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This Week in Fair Courts – March 7

In the Brennan Center’s latest weekly round up of Fair Courts news, we focus on vacancies on the federal bench, shifting styles on the U.S. Supreme Court, state judicial selection in Wisconsin and Arkansas, and more.

  • Maria da Silva
March 7, 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.

Federal Judicial Selection

  • Referring to the 99 existing vacancies on the federal bench (out of 857 federal district and appeals court judgeships), and the slow pace of nominations and confirmations, Russell Wheeler, a policy analyst with the Brookings Institution, said, “Government is now not doing it’s job, that’s what it comes down to, it’s just not filling these vacancies in a timely manner and there’s enough blame to go around.” According to CNN, approximately 12 percent of all federal district and circuit court judgeships are now vacant. There has been some movement on President Obama’s judicial nominees, however. Last week, the Senate unanimously confirmed Amy Totenberg and Steve C. Jones, both of whom will serve on the U.S. District Court for the Northern District of Georgia. Last Wednesday, one of the President’s most controversial nominees, Goodwin Liu, attended a second hearing on his nomination before the Senate Judiciary Committee. Liu apologized at the hearing for harsh remarks he had made in relation to then-Judge Samuel Alito’s nomination to the Supreme Court, conceding that the criticism of Alito was “unduly harsh” and the result of “poor judgment.”

Supreme Court

  • The justices of the U.S. Supreme Court are “talking more and listening less, with new arrivals Sonia Sotomayor and Elena Kagan proving to be aggressive additions to what was already an assertive court,” a Washington Post article concludes. The two newest justices are both more active questioners than their predecessors, and Chief Justice John Roberts has to play the role of “traffic cop” as the number of questions posed by his colleagues increases.
  • Amid continuing discussion of the ethical obligations that apply to U.S. Supreme Court justices, two Democratic lawmakers proposed legislation to revamp various Supreme Court ethics rules. The proposed bill, sponsored by Reps. Chris Murphy and Anthony Weiner, would “require the Judicial Conference to set up a process for taking in ethics complaints about the justices, and for investigating those complaints. It would require justices to explain their decisions to recuse or not recuse from a case, and if a justice has turned down a motion to disqualify, it would allow the rest of the Court to disqualify the justice.”


  • The Tennessee Bar Association has proposed sweeping changes to the state’s canons of judicial ethics, including Tennessee’s substantive and procedural rules on recusal. The proposal, which has been filed with the state’s high court, takes a “tougher stand on whether judges should oversee cases involving their political contributors,” and “would give litigants a speedy appeal process when judges refuse to step down from a case after being asked.” While the proposal would tighten recusal rules, it would loosen restrictions on political conduct by judges: Under the proposed rules, judges would be “much freer to participate in the political process outside their races . . . [as they would be allowed] to make political contributions and buy tickets to political fundraising events.”

State Judicial Selection

  • Amidst the heated debate over restricting public employees’ collective bargaining rights, which has gripped the Wisconsin statehouse for weeks, Governor Scott Walker proposed a budget last week that could dramatically cut funding for the state’s judicial public financing program. The proposed budget, if adopted, would “all but kill[] public financing for Supreme Court races.” The public financing program, adopted in 2009 in response to concerns about runaway spending in Wisconsin’s court races, is in place for the first time this year; both candidates competing in the April 5 election for a seat on Wisconsin’s high court have opted into the public financing program.
  • State senator Michael Lamoureux has filed a bill that would replace judicial elections for intermediate appellate judges in Arkansas with a merit selection system. According to an Arkansas Times blog post, prospects for the bill’s passage are uncertain since none of the most influential stakeholders — “here the Bar Association, Trial Lawyers and corporate interests that have most to win and lose in court, not to mention minority interests” — have signaled whether they would support or oppose the measure.