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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 focus on the a highly-contested judicial race in Wisconsin, a judicial reform plan in Florida, judicial appointment systems, and more.

  • Maria da Silva
April 19, 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.

Judicial Reform

  • On Friday, the Florida House voted along party lines to overhaul the state Supreme Court after Republican House Speaker Dean Cannon scaled back certain reform proposals that had met resistance, including one proposal that would have increased from 50 to 60 percent the approval vote required for a judge to be retained. The proposal advanced by the House would expand the court from seven to 10 justices and split it into two divisions — one civil and one criminal — but would not do away with Judicial Nominating Commissions. The GOP-led effort has sparked heated debate, both in the public arena as well as in the Senate, which has not voted on a companion bill. An editorial in USA Today deplores the proposal as a partisan court-packing attempt to control the judiciary, and a press release issued by the nonprofit court advocacy group Floridians for Fair and Impartial Courts urged the legislature “to retreat from an ill-advised attempt to seize control of Florida’s third branch of government.” Stephen N. Zack, president of the American Bar Association, struck a similarly cautionary note, stating that the proposal will not only “pack the state’s highest court with handpicked political friends,” of the governor, but will also raise court costs in the face of a widespread court budget crisis.

State Judicial Selection

  • Justice David Prosser declared victory in Wisconsin’s contentious Supreme Court election after a canvass of county vote tallies gave him a 7,316 vote lead. The vote margin, however, is within the 0.5 percent limit that will allow his challenger, JoAnne Kloppenburg, to request a statewide recount at taxpayers’ expense. Kloppenburg has not yet decided whether she will request a recount. With the final outcome of the race still uncertain, the implications of the election continue to be debated in editorials across the country. According to the Milwaukee Journal Sentinel editorial board, the 2011 election illustrates that because “politics has overwhelmed the process of choosing . . . justices,” the state should switch to an appointment system. Former Wisconsin Supreme Court Justice Janine Geske said the costly and negative 2011 election is proof that it’s time to change how Wisconsin justices are chosen. According to Geske, “candidates themselves have been drowned out by the independent ads and unfair and misleading ads.” A New York Times editorial agrees that special interest spending in the spring judicial election was out of control, and also says that “[a] merit panel should pick the state’s justices.” Finally, a special edition of Gavel to Gavel notes debates about the costs and benefits of judicial merit selection in numerous other states, and documents numerous proposals currently pending in state legislatures across the country to institute, alter, or abolish merit selection.
  • In an op-ed in Monday’s New York Times, Erwin Chemerinsky, Dean of the law school at the University of California, Irvine, and Hofstra law professor James Sample respond to calls to replace judicial elections with appointment systems by arguing that “judicial elections are here to stay. Given this reality, we should focus on balancing important First Amendment rights to financially support campaigns with due process concerns about fair trials.” The authors suggest that “[s]tates with elected judges should restrict how much can be contributed to a candidate for judicial office or even spent to get someone elected,” and note that while the U.S. Supreme Court has rejected spending caps in the context of legislative and executive elections, the Court should hold that “the compelling interest in ensuring impartial judges is sufficient to permit restrictions on campaign spending that would be unconstitutional for nonjudicial elections.” 
  • Newly appointed Iowa Supreme Court Justice Tom Waterman defended the state’s judicial merit selection system during a panel discussion about judicial independence at St. Ambrose University. Justice Waterman compared Iowa’s merit system with Illinois’s judicial elections, noting that “[a]cross the river, millions of dollars are poured into races and lawyers and judges are making promises.” Meanwhile, the Iowa Senate rejected Governor Terry Branstad’s appointment of William Gustoff to the State Judicial Nominating Commission. Gustoff previously represented clients in a suit attacking the panel’s constitutionality, but has since withdrawn as counsel.
  • A Livingston Daily editorial urges the Michigan legislature to put a judicial selection reform plan presented by retired state Supreme Court Justice Elizabeth Weaver “on the front burner.” While the editorial does not unequivocally endorse Weaver’s reform proposals, it notes that Michigan’s highly partisan Supreme Court elections have become high-cost, highly contentious races that are undermining the judiciary. 

Court Resources

  • The trial of a man accused of murdering his wife will be delayed because of budget cuts and courthouse layoffs throughout Alabama. After announcing 120 courthouse personnel layoffs effective May 1, Alabama Chief Justice Sue Bell Cob is also in the process of authorizing presiding circuit judges to shutter court offices for one day each week if needed. The personnel cuts mean that Jefferson County Courthouse does not have enough bailiffs and court officers to keep it secure for the aforementioned murder case. As courtrooms across the nation struggle to adjust to funding shortfalls, the Kansas Supreme Court Chief Justice Lawton Nuss expressed a mixture of frustration at the challenges facing the Kansas judiciary, and pride at the courts’ resilience. According to Nuss, “[t]his is a very difficult time for the judicial branch, but it’s been most gratifying to see how judges and employees have pulled together.”