Fair Courts E-lert: Senate Leaders Reid, McConnell Strike Deal on Judicial Nominees

March 19, 2012
Federal Judicial Selection

1.            Senate Majority Leader Harry Reid canceled cloture votes on 17 of President Obama’s judicial nominees after reaching a deal with Minority Leader Mitch McConnell last Wednesday.  According to the Hill, the agreement will allow 14 currently pending judicial nominees to come up for a vote by May 7th. In addition to these 14, the Washington Post reports that there are 8 more nominees waiting on a full Senate vote, and another 8 currently in the Senate Judiciary Committee pipeline. While a showdown was averted by the agreement, the issue of judicial nominations nonetheless remains a hot-button issue, with Democrats blaming Republican obstructionism for the slow rate of judicial confirmations and Republicans describing Democrats’ heightened focus on judicial nominees as a “political ploy.”  In The Atlantic, Andrew Cohen condemns the politicization of judicial nominations, calling the appointment of judges a “simple and basic a matter of governance."  Meanwhile, the White House has revealed an infographic highlighting the progress of Obama’s nominees and the delays they’ve faced in the Senate.

Josiah Ryan, Senate Leaders Reid, McConnell Strike Deal on Judicial Nominees, The Hill, March 14, 2012; Scott Wong, Harry Reid, Mitch Mcconnell Strike Deal on Judges, POLITICO, March 14, 2012; Carl Tobias, The Senate's 'Dr. No' Delivers a Surprise 'Yes’, L.A. Times, March 14, 2012;  Andrew Cohen, On Judicial Nominees, a Moment of Truth for the Senate, The Atlantic, March 13 2012; Emily Heil, Obama’s Record on Appointing Judges Comes into Focus, Washington Post, March 16, 2012; Jessica M. Karmasek, U.S. Senate Confirms Groh To Federal District Court, West Virginia Record, March 15, 2012; Bob Egelko, Michael Fitzgerald 1st Openly Gay U.S. Judge in CA, San Francisco Chronicle, March 16, 2012.

State Judicial Elections

2.            Last Tuesday, former Alabama Chief Justice Roy Moore won the Republican primary nomination for chief justice, with just over 50 percent of the vote—the amount required to avoid a runoff.  The Associated Press described Moore’s victory over sitting Chief Justice Chuck Malone and former Attorney General Charlie Graddick as an “improbable” comeback.  In 2003, Moore was removed from the Court for refusing to heed a federal judge’s order to remove a controversial Ten Commandments monument from the Alabama Judicial Building. Moore’s improbable comeback inspired a New York Times editorial to examine state high court elections.  Referencing recent controversies surrounding state supreme court elections, the editorial warned that public trust in fair and impartial courts is eroded when candidates are forced to “cozy up to party leaders and raise large sums from special interests eager to influence their decisions” and notes that “[b]itter campaigns — replete with nasty attack ads — make it much harder for judges to work together on the bench and much harder for citizens to trust the impartiality of the system.”

No Way to Choose a Judge, New York Times, March 15, 2012; Andy Brownfield and Phillip Rawls, Moore Wins Primary Race for Alabama Chief Justice, Associated Press, March 14, 2012.

3.            The Chicago Sun Times describes the upcoming Democratic primary for Illinois Supreme Court as “a titanic battle of competing forces: name recognition, campaign donations and endorsements.”  Last Tuesday, a district court judge ruled that the abortion rights group Personal PAC could set up its own independent-expenditure PAC, not bound by state limits on campaign contributions.  Mailings funded by the PAC describe Aurelia Pucinski, an appellate court justice challenging incumbent Mary Jane Theis for a seat on the Supreme Court, as “Not Pro-Choice.”  In contrast, the mailer notes that numerous pro-choice organizations endorse Justice Theis.  Meanwhile, a recent survey by the Illinois Campaign for Political Reform of state Supreme Court candidates revealed that candidates want clearer recusal guidelines to assist them in making decisions about when to step aside in cases involving judicial campaign contributors.

Carol Marin, Abortion Big New Issue in Court Race, Chicago Sun Times, March 13, 2012; Survey: Illinois Supreme Court wants Recusal Guidelines, Illinois Radio Network, March 16, 2012.

