Fair Courts E-lert: Brennan Center Report on Judicial Vacancies in Federal Trial Courts

July 2, 2013

FEATURED RESEARCH

Brennan Center: Judicial Vacancies in Federal Trial Courts
According to a recent study by the Brennan Center for Justice, abnormally high vacancy levels in the district courts coupled with unprecedented workloads is delaying the resolution of critical legal disputes in civil and criminal trials. While most attention has been focused on vacancies in the federal appeals courts, the report argues that trial courts are facing similar burdens. According to the report, from 2009-2013, judicial vacancies averaged over 60 open seats per year, a trend that has not been seen in over 20 years. Alicia Bannon, author of the report and Counsel at the Brennan Center for Justice, notes that “Our trial courts are in trouble. As seats remain unfilled, millions of Americans who rely on district courts are being denied the justice they deserve. District courts can no longer wait. The President and the Senate must find a way to fill these crucial seats.”
Source: Alicia Bannon, Federal Judicial Vacancies: The Trial Courts, Brennan Center for Justice, July 2, 2013; Trial Courts in Trouble: An Analysis of Judicial Vacancies in Federal District Courts, Brennan Center for Justice, July 2, 2013.

JUDICIAL INDEPENDENCE

Judicial Independence Targeted by Legislators and Special Interests
A rising tide of attacks against state courts and judges by legislators and special interests threatens the independence and impartiality of the courts, according to an article in the ABA Journal. The article reports that these attacks are “part of a national war on state courts fought mostly by legislators and special interests who are targeting judges with negative campaign ads, and by legislators attempting to pack or unpack higher courts with like-minded jurists.” The growing politicization of state courts has particularly troubling implications for litigants. “The Center for American Progress reports that the six states that have seen the most money in judicial elections – Alabama, Illinois, Michigan, Ohio, Pennsylvania and Texas – have supreme courts dominated by pro-corporate judges. The high courts in these states ruled in favor of corporations an average of 71 percent of the time, the organization reports.” Recusal may be one possible method for reigning in the influence of special interests, in addition to an increase in voter education. The article quotes Bert Brandenburg, executive director of Justice at Stake, as stating, “If more ordinary voters voted in judicial elections, it’s less likely a special interest group can tip an election by turning out their base.”
Source: L. Jay Jackson, Legislators and special interests are making sure we get the state court judges they want, ABA Journal, July 1, 2013.

Task Force Suggests Term Limits in Wisconsin
The Wisconsin State Journal reports that a special task force of attorneys from the state Bar of Wisconsin recently concluded that “limiting Wisconsin Supreme Court justices to a single 16-year term would help restore public confidence in a court whose image has been battered by increasingly savage political campaigns fueled by a rising tide of money.” The report determined that the proposed change “will remove the most powerful force interfering with collegiality on the Court: the potential for factions developing over the re-election of a fellow justice. Removing this dynamic will help enhance public respect for the members and the functioning of the Supreme Court.” Former Supreme Court Justice Janine Geske praised the proposal, noting that “my concern is the vast amount of money that is being spent and the way it’s being spent on ads that aren’t relevant to the duties and responsibilities of the job. They take one opinion out of a justice’s whole career and that becomes the total issue in the campaign. This proposal would diminish that.” The task force would like to see a constitutional amendment introduced this fall that would change the current system of unlimited 10-year terms to a single 16-year term. “The special interests on both sides of the aisle believing they have some influence over the justices, that would be gone,” Geske said. “I like that part of it.”
Source: Steven Verburg, Fewer elections for top court would restore civility, public trust, special task force says, Wisconsin State Journal, June 29, 2013; Judicial Task Force Preliminary Report via Madison.com.

JUDICIAL NOMINATING COMMISSIONS

Tennessee Judicial Nominating Commission Expires, Selection Process Remains Uncertain
The Tennessee Judicial Nominating Commission expired on Friday, June 28, creating an uncertain future for judicial selection in the state. A recent article in The Tennessean notes that “Tennessee’s high courts have been hit with a wave of resignations, motivated by the Judicial Nominating Commission’s wind-down, potentially volatile retention elections next summer and uncertainty over how Tennessee’s judges will be chosen in the future.” Tennessee Supreme Court Justice Janice Holder recently announced her retirement, in addition to three appeals court judges who also announced plans to step down next year. The Judicial Nominating Commission was able to screen 35 applicants for the appeals court judgeships, but the timing of Holder’s announcement will make it impossible for the Commission to suggest candidates for her replacement.  The article reports, “Spokespeople for Gov. Bill Haslam and the Administrative Office of the Courts said . . . that it is not clear how Holder’s seat on the five-person Supreme Court will be filled.” Brian T. Fitzpatrick, a professor of law at Vanderbilt University, recently released a white paper entitled Sunsetting the Tennessee Judicial Nominating Commission: What Now? He concludes that “Tennessee law will permit the selection of judges to continue uninterrupted and with only minor changes from the status quo when the Judicial nominating commission expires at the end of this month. As a result, I do not believe any legislative action is necessary between now and November 2014 when the voters will decide whether to replace the current system for selecting judges.”
Sources: Chas Sisk, Tennessee Supreme Court justice to resign, The Tennessean, June 26, 2013; Brian T. Fitzpatrick, Selection Of Judges Should Continue Uninterrupted When Tennessee Judicial Nominating Commission Expires, PR Newswire, June 27, 2013.  Brian T. Fitzpatrick, Sunsetting the Tennessee Judicial Nominating Commission: What Now?, The Federalist Society, June 2013.

STATE JUDICIAL SELECTION

Governor of Kansas Will Not Release Names of Appeals Court Candidates
Breaking with over 30 years of practice, Governor Sam Brownback will not release the names of the candidates for a Kansas State Court of Appeals opening, according to the Associated Press. The Kansas Legislature recently eliminated merit selection for Court of Appeals judges, providing for the appointment of judges by the governor with confirmation by the state senate. The Associated Press notes that “supporters of the new selection process for Court of Appeals judges say it’s more accountable to the public and prevents attorneys – who elect a majority of the nominating commission – from dominating the process.” Eileen Hawley, a spokeswoman for Brownback, went on to say that “the governor is treating Court of Appeals appointments as he does appointments to his Cabinet or state boards and commissions.” Anne Burke, the chairwoman of the Supreme Court Nominating Commission criticized the decision: “It's appalling and terrible. Now, there is absolutely zero public input. Never in the history of Kansas have I seen a bigger executive branch power grab than under this administration.” Despite efforts to also alter the state Supreme Court election process, merit-based system remains unchanged.
Sources: Brownback won’t disclose appeals court applicants, Associated Press via Lawrence Journal-World, June 27, 2013; Timothy Carpenter, Brownback won't divulge Court of Appeals applicants, Topeka Capital-Journal, June 27, 2013.