Fair Courts E-lert: Politics, Intolerance and Fair Courts

August 13, 2012
Judicial Elections

1.      The controversial targeting of Iowa State Supreme Court Justice David Wiggins for his participation in the 2009 decision on same-sex marriage continues to be a hot topic. The New York Times editorial board expressed their disappointment that the Republican Party has joined the fight to oust Justice Wiggins, after playing no formal role in the antiretention campaign against three other justices in 2010. The editorial says “stoking intolerance and further politicizing a retention election meant to weed out incompetent or corrupt judges is an unacceptable strategy.” Other editorials have similarly criticized the Iowa GOP for “injecting politics into courts.” Other independent groups have also begun to target Justice Wiggins, including Iowans for Freedom, who led the Iowa antiretention campaign in 2010.

Editorial, Politics, Intolerance and Fair Courts, New York Times, August 10, 2012; Editorial, Spiker's Troubling Display Of Intolerance, Des Moines Register, August 3, 2012; Editorial, GOP Shouldn’t Focus on Removing Another Justice, Globe Gazette, August 8, 2012; O. Kay Henderson, Iowans For Freedom Relaunches, Targeting Justice Wiggins, Radio Iowa, August 11, 2012; Rod Boshart, Vander Plaats Launches Effort to Oust Another Supreme Court Justice, Waterloo-Cedar Falls Courier, August 12, 2012.

Supreme Court

2.      The Atlantic has a piece this week “focus[ing] on the military history of the men who later became [Supreme Court] justices.”  The article points out, “For the first time since 1936, the year before former Army Captain Hugo Black ascended to the bench, there are no current justices with any active, wartime military experience. The last justice with such experience -- in naval intelligence, during the Second World War -- was John Paul Stevens. He retired from the bench in 2010.”  The article argues, “Just think for a moment about what a military perspective at the Court might have offered the terror-law debate over the past decade. And just think of how cloistered the current Court is today: In addition to their lack of active military service, none of the justices have ever held elective office, and only one, Justice Sonia Sotomayor, even has any experience as a federal trial court judge. The Court still needs more diversity in many ways, but none more so than diversity of background and experience.”

Andrew Cohen, None of the Supreme Court Justices Has Battle Experience, The Atlantic, August 13, 2012.

Judicial Ethics

3.      The Massachusetts Supreme Judicial Court ruled that judges do not have to disclose their notes or other materials reflecting their thought processes to ethics investigators, recognizing a “judicial deliberative privilege” for the first time. The opinion, written by Justice Robert Cordy on behalf of all seven members of the Court, states, “We conclude that although holding judges accountable for acts of bias in contravention of the Code of Judicial Conduct is essential, it must be accomplished without violating the protection afforded the deliberative processes of judges fundamental to ensuring that they may act without fear or favor in exercising their constitutional responsibility to be both impartial and independent…In so concluding, we formally recognize a judicial deliberative privilege that guards against intrusions into such processes — a protection we have implicitly understood as necessary to the finality, integrity, and quality of judicial decisions.” The ruling came in response to the subpoenaing of a judge’s notes and materials after an ethics complaint was filed. Justice Cordy stated that the ethics complaint should continue to be investigated, but should rely on already available information.

John R. Ellement, Mass. High Court: What Judges Think is Protected By State And Federal Constitution, Boston Globe, August 8, 2012.

4.      The ethics complaint against Wisconsin Supreme Court Justice David Prosser over an alleged physical altercation with a colleague may not be heard after a third Supreme Court Justice recused himself from the case, and now there is no quorum to proceed. Justice Michael Gableman recused himself on Friday night, after Justices Annette Ziegler and Patience Roggensack recused themselves earlier in the case. The Milwaukee Journal Sentinel reports, “Milwaukee lawyer Franklyn Gimbel, the special prosecutor in the case, contends Chief Justice Shirley Abrahamson has authority to send the case to be heard by a special panel of three appeals court judges.”

Bruce Vielmetti, Gableman Recuses Himself in Prosser Ethics Case, Milwakuee Journal-Sentinel, August 10, 2012.


5.      The Center for American Progress has released two studies this week related to the judiciary. The first is a report called Big Business Taking over State Supreme Courts, which “provides illustrations from six states— Alabama, Texas, Ohio, Nevada, Wisconsin, and Michigan—of how corporate interest groups that desire a certain outcome have donated money to judges, and the same judges have then interpreted the law in a manner that achieves their corporate donors’ desired outcome.” The second is an issue brief calledThe Conservative Takeover of State Judiciaries, which argues, “Legislators in Missouri, Florida, and Arizona managed to place referendums on this November’s ballot that if approved by voters would severely restrict judicial independence and belie the promise of fairness before the law. State judges that are expected to protect citizens’ rights will become more and more aligned with conservative and corporate interests.”

Billy Corriher, Big Business Taking over State Supreme Courts, Center for American Progress, August 13, 2012; Todd Phillips and Andrew Blotky, Big The Conservative Takeover of State Judiciaries, Center for American Progress, August 13, 2012.