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Fair Courts E-lert

In the Brennan Center’s latest Fair Courts E-lert, we focus on state judicial selection in Iowa and Pennsylvania, diversity on the bench in Hawaii, the State of the Union address, and more.

  • Maria da Silva
January 28, 2011

The Brennan Center Fair Courts E-lert summarizes news stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary.

Fair Courts E-lert

January 28, 2010

State Judicial Selection

1.            The Iowa judicial nominating commission’s interviews of state Supreme Court candidates this week were open to the public for the first time ever.  One candidate, Sixth District Chief Justice Patrick Grady, expressed support for the commission’s move, stating that, especially in light of November’s ouster campaign, judges “can’t afford to be a mystery any more . . . [because] when people don’t know how you operate, they get suspicious. And we all know what can happen then.”  After deliberation, the commission forwarded nine finalists to Governor Terry Branstad, including five judges, three lawyers and a law professor. Branstad told The Des Moines Register that while he will inquire about candidates’ general philosophies, he will not ask for their views about particular cases, such as the unanimous decision legalizing same-sex marriage that spurred voters to oust three justices in November’s retention election.

Mike Wiser, Panel Interviews 7 For Iowa Supreme Court, The Quad-City Times, January 24, 2011; Grant Schulte, Public Selection Of Justices Begins; Process Continues Today, The Des Moines Register, January 25, 2011; Grant Schulte, Branstad: No Judicial Litmus Test, The Des Moines Register, January 23, 2011; Grant Schulte and Jens Manuel Krogstad, 5 judges, 3 lawyers among 9 Iowa Supreme Court finalists, January 28, 2011.

2.            “Within our system, judges are not supposed to represent specific constituencies.  They are supposed to answer to the law and to the Constitution. They are not supposed to take into consideration any political concerns.”  Discussing the dangers of special interest influence in judicial elections in a USA Todayarticle, Brennan Center for Justice counsel Adam Skaggs noted that state legislatures, voters, and court scholars across the country have been debating methods of judicial selection, and in particular, how to preserve judicial independence in light of increased special interest influence in judicial elections. Jim Bopp, an attorney for the James Madison Center for Free Speech, argued that judicial elections are the best way for voters to hold “activist judges” accountable.

Clint Brewer and Grant Schulte, Influence of special interests felt in court, USA TODAY, January 27, 2011.

3.            Noting that the Pennsylvania Bar Association will hold public hearings to examine judicial selection and the financing of judicial campaigns, an article in the Pittsburgh Tribune Review suggests that the state legislature may soon consider moving from contested judicial elections to a merit selection system. Pennsylvania Superior, Commonwealth and Supreme courts judges are currently chosen in contested elections, and while switching to appointed judges would require a constitutional amendment, according to Shira Goodman, deputy director for Pennsylvanians for Modern Courts, “the mood in Pennsylvania and the focus on the judiciary show the public is very concerned.”

Bobby Kerlik, Supporters Of Appointed Appellate Judges Like State’s Mood Swing, Pittsburgh Tribune-Review, January 24, 2011.

Federal Judicial Selection

4.            Roslyn O. Silver, the federal district judge who succeeded Judge Roll upon his death, has declared a judicial emergency in Arizona. According to the Arizona Republic, federal felony caseloads have soared to a record high in the state, even as judicial appointments have slowed due to partisan politics in Washington.  Chief Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals told the Wall Street Journalhe hoped Congress would take action in response to the emergency declaration and Senator Charles Schumer informed Politico that he isworking with Judiciary Committee Chairman Patrick Leahy and Senator Lamar Alexander to foster “a really strong and bipartisan effort to get many more judges approved.”

Michael Kiefer, Judge John Roll’s Death Prompts Judicial Emergency, The Arizona Republic, January 26, 2011; John R. Emshwiller And Alexandra Berzon, Decree In Arizona Eases Trial Limit, The Wall Street Journal, January 26, 2011; Mike Allen, Chuck Schumer Warns Of 'Crisis’ In Judiciary, Politico, January 23, 2011.

Diversity on the Bench

5.            “I would like to believe that because of my background and my life experiences, I bring sensitivity to those who may not have been born into a life of privilege, a sensitivity to those whose life circumstances make it difficult for them to conform with all of society’s expectations.”  Speaking about her nontraditional upbringing and her position—if confirmed—as the first openly gay member of the Hawaii Supreme Court, state judge Sabrina Shizue McKenna also stated that she hopes her presence on the court will give “hope to people who feel that they cannot succeed” because they do not fall within traditional demographics.  According to the Honolulu Star-Advertiser, Governor Neil Abercrombie called McKenna’s appointment earlier this week—his first judicial appointment since taking office— “the most important decision” in his career.

Ken Kobayashi, McKenna is named to state’s high court, Honolulu Star-Advertiser, Jan 26, 2011.


6.            Compared to the tension between the executive and judicial branches on display at the 2010 state of the union, this year’s address was relatively uneventful.  Leading up to the address, however, numerous outlets speculated about possible new conflicts in light of Justice Scalia’s speaking engagement at the House Tea Party Caucus and Justice Thomas’ revision of his financial disclosure filings to reflect income his wife received from the Heritage Foundation. An NPRreport concluded that “on Monday night there appeared to be more fizzle than sizzle to the charge of unseemly partisanship” by Justice Alito. Concern remains, however, that interactions between the judicial, executive, and legislative branches have become more politicized. An article in USA Todayexamined the issue and concluded that increased politicization “could lead to public doubts about the ability of judges to be impartial and above politics, particularly when highly charged disputes over health care, gay rights and immigration are moving through the judiciary.”

Nina Totenbergm, Justice Scalia Speaks To Tea Party Caucus, Democrats, NPR, January 25, 2011; Thomas adds wife’s employment to disclosure report, The Associated Press, January 24, 2011; Joan Biskupic,Tensions rise between Supreme Court, politicians, USA TODAY, January 23, 2011.

7.            “There is no moratorium on crime, drug addiction, alcoholism, domestic abuse, or the need for access to justice. If anything, our current economic woes have increased these problems.” So stated South Dakota Supreme Court Chief Justice David Gilbertson in his annual address to the state legislature.  Chief Justices across the county similarly offered mixed messages of efficiency and progress amidst budgetary pressures in recent State of the Judiciary addresses, which are available online through The National Center for State Courts.

Chief Justice David Gilbertson, State of The Judiciary,January 12, 2011; Chet Brokaw, South Dakota chief justice cautions against further cuts in court system budget, Associated Press, January 12, 2011.

Previous editions of the Brennan Center Fair Courts E-lert are available on the Brennan Center website here. If you have comments regarding the E-lert, any articles you’d like to see included, or know of anyone who would like to receive this service, contact Maria da Silva.