Fair Courts E-Lert: Brennan Center to Track Ad Spending on Kavanaugh Supreme Court Nomination; NC General Assembly Aims to Intervene in State Supreme Court Race

July 27, 2018


North Carolina General Assembly Aims to Intervene in State Supreme Court Race

In a special legislative session this week, North Carolina legislators moved to alter a state supreme court election in which incumbent Republican Associate Justice Barbara Jackson is facing Democratic attorney Anita Earls, and attorney Chris Anglin, who was a registered Democrat until June, but recently switched his party and filed as a Republican. There was no primary between Jackson and Anglin because the legislature cancelled this year’s judicial primaries. According to The News & Observer, Republican leaders “fear Anglin is a secret Democrat who’s only pretending to be a Republican to split the GOP vote and turn the court’s 4-3 liberal tilt into a 5-2 advantage.” On Tuesday, the Republican-controlled House and Senate approved a bill which would omit the party affiliation of any judicial candidate who changed his or her party 90 days before filing; this would remove Anglin’s Republican label on the ballot.

This November, voters will also decide on a constitutional amendment that gives the legislature significant new authority to select judges to fill judicial vacancies. With that vote approaching, the legislature advanced a bill that would allow it to determine the language summarizing the constitutional amendments, stripping that authority from a three-member panel that the law currently tasks with drafting accurate and neutral language. Because two of the members of the current panel are Democrats, however, The News & Observer explains that Republican lawmakers “say they don’t trust the panel to avoid outside pressure to politicize the titles,” while Democrats “argue Republicans just want to conceal what exactly the amendments would do.”

While both bills will go to Gov. Roy Cooper for his signature or veto, Republicans hold a veto-proof supermajority in the legislature.


Brennan Center to Track TV Ad Spending on Kavanaugh Supreme Court Nomination 

This week, the Brennan Center for Justice launched a new initiative tracking all television ad spending related to the nomination of Brett Kavanaugh to the Supreme Court. On its webpage, “Follow The Money: Tracking TV Spending In The Fight Over Trump’s SCOTUS Pick,” the Brennan Center will make available information about the cost of individual ad buys, spenders’ identities, target markets, and more to highlight the large amount of dark money fueling the nomination fight. The tracker uses data provided by Kantar Media/CMAG, which captures ad data in the nation’s largest media markets.

As of July 27, 2018, the largest spender is the Judicial Crisis Network, a dark money organization which has already spent over $800,000, and has said it is “prepared to spend as much as $10 million” on pro-Kavanaugh ads; JCN previously spent $17 million to block Merrick Garland’s nomination and support the confirmation of Neil Gorsuch. Spending has been concentrated in a few key states: Alabama, Alaska, Indiana, Maine, North Dakota, and West Virginia; and often target Senators up for election this November.  

This work builds upon the Brennan Center’s annual tracking of spending in state supreme court elections, which is ongoing for fall elections.


Trump Issues Executive Order Potentially Politicizing Administrative Law Judge Hiring 

On July 10th, President Trump issued an executive order granting federal agency heads significantly greater discretion in selecting federal Administrative Law Judges (ALJs). Previously the independent Office of Personnel Management required agencies to choose ALJs from a short list of vetted candidates who performed well on a competitive examination.

Trump issued the executive order in the wake of the recent Supreme Court decision in Lucia v. Securities and Exchange Commission, in which the Court found the selection process for the Securities and Exchange Commission’s ALJs – whereby staff members appointed judges – violated the Constitution’s Appointments Clause. The court ruled that, because of their significant authority, ALJs are “inferior officers” and therefore must be appointed by the President, “courts of law,” or the “heads of departments.”

The White House argued the Executive Order will “give agencies greater ability and discretion to assess critical qualities in ALJ candidates.” However, critics argue that the order goes well beyond what Lucia requires, and “essentially turns these judges into political appointees.”

In response, Democratic Representatives filed an amendment to appropriations legislation that would prevent the Office of Personnel Management from using agency funding to enact regulations carrying out the executive order.

New IAALS Recommendations for Judicial Discipline Respond to #MeToo Movement

Last week, the Institute for the Advancement of the American Legal System (IAALS) released a report detailing recommendations for judicial disciplinary measures. IAALS explains that the report set out to address a source of public distrust in the judiciary: “The American legal system and our judges are not immune to the #MeToo movement; judges, like other people in positions of power, have resigned because of allegations that they have harassed people in their employ,” adding that the public must have confidence judges who abuse their power “are not above the law and will be disciplined.”

The report, Recommendations for Judicial Discipline Systems, is based upon a 2018 convening between members of judicial commissions, commission staff, judges, lawyers, and scholars, and released in coordination with Keith Swisher of the University of Arizona Law School and Russell Wheeler of the Brookings Institution. IAALS provides recommendations in six key areas: promoting impartial judicial decision-making; promoting commission impartiality; sanctions; fairness and efficiency in commission operations; advisory options; and education and dissemination. The recommendations range from eliminating “unnecessary barriers to complaint filing” to establishing rules “that limit the ability of judges to use resignation or retirement from the bench as a means of avoiding investigation.”