Fair Courts E-lert: Wisconsin’s Contentious Primary

February 14, 2013
FEDERAL JUDICIARY

Lost Time and Productivity Due to Delay in Judicial Confirmations
A Blog of Legal Times’ article looks at federal judicial vacancies that have remained open without a nomination, citing data from the Alliance for Justice. “For example, the U.S. Court of Appeals for the Ninth Circuit has a position that has remained open for 3,200 days because of a dispute between California and Idaho senators about which state the nominee should be from. There’s also the 2,655-day vacancy for a judge spot in the Eastern District of North Carolina, 1,925-day vacancy for a spot in the Western District of Wisconsin, and the 1,619-day vacancy in the Northern District of Georgia.” The Hill’s Congress Blog also features an article looking at the lost days, and years, that have accumulated from vacant district court seats, stating: “The total number of days that district judge vacancies went unfilled across the country during President Obama’s first term was greater than 100,000 — representing more than 275 lost years of active judicial work. In many districts, the vacancies mean motions will age for months or years before getting judicial attention, and trial dates will be set well into the future only to be postponed when they arrive due to the priority given by law to criminal process.” The article also cites Congressional Budget Office estimates that “the net waste of public resources from vacant district judgeships during President Obama’s first term was approximately $160 million.”  The article notes that “[i]nflated private litigation costs — from lawyers having to prepare for the same trial multiple times because of delays, for example — surely dwarf this figure.”
Sources: Todd Ruger, Report Shows Judicial Vacancies Stretching Into the Thousands of Days, Blog of Legal Times, February 6, 2013; Michael L. Shenkman, Failure To Confirm Judges Goes Far Beyond Senate, Court Chambers, The Hill’s Congress Blog, February 7, 2013; Alliance for Justice, Judicial Vacancies without Nominees, February 7, 2013.

STATE JUDICIAL ELECTIONS

Wisconsin’s Contentious Primary
Incumbent Justice Pat Roggensack will defend her seat in an upcoming Wisconsin Supreme Court primary on February 19th. Two other candidates are challenging Justice Roggensack in the nonpartisan race, attorney Vince Megna and Marquette University law professor Ed Fallone. The two candidates who receive the highest votes in the primary will move on to the April 2nd general election. According to the Associated Press, “The race for the nonpartisan office has been marked by Megna trying to politicize it, both Megna and Fallone arguing the court is dysfunctional and needs to change, and Roggensack saying she’s far more qualified than her challengers.”  The candidates recently participated in a forum in which they discussed Wisconsin’s history of outside influence and spending in their judicial races.  The Milwaukee Journal-Sentinel reports, “On the subject of third-party spending on the Supreme Court race, Roggensack said she would not ask any groups to stay out of the election process, since she can't control independent spending anyway. ‘People can support the candidate they choose,’ she said.  Fallone said outside spending ‘creates the perception that justice is for sale in our state,’ but that U.S. Supreme Court rulings have limited what Wisconsin lawmakers can do to control it.  Megna, who has asked his opponents to pledge to reject any out-of-state financial support, said he was appalled by how much outside money went to [Wisconsin Supreme Court Justice David] Prosser for his re-election in 2011. ‘The Koch brothers shouldn't have puppets on the Supreme Court to carry forward their agenda,’ he said.”
Sources: Scott Bauer, Challengers Push for Wis. Supreme Court Personality Change, Associated Press via Wisconsin Law Journal, February 8, 2013; Bruce Vielmetti, Wisconsin Supreme Court Candidates Mix It Up During First Joint Forum, Milwaukee Journal-Sentinel, February 7, 2013.

North Carolina Considers Restoring Partisan Labels to Candidates in Judicial Elections
North Carolina state senators Jerry Tillman and Thom Goolsby introduced a bill that would restore partisan labels in judicial elections after the labels were removed in 2002. An article from the National Review Online explains, “Last Thursday, Republican North Carolina state senators Jerry Tillman and Thom Goolsby presented legislation to introduce partisan affiliations to judicial elections… Senator Goolsby explains that without partisan affiliations, ‘There are places where folks put themselves on the ballot [and] nobody knows who they are. Nobody knows where they come from. They’ve not been vetted by anybody or any party, and they just pop up on ballots.’” The article argues that “[c]ontrary to conventional wisdom, partisan labels actually provide useful information for voters, while also managing to preserve judicial integrity,” citing research that “[n]onpartisan elections are less contested and less competitive than partisan elections, and thus are ‘less able to effectively hold judges accountable’; [n]onpartisan elections are more expensive than partisan ones; [n]onpartisan elections have less voter participation, because voters do not otherwise have useful information about the judicial candidates at the ballot box; [and] [j]udges elected in nonpartisan elections are less insulated from public opinion, and are thus more likely to have their decisions align with popular opinion.”
Source: Carrie Severino, North Carolina Considering Partisan Labels in Judicial Races, National Review Online, February 5, 2013.

MERIT SELECTION

Indiana, Kansas, South Dakota, Tennessee Consider Changes to Merit Selection
New bills and a constitutional amendment have been introduced in Indiana, Kansas, South Dakota, and Tennessee that would change their respective merit selection processes. In Indiana, a bill has been introduced that would change the makeup of the nominating commission, which is currently composed of “the Chief Justice (as chair)[,] 3 nonattorneys picked by the governor (1 per Court of Appeals district)[,] [and] 3 attorney elected by the attorneys of the state (1 per Court of Appeals District).” According to Gavel to Gavel, “Under SB 103 the governor would no longer be free to pick any nonattorney from a given Court of Appeals District. Instead, the 4 legislative leaders (House: Speaker & Minority leader; Senate: President pro tempore & minority leader) would provide the governor a list of at least 2 candidates.” Kansas is also considering changes to its merit selection process. According to the Institute for the Advancement of the American Legal System (IAALS), the Senate in Kansas “has approved a proposed constitutional amendment that would eliminate the judicial nominating commission and require senate confirmation of appointments to the appellate courts.” In South Dakota, according to the Rapid City Journal, a bill to expand the state Judicial Qualifications Commission “to nine members by adding two members who would be appointed by the Legislature’s leaders” received unanimous approval on Wednesday by a legislative panel. “Currently, the governor and the judicial branch control two seats apiece [on the nominating commission], along with the State Bar’s three seats. Judicial appointments aren’t subject to confirmation by the Legislature.”  In Tennessee, a constitutional amendment is being considered to “amend the state constitution to allow the governor to appoint appellate judges” and then, according to the IAALS, “the full legislature would be required to confirm appellate judicial appointments.”
Sources: Bill Raftery, Changes To Merit Selection Commissions Advance In Indiana & South Dakota, Gavel to Gavel, February 12, 2013; Bob Mercer, Bill Gives Lawmakers More Say On Judicial Appointments, Rapid City Journal, February 6, 2013; Constitutional Amendment on Judicial Appointments Advances, Associated Press via Knox News, February 5, 2013; Malia Reddick, State Legislatures Take Up Judicial Selection Reform, IAALS Online, February 4, 2013.