Fair Courts E-lert: Judicial Nomination and Confirmation after Obama Reelection

November 21, 2012
FEATURE STORY

NY Times “Judicial Elections, Unhinged”
This week, the New York Times published an editorial discussing the money spent in judicial elections this year, stating, “This year’s round of state judicial elections broke previous records for the amounts spent on judicial campaigns around the country. The dominant role played by special-interest money — including money from super PACs financed by undisclosed donors — has severely weakened the principle of fair and impartial courts.” The editorial identifies the Florida retention election and Michigan’s high spending election as symbols for a broken judicial election system. They conclude, “Regrettably, states that elect their top judges show no inclination to address these distressing trends by replacing judicial elections with systems of merit appointment that avoid retention votes. This year’s experience should at least hasten state efforts to revise rules for judicial recusal to take campaign contributions into account. Mandatory disclosure of all donations to a judicial race is also essential. Litigants cannot know when they should request that a judge step aside if they cannot tell whether their case involves a party that supported the judge’s campaign.”

Source: Editorial, Judicial Elections, Unhinged, New York Times, November 18, 2012.

STATE JUDICIAL ELECTIONS

Reactions to the Election: Too Much Money, Argument for Reform
After the November 6 election, many have reacted to the amount of money spent in judicial races and its potential for corrupting influence (for more information, see a press release from the Brennan Center and Justice at Stake here).

In addition to the New York Times editorial featured above, USA Today published an opinion piece by Billy Corriher (of the Center for American Progress) stating, “The explosion of campaign cash in judicial elections has led citizens to doubt whether judges can be impartial. Every litigant — regardless of wealth or power — is supposed to be equal in the eyes of the law. But this principle is less true with each passing judicial election.”

Justice John Paul Stevens is quoted in the Palm Beach Post criticizing Florida’s retention elections, saying, “I congratulate Justices Lewis, Pariente and Quince for their well-deserved victories in an election retention that in my judgment should never have been held.”

Michigan had one of the most expensive judicial elections this year, and the Metro-Times of Detroit, the Holland Sentinel, and Daily Telegram from Adrian, MI all ran editorials or articles highlighting the problems that can occur with that much campaign spending. The Holland Sentinel wrote, “Knowledge is power, and in this case you don’t have it. Earlier this year, a blue-ribbon Judicial Selection Task Force recommended changing state law to require greater disclosure on campaign spending in court races. The potential for perversion of justice is evident in this year’s secret campaign spending shows exactly why we should do that,” and the Daily Telegram went further to recommend “Michigan stop[] filling Supreme Court vacancies by election, and adopt[] an appointment system based on checks and balances.”

Ohio’s election was also scrutinized, with an opinion piece from the Akron Beacon Journal arguing for a new system of selection, “Might voters have sent a message of consistency in judicial philosophy? Hardly. O’Neill and Kennedy are far apart in their approaches. What Ohio has in this episode is yet another argument for merit selection of justices. The election of justices is infected enough with political money. Add the name game, and the result too often falls short of delivering the best to the court.”

Sources: Billy Corriher, Money Undermines Judges' Impartiality, USA Today, November 12, 2012; Jane Musgrave, Ex-U.S. High Court Justice Stevens Calls Florida’s Merit Retention System for Judges a Threat to Independent Judiciary, Palm Beach Post, November 9, 2012; Curt Guyette, Justices for Sale, Metro-Times, November 14, 2012; Editorial, The Black Hole of Michigan Judicial Campaign Spending, Holland Sentinel, November 11, 2012; Editorial, End Partisan Voting for Supreme Court, The Daily Telegram, November 11, 2012; Editorial, Cupp's Loss: A Name Game, The Akron Beacon Journal, November 12, 2012.
Also Interesting: (Ohio) Pamela Engel and Jim Siegel, Ohio Supreme Court: New Rules Sought for Justices’ Campaigns, Columbus Times Dispatch, November 13, 2012; Aaron Marshall, Ohio Supreme Court Candidate Who Shunned Donations Ends Up Victorious, The Plain Dealer, November 9, 2012. (North Carolina) Mark Binker, Will Campaign Contributions Come Up In Court Cases?, WRAL, November 14, 2012.

FEDERAL JUDICIARY

Judicial Nomination and Confirmation after Obama Reelection
President Obama’s reelection has generated increased speculation on the future of judicial nominations and confirmations. According to Roll Call, “Senate Democrats could be on a collision course with Senate Republicans when it comes to using the lame-duck session to confirm 19 judicial nominations that have been held up this Congress… Of the 19 judicial nominations awaiting floor action, there are four circuit court nominees and 15 district court nominees. Democrats contend that 17 were approved by the Judiciary Committee on a voice vote or with Republican support.”