4.            The Chicago Appleseed Fund for Justice is encouraging Illinois voters to visit VoteForJudges.org, a nonpartisan voter education website, in order to learn about judicial candidates before voting in Tuesday’s primary election. The website posts bar association evaluations of judges seeking nomination in the primary elections and of judges seeking retention in the general elections. According to Malcolm Rich, executive director of Chicago Appleseed, “A good judge will save a lot of lives, and a bad judge will end up incarcerating a lot of people unnecessarily and ruining those lives.”

Joslin Woods, Judging the Judges: How Voters Should Prepare for the Judicial Races, March 7, 2012.

5.            HB 230, a bill to create a public financing system for Kentucky Supreme Court races, is headed to the full House after passing out of committee last week.  In an Associated Press article last month, the bill’s sponsor, Representative Jim Wayne, described the legislation as necessary in wake of the U.S. Supreme Court’s Citizens United ruling.  According to another supporter of the proposal, Representative Tom Riner, “Big money has become more prominent in the judiciary, just as it has in all other state and federal elections . . . . This bill eliminates that dependence of judges on the campaign donations.”

Deborah Yetter, Bill to Extend Domestic Violence Protection Advances, Courier-Journal, March 14, 2012; Public Financing Proposed For Supreme Court Races, Associated Press, February 27, 2012.

Court Resources

6.            While speaking to the Judicial Conference of the United States about budget cuts to the judiciary scheduled to take effect in January, Judge Julia Gibbons, chair of the budget committee, warned that “[t]he Judiciary is on the cusp of a financial crisis of significant proportions, one that I believe we can assuage somewhat if we are willing to take bold and unprecedented action.”  A Judicial Conference press release echoed her concerns, noting that “[i]f Congress does not agree to a deficit reduction plan or amend this ‘sequestration’ requirement [which requires automatic across-the-board spending cuts to take place in January 2013], the courts could lose more than one-fourth of their workforce, civil trials could be suspended for months, funds to pay panel attorneys who represent indigent defendants would expire well before the end of the fiscal year, and court security could be severely compromised.”

Martha Neil, ‘Financial Crisis’ May Require Federal Courts to Suspend Some Trials, ABA Journal, March 13, 2012; James Vicini, Judges Warn Budget Cuts Could Halt Some Trials, Reuters, March 13, 2012.

Merit Selection

7.            In a letter to the Pennsylvania House Judiciary Committee, Samuel Denisco of the state Chamber of Business and Industry expressed the Chamber’s support for legislation that would replace judicial elections in Pennsylvania with a merit selection system.  According to Denisco, “[t]o function properly, the courts must command the absolute respect and confidence of the general public. Furthermore, Pennsylvania businesses want an efficient, cost-effective judicial system comprised of appellate court judges of demonstrated expertise, independence, integrity and competence who adhere to the highest standard of judicial behavior.” The House Judiciary Committee is currently considering two bills that would alter the selection process for state judges.

Julie Shaw, Will Pa. Judges Merit Selection in Future?, Philadelphia Inquirer, March 2, 2012.


8.            A Beloit Daily News editorial claims that “Wisconsin’s judicial system is approaching a crisis point of public confidence.”  According to the editorial, Dane County Circuit Judge David Flanagan—who recently granted a temporary injunction against the state’s voter ID law—should have disclosed that he had signed a petition urging the recall of Republican Gov. Scott Walker, and should have recused himself from the case.  Meanwhile, the Volokh Conspiracy reported that, on Friday, the Wisconsin Judicial Commission filed a formal ethics complaint against Supreme Court Justice David Prosser for his role in a June altercation with Justice Ann Walsh Bradley.

EDITORIAL: More Ethical Lapses in Court, Beloit Daily News, March 10, 2012; Jonathan H. Adler, Prosser v. Bradley — The Return, The Volokh Conspiracy, March 18, 2012.

9.            The Courthouse News Service reports that over 80 California judges are suing the state for miscalculating their retirement benefits, cancelling their health benefits, and delaying or denying payment of other benefit claims.

Matt Reynolds, Judges Sue California Over Pensions, Courthouse News Service, March 15, 2012.