This Week in Fair Courts – February 14

Here is the Brennan Center’s weekly round up of Fair Courts news, where we recap stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary. It is a summary of the Brennan Center’s Fair Courts E-lert, which goes out weekly and is available on our website.

The Federal Judiciary

• “Three appointments over three years to get a judge with impeccable credentials confirmed to the federal bench? That’s not advise and consent. That’s absurd.”  An Oregonian editorial laments the glacial pace of judicial nominations, noting that while Judge Marco Hernandez was one of three federal judges to receive Senate confirmation Monday, nearly 50 additional nominees await action. Federal judges currently retire at a rate of one per week, and there are now over 100 district or circuit court vacancies, compared to the 54 judicial vacancies when President Obama took office.  If the situation is not remedied soon, “people will lose faith in the rule of law,” according to Alex Kozinski, chief judge of the Ninth U.S. Circuit Court of Appeals. Meanwhile, a New York Times op-ed argues that “[t]he vacancy crisis on the federal bench is not a partisan issue. Without enough judges, cases are delayed, lives are disrupted and rights are violated.”

Court Resources

• State court budget constraints are creating another judicial crisis, according to American Bar Association president Stephen N. Zack. “Our courts protect our freedom and our access to justice when we need it. But at the state court level, the courts are neglected, underfunded and backlogged.”  Zack added his voice to those of chief justices around the country who have highlighted shrinking court budgets in state of the judiciary addresses. In a hearing of the ABA’s Task Force on Preservation of the Justice System on Thursday, Chief Justices from across the county reported that funding cuts have created severe backlogs that compromise both civil and criminal cases.

State Judicial Selection

• In the first Wisconsin judicial election under the state’s new judicial public financing system, three of the four Supreme Court candidates have opted into the public funding program. The new campaign finance law provides $100,000 to candidates for the primary and $300,000 for the general election. While candidates may receive additional money if privately funded candidates or outside groups spend heavily, the sole candidate who did not accept public financing in this election, Marla Stephens, is trailing far behind her competitors in campaign receipts.  The conservative Wisconsin Right to Life group is challenging the law in federal court.  Meanwhile, the candidates discussed their views on public financing in a recent Wisconsin State Journal article.
• “Big money in judicial elections is a scandal,” according to Missouri Supreme Court Chief Justice William Ray Price Jr., who used his state of the judiciary address to defend the state’s merit selection plan. Better Courts for Missouri, a business-oriented nonprofit, is promoting a bill that would alter the make-up of the appellate judicial commission and require Senate confirmation of judicial nominees. In 2008, the group attempted to get an initiative on the ballot that would have replaced Missouri’s current selection system with direct elections for judges. Chief Justice Price also discussed the state’s need to invest in alternative court programs for nonviolent offenders as a way to decrease its prison population.

Judicial Independence

• Speaking publicly for the first time since the November 2010 election, former Justice Michael Streit – one of three Iowa Supreme Court justices voters removed last year over a unanimous court ruling that permitted same-sex marriage – said he believes the ouster campaign led by social conservatives distorted the state courts’ appeals process. Justice Streit defended the controversial decision and warned that, while none of the three targeted justices spoke out against the political attacks last fall, their defeat at the hands of special interest spending may convince other judges to campaign. According to Streit, judges are “going to have to tell people, I will be fair and impartial, but please, I need $100,000.”

Judicial Misconduct

• The criminal trial of former Luzerne County judge Mark Ciavarella began last week. Federal prosecutors accused Ciavarella of soliciting kickbacks from privately-run detention facilities in return for sending juvenile offenders to the jails. The so-called “cash for kids” scandal rocked the Pennsylvania judiciary last year, and former judge Michael Conahan has already pled guilty to a single count of racketeering conspiracy. Contending that he did not break the law, Judge Ciavarella opted to take his case to trial.

Miscellaneous

• Prosecutors in five Washington counties believe the state Supreme Court’s pro-tem appointment of former Justice Richard Sanders – who narrowly lost his bid for re-election in November – is unconstitutional. The high court extended Justice Sanders’ term for an additional two months, which is allowed “when necessary for the prompt and orderly administration of justice.” The high court unanimously rejected the prosecutors’ requests, while Justice Sanders stated he believes the issue stems from his tendency to issue pro-defense rulings.