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The Week in Fair Courts

In the Brennan Center’s latest round up of last week’s Fair Courts news, we examine the Supreme Court race in Wisconsin, judicial selection in Kansas and Nevada, recusal rules in New York, and more.

  • Maria da Silva
March 22, 2011

Here is the Brennan Center’s round up of last week’s 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.

State Judicial Selection

  • The race for a seat on the Supreme Court of Wisconsin between incumbent Justice David Prosser and JoAnne Kloppenburg, an assistant state attorney general, is officially non-partisan, but the contest is showing signs of becoming an intense, ideologically-driven contest. Some observers wonder whether the state’s newly-passed collective bargaining law will become an issue in the Supreme Court election, and a recent TV advertisement by the Greater Wisconsin Committee alleges that Justice Prosser will act as a rubber stamp for Republican Governor Scott Walker — who led the charge to strip most public employees of collective bargaining rights. According to the Beloit Daily News, Justice Prosser denies that suggestion. Meanwhile, Justice Prosser is on the defensive over several heated statements made in an email exchange between justices last year, which have recently come to light.
  • The West Virginia Senate killed a measure that would have increased the funds available for the state’s pilot public financing program for 2012 state Supreme Court elections. The pilot program has several sources of funding, and the state intends to inject $3 million — from rebates from the state auditor’s Purchasing Card program — into the program by 2012. The pilot program, which House Republicans opposed, was presented as a way to curb the influence of special interest money in judicial elections.
  • A bill seeking to replace Kansas’s merit selection system for Court of Appeals judges with an appointment system has received mixed public reaction. A Kansas City Star editorial denounces the move as compromising the state’s well established system, saying it is likely to increase the partisan politics involved in selecting Kansas judges. The editorial notes that “[l]awmakers who favor the change conveniently ignore the problems inherent in seating judges who would be beholden to the very politicians who make the laws that judges are expected to review.” In contrast, the Kansas Watchdog supports the bill, arguing that the current process affords a disproportionate influence to the state bar association.
  •  “The next cycle of judicial elections in Nevada could be nastier than usual if the Nevada Supreme Court eases restrictions on campaign behavior — a real possibility given recent decisions from the U.S. Supreme Court and last fall’s voter rejection of merit selection.” So says an article in the Las Vegas Review-Journal, which wonders if Nevadans will soon witness the type of contentious judicial elections seen — and decried — in other states. The article came in response to a recent hearing of the Standing Commission on Judicial Ethics and Election Practices, during which the state’s justices indicated they favor lifting limits on what judicial candidates can say and how they raise campaign cash. An administrative opinion is expected from the court in upcoming months. The Review-Journal also editorialized on the topic.

Judicial Reform

  • Illinois judges will now undergo mandatory, confidential performance evaluations. The evaluations, which will focus on helping judges identify and fix performance problems, are the final program to be unveiled as part of an initiative to improve public confidence in the judiciary instituted by the Administrative Office of the Illinois Courts in 2008. Chief Justice Thomas Kilbride expressed his support for the program, describing it as “an extremely important step in making a good judiciary even better.”
  • New York’s proposed new rule aimed at removing the influence of campaign money from courtrooms has received considerable attention from judicial advocacy groups and national media. In a letter to Court of Appeals Chief Judge Jonathan Lippman, the Brennan Center for Justice and the Justice at Stake Campaign commended the Court’s commitment to positive reform and recommended it adopt additional rules to address independent expenditures in judicial elections and to prevent potential “judge shopping.” A Chicago Tribune editorial highlighting New York’s new disqualification rule contends that the rule may have a limited impact if independent expenditures against judicial candidates rise. Meanwhile, the New York Times editorial board discusses the need for the U.S. Supreme Court to similarly establish a comprehensive recusal policy, stating that questions about judicial impartiality “are too serious to ignore.”
  •  “State House Speaker Dean Cannon says they threaten the freedom and liberty of Americans. U.S. Rep. Sandy Adams says they disregard our 'national sovereignty.' Are they talking about Al-Qaida? Osama bin Laden? No. American judges.” An op-ed in the Orlando Sentinel criticizes a bill that aims to alter Florida’s judicial merit selection system, which cleared a state House committee last week. The proposal to add three additional members to the Florida Supreme Court, and split the Court into civil and criminal tribunals, also contains language requiring Senate confirmation of gubernatorial appointments to Florida’s appellate courts and eliminating nominating commissions for appellate judges. An article in the Gainesville Sun similarly worries that the proposed alterations will adversely affect the state’s judiciary.

Court Resources

  • “The opportunity to access justice in our courts is becoming as much a luxury as a Louis Vuitton bag.” So contends American Bar Association President Stephen Zack in a commentary in The Hill, which condemns the funding crisis facing state courts across the country. Echoing Zack’s concerns, Minnesota Supreme Court Chief Justice Lorie Gildea recently stated that the public ought to be outraged over the way state courts are hurt by budget cuts. Chief Justice Gildea claimed that in three recent cases felony convictions for violent crimes were reversed on appeal because the understaffed judiciary was unable to meet mandated requirements for speedy trials. Reuters similarly warned that the federal judiciary may be compromised if Congress doesn’t negotiate a new budget and the federal government is forced to close down.

Diversity on the Bench

  • The diversity of the federal bench is being compromised by the judicial confirmation crisis, according to Leslie Proll of the NAACP Legal Defense and Educational Fund. Proll points out that 40 percent of President Obama’s nominees to the federal bench are racial or ethnic minorities, and that the slow pace of confirmations undercuts the President’s efforts to diversify the judiciary. Moreover, three of the four nominees facing the highest hurdles for Senate confirmation are racial minorities: Goodwin Liu would be the lone Asian American in the Ninth U.S. Circuit Court of Appeals; Edward Chen would become the first Asian American to serve on the district court in the Northern District of California; and Arvo Mikkanen would be the only Native American on the federal bench if confirmed.

Impeachment and Disciplining of Judges

  • The New Hampshire House voted last week to direct the House Judiciary Committee to investigate a marital master — a court officer who handles family court cases—for possible impeachment. The resolution allows the panel to investigate any justice in the superior court system. According to the National Center for State Courts, the state legislature has sought to remove or impeach justices on several occasions in recent years.  The minority committee report characterized the bill as a “breach of due process of staggering proportions,” and an editorial in the Concord Monitor denounced the effort as a “witch hunt.”


  • After three Iowa Supreme Court justices were removed by voters last November in response to the Court’s unanimous decision upholding same-sex marriage, the remaining justices have endeavored to engage with the public over the role of the Supreme Court by giving speeches and granting interviews with reporters. On May 4, the justices will appear on a morning radio program at the Iowa Judicial Branch Building, which houses the Iowa Supreme Court. The program is one of numerous “Law Day” scheduled across the state that week, including tours of the Supreme Court and the justices’ chambers and an opportunity for private citizens to speak with the justices.