNY is now lower than it was in 2008, minus rent paid to the General Services Administration, while the 2013 budget for the EDNY [Eastern District of New York] is lower than it was in 2005.” One significant concern is that of courthouse security. As security officers work fewer hours and security equipment has been reduced, this has created “a substantial risk to the safety and security of judges, employees, jurors, and litigants,” according to the report.

Chief Judge Gerald E. Rosen, an appointee of George H.W. Bush who sits in the Eastern District of Michigan, is particularly worried about the impact of budget cuts on pretrial and probation services, according to The Atlantic. Many of these services have been cut in the sequester, making it more likely that offenders will re-offend, and then return to prison. Rosen argues, “What my fear is that if we don't have the tools available to intensively supervise folks pretrial and after they come out, on supervised release[], invariably we are going to expose the community to danger.”
Sources: Jennifer Smith, Federal Courts 'Crisis' Seen Due to Cuts, The Wall Street Journal, September 5, 2013; Report on the Continuing Effect of Judicial Budget Cuts on the U.S. District Courts for the Southern and Eastern Districts of New York, New York County Lawyers’ Association, September 4, 2013; Andrew Cohen, Another Federal Judge Speaks Out Against Sequester, The Atlantic, September 6, 2013.

STATE JUDICIAL SELECTION

Timetable May Be Beneficial for New Jersey Judicial Selection Process
In light of recent controversies surrounding New Jersey’s judicial confirmation process, in which judges are nominated by the governor and confirmed by the Senate, Carl Golden, analyst at the William J. Hughes Center for Public Policy, published an op-ed arguing for a nomination timetable. In recent years, New Jersey has faced a series of highly politicized judicial confirmation battles. After Governor Chris Christie (R) chose not to renominate Associate Justice John Wallace in 2010, marking the first time in New Jersey history that a sitting justice was not reappointed, Senate Democrats responded by refusing to confirm Wallace’s replacement. Since that time, the Senate has blocked or delayed several subsequent nominees, and Christie recently chose not to renominate another sitting justice because he said he did not want to subject her to unfair questioning. Golden argues that a timetable could help to eliminate much of the tension in the nomination process. Previous proposed amendments, which were unsuccessful, attempted to establish a 45-60 day time period for Senate confirmation. If the Senate did not vote on the nominee within this timeframe, the candidate would be automatically confirmed. “Imposing a timetable would strengthen the governor’s hand, allowing him or her to simply wait out the Senate until the specified time expires and the nominee is approved,” says Golden. “At the same time, the Senate would gain credibility and stature by acting in the spirit of the ‘advice and consent’ provision of the constitution and fulfilling what the public sees as legislators’ sworn obligation: casting a vote for or against a gubernatorial nominee in the open and in full view of voters rather than hiding behind an unwritten and undemocratic tradition.”
Source: Carl Golden, Opinion: N.J. system of judicial appointments with senatorial courtesy is 'ripe for stalemate’, Times of Trenton via nj.com, September 5, 2013.

RECENTLY PUBLISHED WORKS

New Book Published About Caperton v. Massey
Greg Schneider of the Washington Post recently reviewed Laurence Leamer’s new book, “The Price of Justice: A True Story of Greed and Corruption.” In his book, Leamer details the relationship between Hugh Caperton and Don Blankenship, which eventually lead to the landmark case Caperton v. A.T. Massey Coal Company. After Caperton sued Blankenship, claiming he cancelled a contract that lead to his company’s bankruptcy, Blankenship spent nearly $3 million to elect Justice Brent Benjamin to the West Virginia Supreme Court. Justice Benjamin eventually joined the court majority that overturned the verdict against Blankenship. While the Caperton case is famously known for concluding that the due process clause required Justice Benjamin’s recusal, Leamer pays particular attention to the local people who were affected by the business dealings between Caperton and Blankenship. “As he walked these coarse streets, he recognized that the Caperton case was not really just about Hugh Caperton and the Harman mine.” Leamer writes of Caperton’s attorney Dave Fawcett. “It was about this region and what had gone wrong.”
Sources: Greg Schneider, ‘The Price of Justice: A True Story of Greed and Corruption’ by Laurence Leamer, The Washington Post, September 2, 2013; Caperton v. Massey, Brennan Center for Justice, June 8, 2009.