Fair Courts E-lert: Justice Ginsburg Resists Political Pressure to Retire

July 11, 2013

FEDERAL JUDICIARY

Justice Ginsburg Resists Political Pressure to Retire 

In a recent interview with Reuters, Supreme Court Justice Ruth Bader Ginsburg said that she will resist political pressure to retire in the near future. She is quoted as saying, “It really has to be, ‘Am I equipped to do the job?' ... I was so pleased that this year I couldn't see that I was slipping in any respect.” Randall Kennedy, a professor at Harvard Law School, argues that Justice Ginsburg should step down now, allowing President Obama to appoint another Democrat to the bench before he leaves office. Kennedy told Reuters, “It seems to me that a justice should take into account the politics surrounding confirmation and not allow (an) opportunity to fall to a Republican.” In a Washington Post blog post, Jamelle Bouie argued that the Reuters article “highlights the problem of lifetime judicial appointments, especially to the Supreme Court.”  Bouie argues, “Lifetime tenure encourages behavior that isn’t ideal for an institution like the court, which is supposed to be removed from partisan politics,” and recommends term limits as a way to decrease political pressure on the courts.
Sources: Jamelle Bouie, The problem with lifetime judicial appointmentsWashington Post, July 5, 2013; Joan Biskupic, Exclusive: Supreme Court's Ginsburg vows to resist pressure to retire, Reuters, July 4, 2013.

Concerns Over FISA Court Judges
Concerns over the practices and makeup of the Foreign Intelligence Surveillance Act (FISA) court are leading to calls for changing the method of selecting the court’s judges. Currently, members of the FISA court are appointed by the chief justice of the Supreme Court.  In an op-ed, columnist Ezra Klein expressed concern about what he characterized as the chief justice’s “exclusive, unaccountable, lifetime power to shape the surveillance state.”  He pointed out that Justice Roberts’s appointees to the FISA court have been almost exclusively Republican, and that the FISA court has approved 20,909 surveillance and property search warrants while rejecting only 10.  He argues, “Perhaps the federal government is simply very judicious in invoking its surveillance authority. But it’s also possible that empowering the chief justice – especially one with an expansive view of state police powers – to appoint every FISA judge has led to a tilted court. That’s probable even if the chief justice has been conscientious in his selections.”

In a Los Angeles Times op-ed, Michael McGough echoed these concerns, observing that “it is anomalous that all 11 members of this important court are appointed by the chief justice,” and arguing that it “would be better if its members were chosen specifically for this assignment by the president and confirmed by the Senate. That’s the case with another specialized court, the U.S. Court of Appeals for the Federal Circuit, which hears cases involving patents, intellectual property and international trade.”  In a Huffington Post blog, University of Chicago law professor Geoffrey Stone also expressed concern about the composition of the FISA court, noting that “At present, approximately 50 percent of federal district court judges were appointed by Republican presidents and 50 percent were appointed by Democratic presidents. But on the FISA court, 91 percent were appointed by Republican presidents and only nine percent were appointed by Democratic presidents.” Stone also raises concerns over the fact that when FISA court judges review government submissions, there is no one on the other side to argue against the government’s requests for information. He argues that independent government lawyers with security clearance should be assigned to make the counterarguments.
Sources: Michael McGough, We need a better way to pick FISA court judgesLos Angeles Times, July 5, 2013; Geoffrey R. Stone, Reflections on the FISA Court, Huffington Post, July 5, 2013; Ezra Klein, Chief Justice Roberts Is Awesome Power Behind FISA CourtBloomberg, July 2, 2013.

STATE COURT SELECTION

Chief Justice Creates Plan to Strengthen Judicial Elections in Ohio
In the second of three columns by Ohio Supreme Court Chief Justice Maureen O’Connor in The News-Herald, Justice O’Connor lays out a plan to strengthen judicial elections in the state. Justice O’Connor argues that judicial elections “don’t get the attention they deserve,” noting that “[a]bout 25 percent of the time, voters who show up at the polls and vote on races at the top of the ticket never get to the bottom of the ticket to vote for judges.” She proposes randomizing or prioritizing the placement of judicial elections on the ballot to increase participation, citing studies that have concluded that “order is important. In everything from search engine results to election ballots, people tend to focus more attention on what comes first. This is why Ohio law already mandates that candidates' names be randomized on the ballot because there is a slight edge to the candidate whose name appears first.” The website www.OhioCourts2013.org provides more information about this proposal, as well as seven other ideas for strengthening judicial elections in Ohio.
Source: Maureen O’Connor, Another Viewpoint: Prioritize judicial elections, empower votersThe News-Herald, July 5, 2013.

Historic Appointments to Maryland’s Highest Court
On July 3rd, Governor Martin O’Malley of Maryland made a number of historic appointments to the state’s highest court, according to an Associated Press article. Mary Ellen Barbera, a member of the Court of Appeals since 2008, was elevated to chief judge, and Shirley Watts was named the fourth women on the seven-person court. If confirmed by the state senate, these appointments would give women a leading role on the court and a court majority for the first time in Maryland’s history. After the governor’s announcement, Watts, who would also be the first black female judge on Maryland’s high court, said, “Today, Governor O'Malley has set a precedent for the state of Maryland that will endure forever and for which I am extremely grateful.” Since taking office, approximately 44 percent of the governor’s judicial nominees have been women.
Source: Brian Witte, Gov. O'Malley appoints 1st female chief judge, Associated Press via Seattle Post Intelligencer, July 5, 2013.