Fair Courts E-lert: Judge Indicates Montana Campaign Law on Judicial Races May Fall

June 4, 2012
1.            A New York Times op-ed argued this week that “the longstanding and well-established practice of having law clerks ghostwrite judges’ legal opinions” is a crisis plaguing the federal appellate judiciary. The commentary continues, noting that while using law clerks to draft opinions helps with work-flow, “Judge written opinions require greater intellectual rigor, exhibit more personal style and lend themselves to more honest and transparent conclusions.”

William Domnarski, Judges Should Write Their Own Opinions, New York Times, May 31, 2012.

State Judicial Elections

2.            The Sanders County, Montana, Republican Central Committee filed suit Tuesday in federal court to challenge a state law that prohibits political parties from spending money on or endorsing nonpartisan judicial candidates, according to the Billings Gazette. The local Republican Party argues that the law violates the First Amendment.  Speaking on behalf of the state, however, Assistant Attorney General Mike Black countered that “[t]he state of Montana . . . has a compelling interest in making sure its elected judiciary is fair and impartial.” U.S. District Judge Charles Lovell declined to suspend the law in anticipation of the state’s primary tomorrow and instead set a hearing for June 11 to explore the issue further.

Mike Dennison, Judge Indicates Montana Campaign Law on Judicial Races May Fall, Billings Gazette, June 1, 2012.

3.            Last week’s E-lert discussed the controversy over Texas Judge Trey Loftin’s campaign mailers referencing his decision in a case in which some aspects were still ongoing. Judge Loftin—who lost the GOP primary contest last week—is still overseeing parts of the case, according to Bloomberg. Some observers claim the advertisements raise questions of impartiality, and the plaintiff has formally requested Judge Loftin recuse himself.  Meanwhile, a San Antonio Express-News editorial decried the state’s reliance on contested judicial elections when so many voters are uninformed about the judicial candidates, and suggested that a merit-selection system would be preferable.  According to the editorial, “until lawmakers decide to fix the broken system, judicial races in Texas will continue to be a dangerous roll of the dice.”

Mark Drajem, Texas Man Asks to Remove Judge Who Cited His Case in Campaign, Bloomberg, May 31, 2012; Vote Bolsters Call for Judicial Reform, San Antonio Express-News, May 30, 2012.

4.            According to the News Observer, the race between incumbent North Carolina Supreme Court Justice Paul M. Newby and the Democratic challenger, state Court of Appeals Judge Sam Ervin IV, is “one of the most consequential elections in North Carolina this year” because “[a]t stake is the 4-3 balance on the Supreme Court, which currently tips conservative.” The Observer predicted that while both candidates have raised similar amounts, the race will garner more attention in the near future as a new Super PAC “comprised of Republican heavy-hitters” begins spending on behalf of Justice Newby.

Craig Jarvis, New Super PAC Gets Involved in Supreme Court Race to Back Newby, News Observer, June 2, 2012.

Judicial Appointments in the States

5.            The New York Times reports that “[a] New Jersey Senate panel rejected on Thursday the second of two men nominated by Gov. Chris Christie to the state’s highest court, dealing another blow to the governor’s attempt to reshape what he has criticized as an overly liberal and activist institution.” Bruce A. Harris—the second nominee to be rejected by the Senate Judiciary Committee this year—was defeated by a 7-6 vote last Thursday.

Kate Zernike and Nate Schweber, Legislative Panel Rejects 2nd Christie Pick for State Supreme Court, New York Times, May 31, 2012.

6.            Ohio Supreme Court Justice Evelyn Lundberg Stratton has announced she will retire in December. Accordingly, Governor John Kasich will appoint a replacement to serve through the end of Justice Stratton’s term in 2014. An editorial in the Cleveland Plain Dealer suggests that the Governor should use his upcoming nomination “to demonstrate how a merit-based selection might work. One way: convene a panel, perhaps comprising Ohio State Bar Association leaders or law school deans, that would screen potential nominees with an eye to quality and temperament, not electability or political ties.” The editorial notes that, “[w]hen filling judicial posts in Cuyahoga County, the governor has worked off lists of candidates screened by the local bar’s Judicial Qualifications Committee. Doing the same at the statewide level would send a powerful message that talent should trump politics.”

Replacing Justice Evelyn Lundberg Stratton, The Cleveland Plain Dealer, May 27, 201

The Federal Judiciary

7.            A Washington Post blog notes that the crisis of vacancies on the federal bench has gotten so bad that it was featured on an episode of Jeopardy; contestants were given the clue “Of these 874 federal government jobs, 85 are vacant, some for over five years.” to which the correct response was, “What are judges?”

Jonathan Bernstein, I'll Take Obstruction for $500, Alex, Washington Post, May 30, 2012.