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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 write on a campaign finance case in front of the U.S. Supreme Court, the ongoing battle for a Wisconsin Supreme Court seat, attacks on the judiciary, and more.

  • Maria da Silva
March 29, 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.

Feature Story

  • The U.S. Supreme Court heard oral arguments today in McComish v. Bennett, a case challenging a component of Arizona’s public financing law that will have implications for public financing nationally. While critics contend that the “triggered matching funds” provision of the law violates free speech rights, numerous amicus briefs supporting the provision emphasize that public financing is essential to maintaining the integrity of elections. Several briefs highlighted the need for public financing in judicial elections in particular. In its amicus brief, Justice at Stake warned that the “deluge of special interest money is eroding public trust in America’s courts,” and described public financing laws such as Arizona’s as “one of the most powerful reforms in shielding courts from special-interest influence.”

State Judicial Elections

  • Wisconsin’s upcoming Supreme Court election between incumbent David Prosser and challenger JoAnne Kloppenburg continues to make headlines. Anger at Governor Scott Walker’s move to change the state’s collective bargaining provisions invigorated Kloppenburg’s base, and liberal-leaning organizations have began an ad campaign attacking Prosser for being a “rubber stamp” for Walker. The Greater Wisconsin Committee also launched a TV ad suggesting Prosser protected a priest accused of sexual abuse. During a debate held last Friday at the UW-Madison campus, Prosser decried the ad as “one of the worst, most untruthful and misleading ads that has ever been run in a judicial campaign.” Meanwhile, the conservative Wisconsin Manufacturers & Commerce Issues Mobilization Council (WMC) has initiated a fundraising drive to finance a “television ad campaign to counter the distortions from government unions and their allies about Justice [David] Prosser.” Wisconsin Supreme Court races have historically featured heavy special interest spending — in 2008 the partisan and costly Supreme Court election campaign, special interest group’s spending accounted for 89 percent of dollars spent on television advertising — and this year, as an editorial in the Racine Journal Times observes, “[t]he mud has indeed hit the fan…” The editorial goes on to question whether judicial elections are the right way to select judges and argues that judicial appointments would better preserve fair and impartial courts by eliminating the “taint of special interests.”

Judicial Reform

  • Last week the Arizona Senate approved a measure to eliminate the state bar’s role in selecting attorneys to serve on the state’s judicial screening commissions. Currently, the state bar nominates five attorneys to each of the 16-member commissions. The new proposal — which will be sent to voters in 2012 if approved by the House — would allow the governor to appoint all commissioners. The bill’s sponsor, Republican state Senator Ron Gould, said the measure is intended to ensure that a group of insiders don’t unduly influence who picks the state’s judges. An editorial in the Arizona Republic disagrees, however, arguing that the bill undermines Arizona’s successful merit selection process and threatens to compromise judicial independence by paving the way for “politically packed” commissions. Several other judicial reform proposals have been discussed in the state legislature, including a more comprehensive proposal — currently pending in the House — that would require Senate confirmation of all judicial appointments.
  • “This is a terrible, terrible bill that’s hated by the courts…I will not be a participant in changing our judicial selection to make it more political.” So stated Kansas Senate Judiciary Chair Tim Owens after House Republicans’ attempted to reinvigorate a proposal to replace the merit selection system of Kansas Court of Appeals judges with judicial appointments by the governor. Currently, in the event of a vacancy on the Kansas Supreme Court or Appeals Courts, the Nominating Commission sends three candidates to the governor for consideration. If the governor does not make a selection within 60 days, the Chief Justice of the Supreme Court makes the selection. A previous bill passed the House earlier this session but never progressed in the Senate. Representative Lance Kinzer amended the appeals court measure onto a current bill dealing with restriction that retired judges face when returning to the bench under special circumstances, such as judicial shortages.
  • Two bills seeking to advance merit selection for appellate judges in Pennsylvania were introduced by Republican state Senator Jane Earll and have been referred to the Senate Judiciary Committee. According to a blog run by the nonprofit Pennsylvanians for Modern Courts, the diverse coalition of groups and individuals supporting the initiatives includes several retired judges. The group previously argued that the highly publicized corruption trial of former Pennsylvania Judge Mark Ciavarella — in February Ciavarella was convicted on 12 counts, including racketeering and conspiracy — provides evidence that the state needs to get judges “out of the fundraising business” by adopting merit selection.


  • A commentary by Brookings Institution Fellow Russell Wheeler argues that recent proposals to apply the United States Judicial Conference’s Code of Conduct for U.S. Judges to members of the Supreme Court are misdirected and could irreparably harm the judiciary. Criticism of Supreme Court Justices’ for engaging in activity that could cast doubt on their impartiality — most recently, Justices Antonin Scalia and Clarence Thomas received negative press after attending events sponsored by conservative interest group s— prompted calls for Congress to establish clear “mandatory” ethics and recusal guidelines for Supreme Court justices. However, while Wheeler agrees that the Court could benefit from increased transparency surrounding recusal decisions, he worries that creating a means by which litigants may appeal a Supreme Court Justice’s decision would “take the judiciary into uncharted territory, creating a cure that could be worse than the occasional problems created by the status quo’s lack of transparency.” 

Attacks on the Judiciary

  • “The retention vote and accompanying drama has been a good impetus for a discussion about the role of courts, and importance of fair and impartial judiciary.” So believes Justice Thomas Waterman, one of the three new Iowa Supreme Court Justices, appointed after voters ousted three justices last November in response to the high court’s decision permitting same-sex marriage. While the three newest justices on Iowa’s high court have stated they would prefer to refrain from campaigning, they will do so if necessary to win approval on the retention ballot in 2012. The political landscape of the 2012 elections is uncertain, however increased special interest spending and the politicization of judicial elections indicate they will continue to grow “noisier, nastier, and costlier.” Meanwhile, speaking to a group in Iowa, Representative Michele Bachmann of Minnesota condemned activist judges as “black-robed masters” and congratulated the audience on removing three incumbent justices from the bench last November.