Fair Courts E-lert: Controversy in North Carolina Redistricting Case, Judge Asked to Recuse Himself

November 28, 2012

“Judging the Judges”
An article featured in The Economist focuses on the “Money and back-room politicking [that] are contaminating the selection of judges.” The article highlights Iowa in particular as a bad example of outside money contaminating judicial elections: “In 2010, after Iowa’s Supreme Court unanimously struck down a ban on gay marriage, anti-gay-marriage groups targeted three judges with half a million dollars in spending. All three lost their seats.” However, the piece goes on to add that there has been a shift in this year’s elections, arguing, “The anti-gay-marriage groups took aim at another Iowa judge who signed the gay-marriage decision, but he narrowly kept his seat. A judge in Ohio, hit with an outside ad saying that he had ‘expressed sympathy for rapists’, won his seat anyway. Three judges in Florida survived an unusually heavy deluge of outside money to hold on, too. And in Missouri, Arizona, and Florida, voters rejected referendums that would have given politicians more say in picking judges.” The article concludes, “[I]f the past several years are any kind of prologue, politicians will continue trying to hollow out judicial freedom by weakening independent commissions and strengthening the hands of governors and legislators in picking judges. Politicians love to complain about biased judges: but some of them seem to be intent on making the situation worse.”
Source: Judging the Judges, The Economist, November 24, 2012.

“Can The Senate Be Saved?”
Jeffrey Toobin’s piece in the New Yorker covers the hot topic of filibuster reform, focusing specifically on how such reform could influence the federal judicial nominating and confirmation process. Toobin considers recent fights over the filibuster, including under George W. Bush: “[They] worked out a deal that included a promise by the seven Democrats involved that they would no longer filibuster against Bush’s judicial appointees, except in ‘extraordinary circumstances.’ In practical terms, that meant that the Democrats yielded on virtually all of Bush’s judicial nominations, including that of Samuel A. Alito, Jr., to the Supreme Court.” Toobin argues the importance of the Democrats not giving in again as he concludes, “...judicial nominations are likely to be more of a focus for President Obama in his second term. With the House in Republican hands for the foreseeable future, it is unlikely that major legislation will pass both bodies of Congress. But the Senate has a constitutional obligation to take up Obama’s judicial nominees—and the fights over them are likely to be fierce. If Reid and his fellow Democrats give up on filibuster reform, they will likely doom the President’s second-term legacy before he even has a chance to write it.”
Source: Jeffrey Toobin, Can the Senate be Saved?, New Yorker, November 20, 2012.


Controversy in North Carolina Redistricting Case, Judge Asked to Recuse Himself
North Carolina had a contentious election this year, with outside money being funneled into super PACs to support candidate Paul Newby. According to an article in the News and Observer (from Raleigh, N.C.), “There was no mystery as to why some outside groups spent heavily to promote the re-election of Paul Newby as an associate justice on the N.C. Supreme Court. They were looking out for Republican Party interests. Newby’s victory nailed down a 4-3 GOP advantage on the officially nonpartisan court. This, at a time when cases with intensely partisan ramifications are in the pipeline – in particular, a challenge to the Republican legislature’s redrawing of voting district boundaries to give the party’s candidates a big advantage.” This has led some groups to claim “it wouldn’t pass the ethics smell test if Newby, having been propelled to victory by a torrent of advertising paid for by people who want him to rule in the GOP’s favor on redistricting, went on to participate in hearing the case” and have filed a motion in the case asking the judge to recuse himself. According to the same article, “From the look of things, Newby might not have much choice except to recuse himself if he wants to abide by U.S. Supreme Court precedent as well as uphold common-sense standards of judicial integrity.” According to a different blog on the same paper’s website, “Dallas Woodhouse, Americans for Prosperity state director, said the motion would set a ‘horrific standard’ by having judges recuse themselves over money they did not ask for and had no role in spending.”
SourcesJustice Newby in a BindNews and Observer, November 26, 2012; Redistricting Plaintiffs Ask For Newby RecusalNews and Observer (Blog), November 21, 2012. Other Articles: Lynn Bonner, Groups Want Newby to Recuse Himself From Redistricting Case,News and Observer, November 21, 2012; Michael Biesecker, Motion: Recuse Justice from NC Redistricting Case, Associated Press via WRAL, November 21, 2012.


Judicial Reassignment: a Proposal
An opinion piece in The National Law Journal proposes new legislation to change the process of reassignment to reduce the stigma attached to the process. According to the article, “Reassignment occurs when a court of appeals directs that, on remand to the district court, the case be reassigned to another district judge… Reassignment presents problems for both litigators and judges, and this article proposes a legislative solution. We propose a ‘two strikes’ rule with a presumption in favor of reassignment, and that the legislature eliminate the balancing of judicial economy when considering the appearance of justice.” Their proposal has two parts: “First, federal law should provide that cases that have twice been reversed and remanded to the same district court for the same reason are presumptively reassigned to a new judge. That is, when a district court judge is reversed, rules the same way upon remand, and then is reversed again, there would be a statutory presumption in favor of reassigning the case to another district judge who could step in to close out the case… Second, Congress should codify a modified version of the common law of reassignment and eliminate any consideration of judicial economy in determining whether to reassign a case.” The authors “believe that these changes are value-neutral. Instead of advantaging one segment of the bar, they benefit parties who prevail on appeal — irrespective of whether they are plaintiffs, prosecutors or defendants. This modest proposal would not constitute an improper legislative interference into the functioning of the judiciary because the circuits would retain discretion in applying the law. ... Rather than make reassignment mandatory upon a second remand, the two-strikes rule merely makes it ‘presumptively proper.’”
Source: Hannibal Kemerer and James A. Worth, Judicial Reassignment: a Proposal, The National Law Journal, November 19, 2012.