Another Roll Call article also points to division within the Republican bloc in the Senate on the issue: “President Barack Obama’s re-election last week has exposed an internal rift among Republican senators over whether to clear the way for confirmation votes on long-stalled judicial nominations during the lame-duck session or delay them until the next Congress.” The article also adds, “Obama signaled Wednesday he may place a greater emphasis on judicial nominations in his second term than he did in his first, nominating seven new candidates to district court judgeships and one to a special trade court, even though those nominees are highly unlikely to be confirmed in the current Congress.”

The American Prospect features an opinion piece advising Obama to look to former President Bush for inspiration in his second term, and to focus on the importance of the judiciary to his legacy. The piece argues, “On the day President Obama took office, there were 55 vacancies on the federal bench. Today there are 82. To be fair, much of the blame for these vacancies rests with Senate Republicans, who ran an unprecedented campaign of obstruction during President Obama’s first term. …The administration cannot lay all the blame for the vacancy crisis at the filibuster’s feet, however. Obama has been genuinely slow to name nominees, and he’s been just as reluctant to throw his political weight behind his judges.”

Another opinion piece, in Politico, defends Obama’s nominations, saying, “Some critics blamed Obama for recommending insufficient nominees in 2009; however, the administration subsequently quickened the pace. Before making nominations, the White House has robustly pursued the advice and support of Republican and Democratic senators who represent jurisdictions where vacancies arose. Obama has tapped noncontroversial individuals, who are intelligent, ethical, industrious and independent, possess balanced temperament and enhance diversity vis-à-vis ethnicity, gender and ideology.”

Sources: Humberto Sanchez, Nominations Battle Could Resume in Lame Duck, Roll Call, November 13, 2012; John Gramlich, Republicans Split on Judicial Nominees, Roll Call, November 14, 2012; Ian Millhiser, The Judicial Bush Doctrine, The American Prospect, November 15, 2012; Carl Tobias, The Judicial Vacancy Crisis, Politico, November 16, 2012.

FUNDING

The Fiscal Cliff and Possible Budget Cuts
If Democrats and Republicans can not reach agreement on the budget by the end of the year, the judiciary could be substantially impacted according to a post on the Blog of Legal Times. Citing analysis provided by the Administrative Office of the U.S. Courts to the Senate Judiciary Committee, the post says, “the 8.2 percent across-the-board cuts would strip $555 million from the courts and would be ‘devastating’” and “those cuts could mean layoffs of one out of every three court staff, suspended pay to private attorneys, significant cuts to court security, and a suspension of pay for jurors.” Senator Chuck Grassley (R-Iowa) responded with a letter “asking for a more comprehensive plan that incorporates other operational expenses, such as travel and conferences.” The senator “criticized the courts earlier this year for spending more than $1 million for a United States Court of Appeals for the Ninth Circuit conference in Hawaii. He said in a statement Thursday that he would like to see those types of gatherings cut before layoffs and court closings.”

Senate Patrick Leahy (D-VT) released a statement this week on the potential budget cuts: “Our courts are already overburdened, and the sequester will result in cuts that will force courts to hear fewer cases, which means that court proceedings will be delayed even longer.  This will be especially damaging in civil cases, where there are already over 40,000 cases that have been pending for more than three years.  Sequestration cuts could even result in the suspension of civil jury trials.  Even more alarming, is what is at stake in the criminal context.  If probation and pretrial services offices are downsized or closed, Federal courts and their staff will be unable to properly supervise thousands of persons under pretrial release and convicted felons released from Federal prisons.  It is critical, then, that we work together.”

Sources: Todd Ruger, Grassley Urges U.S. Courts to Better Prepare for Funding Cuts, The Blog of Legal Times, November 8, 2012; Letter from Senator Chuck Grassley (R-Iowa); Statement of Senator Patrick Leahy On Judicial Nominations.

MISCELLANEOUS

Pennsylvania Judges Sue to Change Mandatory Retirement Provision
Six judges from Pennsylvania are suing over a provision that mandates that they retire at 70. According to the Wall Street Journal Legal Blog, “Standing in their way is a 1990 decision by the U.S. Supreme Court, Gregory v. Ashcroft, that upheld a similar mandatory retirement requirement in Missouri. But the judges and their lawyers are hoping that advances in medicine, new research on aging and evolving law on the 14th Amendment’s Equal Protection Clause will help them sustain their challenge.” The lawsuit specifically points to “new evidence that the prevalence of cognitive impairment in older Americans has decreased, even since the early 1990s.” The article goes on to say, “The challenge could have national implications,” as, according to the National Center for State Courts, “Thirty-three states and the District of Columbia enforce age limits for at least some of their judges.”

Source: Joe Palazzolo, Pennsylvania Judges Sue over Mandatory Retirement Provision, Wall Street Journal (Law Blog), November 14, 2012.