Fair Courts E-lert: Washington Bill Would Cut Justices from Supreme Court

March 13, 2013

Washington Bill Would Cut Justices from Supreme Court
Washington State made headlines recently with a bill to reduce the number of justices on the state’s highest court from nine to five, with a random decision structure to decide who would be terminated. According to Think Progress, Senate Bill 5867 says, “On June 30, 2013, all existing judges of the state supreme court, shall meet in public to cast lots by drawing straws… Effective July 1,2013, the positions of the four judges casting losing lots by drawing the shortest straws shall be terminated.” An editorial in the Walla Walla Union-Bulletin condemned the bill, saying, “Baumgartner is attempting give the court what he seems to believe is a taste of its own medicine. He said the reduction in justices follows the court’s reasoning in striking down legislative action that adds requirements to constitutional mandates.” The bill cites two recent decisions by the Court – one ruling that more resources had to be directed to education to meet the state’s constitutional obligations, and one finding unconstitutional a measure that would have required a two-thirds vote in the state legislature to pass a tax increase. Andrew Cohen, a fellow at the Brennan Center, discussed the impact of this bill: “All of these efforts threaten judicial independence not just because of the motives behind them but because of the message they send to judges, to litigants, and to plain, old ordinary citizens. To the justices in Olympia, Washington the message of the ‘court unpacking plan’ is clear: if you render decisions which are unpopular, or which are at least unpopular along a particular portion of the political spectrum, you may lose your job and, worse, the cherished institution for which you work may lose its freedom to issue rulings without fear or favor, even when those rulings deprive powerful political forces of the victories they seek.”
Sources: Aviva Shen, Washington Republicans Try To Fire Supreme Court Judges By Making Them Draw Straws, Think Progress, March 7, 2013; Editorial, Effort to Shrink State's Supreme Court Misguided, Walla Walla Union-Bulletin, March 8, 2013; Andrew Cohen, A “Court Unpacking Plan” Threatens Judicial Independence, Brennan Center Blog, March 8, 2013.


Sequestration Impacts Federal Courts
The beginning of March saw the institution of across-the-board federal budget cuts due to the sequestration, and the courts could be particularly impacted. According to an article in Bloomberg, “For the federal judiciary this year, sequestration will require cutting $332 million, about 5 percent of its current $6.97 billion budget… A four-page directive by the Administrative Office of the U.S. Courts that took effect March 1 put in place so-called emergency measures throughout the federal court system. They include possible suspension of civil jury trials during September, deferring payments to court-appointed lawyers for two weeks and reducing court security 25 hours to 1,933 hours per officer.” The article quotes the director of the Administrative Office of the Courts as saying, “The immediate effects of sequestration will impact everything from the security at courthouses to the supervision of offenders….Work that will allow the courts to operate more smoothly, and in most cases, save money, will either be delayed or worse -- canceled.” The article also highlights the Southern District of New York, where “[t]o avoid furloughs or layoffs, bankruptcy courts … are using money set aside for office supplies and technology to cover wages, said Una O’Boyle, chief deputy clerk for the district. That has meant reusing the blank side of legal briefs submitted by lawyers, O’Boyle said. The old briefs are used as copier paper, she said.”
Source: Tom Schoenberg & Andrew Zajac, Sequestration Hits the Law as Courts Keep Bankers’ Hours, Bloomberg News, March 8, 2013.


West Virginia Seeks to Amend Public Financing Law
A new bill has been introduced in West Virginia to make permanent the West Virginia Supreme Court of Appeals Public Campaign Financing Pilot Program.  The bill, however, also eliminates a matching funds provision in the program that the West Virginia Supreme Court found unconstitutional last year.  According to the West Virginia Record, “The purpose of this bill is to remove language that violates the United States Constitution. The bill makes the West Virginia Supreme Court of Appeals Public Campaign Financing Pilot Program a permanent program and adjusts payments that certified candidates are eligible to receive from the West Virginia Supreme Court of Appeals Public Campaign Financing Program. The bill eliminates additional reporting periods for non-participating candidates and clarifies who is entitled to receive contributions.”
Source: Kyla Asbury, Bill Making Campaign Financing Pilot Program Permanent Sent to House Judiciary, West Virginia Record, March 8, 2013.


Halligan Vote Blocked, Senate Dysfunction Cited
The Associated Press writes, “Senate Republicans on Wednesday blocked the confirmation of federal appeals court nominee Caitlin Halligan for the second time, denying President Barack Obama a key judicial appointment. A majority of senators, 51, supported Halligan's nomination, but Democrats needed 60 votes in the 100-member Senate to get it past Republican objections. Citing her work on lawsuits against gun manufacturers and on behalf of illegal immigrants, Republicans said Halligan is too liberal to sit on the U.S. Court of Appeals for the District of Columbia. The National Rifle Association opposed her nomination.” The article describes the situation in the District of Columbia’s Court of Appeals, “There are currently four vacancies on the court, with nominees from Republican presidents holding a slim, 4-3 majority. The D.C. appeals court is considered one of the most important courts in the country because it handles challenges to most federal rulemaking and oversees federal agencies based in Washington. The Washington court is also something of a pipeline to the Supreme Court. Four of the nine …justices on the Supreme Court served on the D.C. Circuit before being confirmed to the higher court: Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg.” According to Senator Mitch McConnell, “As I’ve said many times before, the role of a judge in our system is to determine what the law says, not what they or anybody else wants it to be…That is not Ms. Halligan’s view of the courts. She views them as a means to ‘enable enviable social progress and mobility’—with the judges, not the American people, using their office to determine what ‘progress’ is ‘enviable.’” The White House released an infographic detailing the delays and setbacks that it has faced in trying to fill the vacant seats in the federal judiciary.
Sources: Henry C. Jackson, Senate Republicans Block Caitlin Halligan, Nominee To DC Appeals Court For Second Time, Associated Press via the Minneapolis Star-Tribune, March 6, 2013; Donovan Slack, Obama Judicial Nominee Blocked ...Again, Politico, March 6, 2013.