Fair Courts E-lert: Public Financing Push in West Virginia

February 5, 2013

Article Illuminating President Obama’s Nomination Record
The San Francisco Chronicle featured an article highlighting President Obama’s judicial nomination record, specifically citing new figures on his nomination of former prosecutors. According to data from the Alliance for Justice, “Obama has nominated former prosecutors more often than either Ronald Reagan or George W. Bush. In Reagan’s two terms, 40.8 percent of the judges he appointed had once been prosecutors. Bush, who like Reagan sought to move the judiciary in a more conservative direction, chose ex-prosecutors for 44.7 percent of his judicial appointments. The figures were 37.3 percent for Bush’s father, George H.W. Bush, and 40.7 percent for Bill Clinton. Obama… has appointed or nominated 219 federal judges, of whom 100 - 45.7 percent - were former prosecutors[.]” The article points to Obama’s record on racial and gender diversity in judicial nominations, but notes criticism that Obama’s nominees have lacked professional diversity and that prosecutorial experience is often evidence of a conservative ideology. According to a professor quoted in the article, “‘Whether someone is more law-and-order-oriented tends to (show) whether that individual is more conservative overall’…One apparent reason for Obama’s judicial selections is a belief that former prosecutors will have an easier time winning Senate confirmation.”
Source: Bob Egelko, Obama Nominations Heavy On Ex-Prosecutors, San Francisco Chronicle, February 3, 2013.

New Senate Sub-Committee for Federal Courts and Bankruptcy
According to the Blog of Legal Times, “The Senate Judiciary Committee created a new subcommittee this year to specifically oversee the federal courts and the nation’s bankruptcy system, including administration and management, judicial rules, and the creation of new judgeships.” The article continues, “Last session’s Administrative Oversight and the Courts Subcommittee has been split into two separate subcommittees for this session. Senator Richard Blumenthal will chair the new Oversight, Federal Rights and Agency Action Subcommittee, while Senator Chris Coons (D-Del.) will become the chairman of the new Bankruptcy and the Courts Subcommittee.” Senator Coons is quoted as saying: “Our federal courts have traditionally been the last bastion for many Americans to assert their civil rights, but recent federal court decisions have made it harder to not only enforce federal civil rights, but also rights that people may have as a consumer or as an employee under state law…That has to change.”
Source: Todd Ruger, New Senate Subcommittee to Focus on Federal Courts and Bankruptcy System, Blog of Legal Times, February 1, 2013.


Public Financing Push in West Virginia
West Virginia’s State Election Commission has requested that the Legislature “continue to offer public funds to its Supreme Court candidates, and make permanent a pilot program offering such alternative financing from last year’s race,” according to the Associated Press. According to the article, “The pilot tapped an account maintained by the state auditor’s office for its funding, and around $2.6 million remains. That money will return to the state’s general revenue fund when the budget year ends June 30, if the pilot expires without being renewed.”
Source: Lawrence Messina, W.Va. Election Officials Want Permanent Public Financing Program for Supreme Court Candidates, Associated Press via The Republic, January 31, 2013.


American Constitution Society: Is Our Dysfunctional Process For Filling Judicial Vacancies An Insoluble Problem?
A new issue brief from the American Constitution Society, by Russell Wheeler, “documents the crisis affecting our federal courts: the high number of vacancies on the bench, the deteriorating conditions that make a federal judgeship less attractive to talented attorneys, and the delays in getting those nominated confirmed.” The brief proposes “near-term fixes such as the White House’s publicizing the status of its negotiations with senators over possible nominees, and longer-term remedies, such as the creation of a bipartisan task force to propose changes that would be debated in the 2016 elections and adopted by the next administration and incoming 2017 Senate.”
Source: Russell Wheeler, Is Our Dysfunctional Process For Filling Judicial Vacancies An Insoluble Problem?, American Consitution Society, January 24, 2013.

Judicial Impartiality, Campaign Contributions, and Recusals: Results from a National Survey
A new article by James L. Gibson and Gregory Caldeira is featured on the Social Science Research Network. The abstract says, “Legal scholars have of late become quite worried about how citizens form their impressions of the fairness of courts. This concern reflects the changing environments of courts, especially elected state courts, and what might generally be termed the politicization of the judiciary. The purpose of this article is to assess the effectiveness of judicial recusals at rehabilitating a court/judge tainted by perceived conflicts of interest associated with campaign activities by litigants. Based on an experimental design embedded in a nationally representative sample, our data first confirm that direct campaign contributions undermine perceptions of fairness; but, unexpectedly, so, too, does independent support for the candidate. Most important, recusal does indeed restore some perceived fairness; unfortunately, the repair to public perceptions is not to the level enjoyed when no conflict of interest exists. In a post-Citizens United world, these findings therefore point to significant threats to the legitimacy of elected state courts.”
Source: James L. Gibson and Gregory Caldeira, Judicial Impartiality, Campaign Contributions, and Recusals: Results from a National Survey, Social Science Research Network, March 2013.