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This Week in Fair Courts

In the Brennan Center’s latest weekly round up of Fair Courts news, we focus on New York’s proposed judicial disqualification rule, judicial election spending in Wisconsin and Alabama, judicial selection in Oklahoma, North Carolina, and Montana, and more.

  • Maria da Silva
February 19, 2011

Here is the Brennan Center’s weekly round up of Fair Courts news, where we recap stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary. It is a summary of the Brennan Center’s Fair Courts E-lert, which goes out weekly and is available on our website.

Feature Story

  • “Nothing could be more important for the judiciary than to have the public see that we’re neutral arbiters of disputes. If we don’t have that, we don’t have anything.” So said New York’s Chief Judge, Jonathan Lippmann, explaining the need for a proposed new judicial disqualification rule. Chief Judge Lippmann announced the new rule — which will prohibit elected judges from hearing cases involving parties or lawyers who gave $2,500 or more to their campaigns in the prior two years — in his state of the judiciary address on Tuesday. The rule also ensures that neutral decision-makers — in this case, court administrators — rather than the individual judge, make the recusal decision. Concerns have been raised about the rule’s silence on independent campaign expenditures and the possibility that it would open the door to gamesmanship and judge-shopping.

State Judicial Selection

  • Incumbent Justice David Prosser and challenger JoAnne Kloppenburg advanced in Tuesday’s primary election for a seat on the Wisconsin Supreme Court, and will compete in the general election on April 5. Both candidates accepted public financing, but special interest spending may dominate in the general election, given the court’s current 4–3 ideological breakdown and recent trends in outside group spending in judicial elections. In the primary contest, the conservative Wisconsin Club for Growth spent more on TV advertising than all four candidates combined — 70 percent of all TV spending, according to the Brennan Center.
  • The Oklahoma Supreme Court rejected a challenge to the state’s judicial nominating commission this week. The commission’s membership is selected from six regions based on Oklahoma’s previous six congressional districts, but since 2002, the state has had only five congressional districts. The nominating commission came under scrutiny when outgoing Governor Brad Henry chose to appoint District Judge Noma Gurich to the state Supreme Court. Gurich — who stated she would not take her seat until the constitutional challenge was resolved — has not yet been sworn in, but the Supreme Court upheld her appointment, ruling “that the commission’s decisions are valid when decided by a majority of its members” regardless of any changes to the state’s congressional allocation.
  • Several states are debating whether mandatory disclosure of judicial candidates’ party affiliations promotes transparency or injects politics into the judiciary. A bill recently introduced in the North Carolina legislature would restore party labels starting in 2012 for candidates for District Court, Superior Court, Appellate Court, and the state Supreme Court. Former North Carolina Supreme Court Justice Bob Orr said an appointment-retention system would be a better way to insulate judges from politics. Similarly, a proposed referendum for the 2012 ballot in Montana would require candidates for district court judgeships and the state Supreme Court to run with partisan labels. Currently, judicial elections in both states are nonpartisan, but supporters of the Montana proposal argue that party labels guarantee voters are aware of judges’ “individual biases.” Meanwhile, a bill in Missouri — which is nationally recognized for the appointment-retention system under which most of its judges are chosen — would institute nonpartisan elections for any judgeships not covered by the merit selection system.
  • Judicial candidates in Alabama raised more money in 2010 than counterparts in any other state, prompting several editorials to criticize the state’s judicial elections. The Anniston Star compares Alabama’s Supreme Court races to a “figurative walk down the Las Vegas strip: All lights, all flash — and all about money,” while the Mobile Press-Register worries high levels of campaign fundraising and special interest spending create an impression that justice is for sale.

Diversity on the Bench

  • State Supreme Courts continue to make strides toward greater diversity. In Hawaii, the senate confirmed Judge Sabrina McKenna to the bench on Wednesday, making her the state’s first openly gay high court justice. Meanwhile, on the same day, Justice Cynthia Kinser was sworn in as the first female chief justice of the Virginia Supreme Court.

The Federal Judiciary

  • Both the House and Senate introduced legislation to establish an independent office charged with investigating judicial ethics violations. Both versions of the bill limit the inspector general’s mandate to investigate judicial ethics violations — rather than reviewing or investigating the merits of specific legal decisions — to insure the new office does not undermine the independence of the judiciary. The Senate version would grant the inspector general power over the Supreme Court — the House version would not. Meanwhile, Rep. Christopher Murray, (D-CT), plans to introduce legislation to require Supreme Court justices to disclose their reasons for recusing themselves from hearing a case. The bill will also require the high court to formalize a procedure through which parties can “request the court to decide whether a particular justice has a conflict of interest.”