Fair Courts E-lert: Obama and the Supreme Court

November 13, 2012
In this special edition of the E-lert, we include election-related updates on previously featured judicial races and ballot measures. This week’s stories follow the election-related updates below.

Election Results

  • In Alabama, former Chief Justice Roy Moore defeated Bob Vance for the open position of Chief Justice, which carries a six year term.
  • In Michigan, the winners of the two eight year term positions are Bridget McCormack and Stephen Markman, and the winner of the partial term ending January 1, 2015 is Brian Zahra. Seven candidates competed for the two eight-year positions, with the top two vote-getters winning the seats. Three candidates competed for the partial-term position that ends Jan. 1, 2015.
  • In North Carolina, incumbent Justice Paul Newby defeated Samuel Ervin IV for an eight year term.
  • In Ohio, three seats were up for election. Terrence O’Donnell was elected to a term starting Jan. 1 2013, William O’Neill was elected to a term commencing Jan. 2, 2012, and Sharon Kennedy was elected to an interim term expiring Dec. 31, 2014. For the seats without a partial term, justices serve for six years.
  • In Washington, Sheryl Gordon McCloud defeated Richard Sanders for a six-year term.
  • In West Virginia, there were four candidates vying for two 12-year terms, Allen Loughry and incumbent Justice Robin Davis won the two open seats.

Retention Elections

  • In Arizona, voters retained Supreme Court Justice John Pelander.
  • In Florida, all three Supreme Court justices (Justices R. Fred Lewis, Barbara Pariente and Peggy Quince) were retained after a contentious campaign season (see previous elerts here for details).
  • In Indiana, voters retained Supreme Court Justice Steven David.
  • In Iowa, Justice David Wiggins was retained. He faced a tough retention election after he was targeted by outside groups for his participation in the 2009 unanimous gay marriage decision (see more information in previous elerts here).

Ballot Initiative Results 



Obama and the Supreme Court
Now that the election is over and President Barack Obama was reelected, many are reflecting on the President’s opportunity to shape the Supreme Court in the next four years. The Wall Street Journal argues: “With the incoming leadership of the executive and legislative branches nearly a carbon copy of the current versions, Tuesday's election could have the biggest effect on the sole unelected branch of government: the federal judiciary.” The article considers potential Supreme Court candidates including Judge Paul Watford, Judge Mary Murguia, Homeland Security Secretary Janet Napolitano, Senator Amy Klobuchar, and California Attorney General Kamala Harris. Curt Levey, president of the Committee for Justice, considers the importance of which current Justice may be replaced: “Because Republicans lost the presidential election and a couple of Senate seats… Mr. Obama was entitled to ‘a lot of deference’ should he wish to replace Justice Ginsburg or another liberal with a like-minded nominee. ‘But if it's replacing [Justice Antonin] Scalia or [Justice Anthony] Kennedy, then we're really talking Armageddon’—a filibuster that could grind Washington to a halt—should the president nominate ‘anyone to the left of Merrick Garland.’” An article by CNN points out that “Besides Ginsburg, three other justices are in their 70s: fellow liberal Stephen Breyer, who is 74; and Republican appointees Antonin Scalia and Anthony Kennedy, both 76.”
Sources: Jess Bravin, Win Offers President Time to Shape Court, Wall Street Journal, November 8, 2012; Bill Mears, Federal Courts in a Second Obama Term: Political Peril and Opportunity, CNN, November 8, 2012.


‘Beating Back the War on Judges’
An article in Slate on the 2012 elections looks at the new focus on division in judicial elections, and how voters responded. The piece argues, “Tucked away in last Tuesday’s national election results was a bona fide mandate, on a scale that presidents can only dream of. Voters across the country rejected a multifront crusade to bully judges and politicize courtrooms. That doesn’t mean, though, that the war against the independent judiciary is over.” Focusing on the Iowa retention election of Justice David Wiggins, one of the justices who participated in the 2009 gay marriage decision, the article tracks the increasing hostility in retention elections. The results of the election showed “Bipartisan backlash. The ballot measures were defeated by enormous margins, exceeding 70 percent in Arizona and Missouri, and by almost two-thirds of Floridians. Iowans voted to retain Justice Wiggins by 8 points, and voters in other states rejected partisan challenges to their high court justices.” The article concludes: “The message that the courts aren’t for sale is one ‘we will likely have to deliver over and over again unless we build a more effective firewall to keep big money and politics away from the judicial branch,’ says former Florida state Sen. Alex Villalobos, a Republican. That’s a big task, but what’s clear from this election is that though Americans may be divided 50-50 on many things, they want their judiciary to be nonpartisan.”
Source: Bert Brandenburg, Beating Back the War on Judges, Slate, November 12, 2012.


New Report by the Center for American Progress: “Merit Selection and Retention Elections Keep Judges Out of Politics”
The Center for American Progress released a new report,“the third in a series on different policies that could help mitigate the influence of corporate campaign cash in judicial elections.” The report argues: “The judiciary is the only institution that can remedy violations of the constitution by the other branches of government. At the first step of the process, merit selection frees a potential judge from political influence by focusing on his or her qualifications, not on the ability to make deals with legislators or rake in campaign contributions.” The report continues, “Merit selection reduces the opportunities for special interests to influence courts. Advocates point out that merit selection can ‘minimize political influence by eliminating the need for candidates to raise funds, advertise, and make campaign promises, all of which can compromise judicial independence.’ Retention elections also subject judges to less political pressure than contested elections. Many judges argue that merit selection leads to better-qualified judges. One organization of civil defense lawyers warns that contested elections might prevent the most qualified lawyers from seeking seats on the bench, saying that, ‘Otherwise qualified individuals may opt not to run for fear of losing to a judge before whom future cases must be tried.’”
Source: Billy Corriher, Merit Selection and Retention Elections Keep Judges Out of Politics. The Center for American Progress, November 1, 2012.

‘Another View: Iowa's Court System is Highly Regarded Across U.S.’
An opinion piece in the Des Moines Register argues in favor of Iowa’s merit and retention system even with the (then) impending contentious retention of Justice David Wiggins. The piece notes the history in Iowa: “In 1962, Iowans approved a constitutional amendment to establish a nonpartisan merit selection system for state judges. The voters adopted that change because, having seen the troubling results of the direct election of judges, they wanted a judicial selection system that would curb the influence of political parties and special interests and that would ensure the appointment of fair and impartial judges who are accountable to the public and who inspire public trust in the judiciary.” The author argues that this system makes Iowa’s judiciary exemplary: “The result of merit selection for Iowa has been to produce a state justice system that is highly regarded across our country. Despite the positive results in Iowa from selecting judges on the basis of merit, not politics, some groups are now urging Iowa voters to make decisions about whether judges should be retained on the basis of political views.”
Source: Ruth V. Mcgregor, Another View: Iowa's Court System Is Highly Regarded Across U.S., Des Moines Register, November 2, 2012.