Fair Courts E-lert: Judge Orders Justice Department to Explain Obama's Comments

April 9, 2012
Feature Story

1.            Debate over President Obama’s discussion of “judicial activism” in conjunction with the U.S. Supreme Court’s oral arguments over the Affordable Care Act has been as heated as discussions about the possible outcome of the case.  During a Rose Garden news conference, Obama warned that the court’s overturning his health care law would be an “unprecedented, extraordinary step.” While that point of view was also expressed by several others, including the New York Times editorial board, election law expert Rick Hasen, and former solicitor general Charles Fried, the President’s remarks sparked a controversy over separation of powers, and whether the President was attempting to influence or intimidate the Court. Obama later clarified—and softened—his criticism, but not before three Republican-appointed judges of the Fifth U.S. Circuit Court of Appeals demanded the Department of Justice reaffirm the judiciary’s power to “strike acts of Congress or portions thereof in appropriate cases.”  Yet the incident highlighted the precarious position of the courts in an increasingly partisan environment.  As a Baltimore Sun editorial noted, “you can bet that whatever criticism judges felt this week, it will pale compared to the outpouring that will accompany that decision — no matter how the justices rule.”

Ruth Marcus, Disorder in the Court, Washington Post, April 4, 2012; Ruth Marcus, Obama’s Unsettling Attack on the Supreme Court, Washington Post, April 4, 2012; David Jackson, Judge Orders Justice Department to Explain Obama's Comments, USA TODAY, April 4, 2012; Bill Mears, Holder: DOJ to Respond 'Appropriately' to Judges' Questions About Health Care Law, CNN, April 4, 2012; Richard L. Hasen, A Court of Radicals, Slate, March 30, 2012; David G. Savage, Signs of Supreme Court Activism Worry Reagan Administration Lawyers, L.A. Times, March 31, 2012; Obama and Judicial Review, Baltimore Sun, April 5, 2012.

Diversity on the Bench

2.            A Journal Gazette editorial featured in last week’s E-lert lamented that Governor Mitch Daniels missed an opportunity to increase diversity on the Indiana Supreme Court—which remains one of only three state high courts without a female justice—when he appointed attorney Mark Massa to bench. However, WIBC reports that Supreme Court Justice Frank Sullivan subsequently announced he will resign at the end of August to teach business and finance law at Indiana University. With Justice Sullivan’s departure, Governor Daniels will make his third appointment to the court, which the Indianapolis Star described as another chance for Daniels to “add gender, racial or ethnic diversity to the court.”

Another Chance for Daniels, Indianapolis Star, April 3, 2012; Eric Berman, Supreme Court Justice Frank Sullivan Resigning, WIBC, April 2, 2012.

3.            While at Marquette University Law School to judge its 2012 moot court competition, U.S. Supreme Court Justice Elena Kagan also spoke with students about her experience on the high court. According the Milwaukee Journal Sentinel, “in response to a student's question about such diversity on the bench, [Justice Kagan] conceded that federal courts in general, and especially her court, could do better. All the justices attended either Harvard or Yale law schools.”

Bruce Vielmetti, Visiting MU, Justice Kagan Tells of Hunting with Scalia, Milwaukee Journal Sentinel, April 3, 2012.

Court Resources

4.            Writing in the San Diego Union-Tribune,Thomas Jefferson School of Law professors Alex Kreit and Howard Wayne argue that “[w]ith one out of 10 federal judgeships now vacant, the judicial system cannot effectively serve the American people.” While they note that San Diego is “particularly impacted” due to the “large numbers of immigration and drug smuggling cases,” the effects of judicial vacancies and budget shortfalls are felt across the country. Pointing out that “federal courts are backlogged and in need of good judges,” a Las Vegas Sun editorial blasts Nevada Senator Dean Heller for opposing the nomination of Nevada District Court Judge Elissa Cadish. In an effort to cut costs, the U.S. Judicial Conference is currently reviewing 60 federal courts for possible closure. Meanwhile, Kansas Supreme Court Chief justice Lawton Nuss announced that state courts Kansas will close for five Fridays and 1,500 court employees will be furloughed one week without pay.

Tim Carpenter, Nuss Orders 5-Day Furlough, Court Closure, The Capital-Journal, April 4, 2012; Preventing Justice, Las Vegas Sun, April 5, 2012; Phil West, Mississippi Judges and Attorneys Could get Pay Hike, Commercial Appeal, April 5, 2012; Trish Choate, No Plan to Fight Court Decision, Times Record News, April 5, 2012; Alex Kreit and Howard Wayne, Crisis in the Courts, San Diego Union Tribune, April 4, 2012.


5.            According to a report issued by the New York State Commission on Judicial Conduct last week, “with some exceptions, hiring for non-lawyer positions at the Appellate Division, First Department, has been a closed process for decades. . . . Such a practice undermines the judicial obligation to make appointments based on merit, avoiding favoritism and nepotism [and] diminishes public confidence in the fairness and impartiality of the courts, even if every person hired for every job was in fact qualified for it.” The Commission was convened to investigate accusations of nepotism against Judge Luis A. Gonzalez, the top judge in the appellate division that covers Manhattan and the Bronx. The New York Times reports that although the commission cleared Judge Gonzalez of wrongdoing, its report has initiated a change in the New York Court System’s hiring practices.

Andy Newman, After Report on Nepotism, State Courts Change Hiring Practices, New York Times, April 3, 2012; Nick Reisman, At The Courts, It’s Who You Know, Capital Tonight, April 2, 2012.