Federal Judicial Selection, State Court Diversity, and Costly Campaigns: The Fair Courts E-lert

June 23, 2017


Interest Group Runs Ad Supporting Trump Nominee to Third Circuit

Concerned Veterans for America (CVA), a 501(c)(4) group that receives funding from the Koch brothers, began placing advertisements supporting the nomination of Stephanos Bibas to the Third Circuit, writes Stephanie Francis Ward for The ABA Journal. According to Ward, the advertisement made “some wonder whether it might lead to him recusing himself from certain cases, if he is confirmed.” Citing Caperton v. Massey, where the U.S. Supreme Court ruled that a West Virginia Supreme Court justice should have recused himself after a litigant with a pending case spent substantial sums in support of his election, Charles Gardner Geyh, a professor at Indiana University’s Maurer School of Law, said CVA’s spending “gives rise to the question of whether a federal judge or justice must disqualify himself from cases in which PAC support for (or opposition to) a nominee creates a similar probability of bias when a party closely associated with the PAC has a case before that judge.” Arthur Hellman, a law professor at the University of Pittsburgh School of Law, said “I think many judges are troubled by the increasing politicization of both the confirmation process and the perception of judges.” Interest groups also spent to support the confirmation of Justice Neil Gorsuch to the U.S. Supreme Court, which Hellman says “shows how things that start at the Supreme Court level are now trickling down and being replicated for lower-court nominations.”


New Report Gives Guidance for Collecting Judicial Diversity Data

Lambda Legal and the American Constitution Society released a report this week providing an overview of the current state of practice for collecting demographic data for state judges and judicial candidates and detailing best practices to improve collection. The report, written by Yuvraj Joshi with research by Liz Seaton, argues that diversity data should be collected and released because “[t]here is a strong public interest in ensuring that the judiciary is composed of judges who truly understand the issues faced by all who are subject to its rulings.” The report also argues that collection is important because “[s]tates cannot improve diversity on the bench if they do not know the ways in which diversity is lacking.” The report “examine[s] whether and how 12 states collect and disclose judicial diversity data” and finds that even in states with some diversity reporting, the data collected can be “very limited, typically covering only race/ethnicity and gender.” The report details best practices for data collection, highlighting that data should be comprehensively collected and clearly published. Finally, the authors also give specific guidance for “how states can gather and disseminate data on” on gender identity and sexual orientation and provides “recommendations for key actors.”


Analyst Anticipates Costly Race for Wisconsin High Court Seat in 2018

This week, Wisconsin Supreme Court Justice Michael Gableman announced he would not seek an additional term on the bench next year, teeing up what could be a costly election according to UW-Madison political science Professor Barry Burden. Ann-Elise Henzl for Milwaukee Public Radio reports that some individuals have already announced a run for the seat and Burden predicts “even more candidates” and “a lot of campaign spending.” According to Burden, “[a]fter the last election, which was a sleepy affair, and the one before that, which was not quite as competitive as we've seen in recent years, this will be a return to probably a pretty competitive and hard-fought, expensive race” which has been “the trend over the last decade.” This is, in part, because “this particular seat is quite open and either a conservative or a progressive candidate could win the seat.” Although the balance of the court is not at stake in this race, Burden said “this is an incremental process for both sides, one seat at a time.” Burden also said that the television advertisements that accompany high spending are a “double-edged sword” because “[v]oters don't like it,” but “the advertisements do raise awareness and raise turnout.” 


Oregon Supreme Court Hears Arguments in Ethics Complaint Against Judge Who Refused to Marry Same-Sex Couples

The Oregon Supreme Court has been asked to determine if and how a judge who refused to marry same-sex couples should be disciplined, writes Conrad Wilson for Oregon Public Broadcasting. According to Wilson, the Judicial Fitness Commission found a “number of...issues and policy violations” in the course of their investigation into an incident in which Judge Vance Day “was present when a felon under his supervision held a gun.” These violations include an incident in which Judge Day “intimidate[ed] a college soccer referee at a game in 2013 and instruct[ed] his employees to tell same-sex couples he was unavailable to perform marriages, regardless of whether that was the case.” Wilson writes that “the Oregon Supreme Court could be deciding...whether marriage amounts to an official judicial duty,” as the Judicial Fitness Commission argues. Judge Day argues that “it was not” and that “he’s being targeted for his Christian beliefs,” according to his attorney Ralph Spooner.