U.S. Senator and presidential candidate Ted Cruz’s proposal to force U.S. Supreme Court justices to run in retention elections (see Gavel Grab) is “monumentally silly,” says Justice at Stake Campaign Executive Director Bert Brandenburg in a National Law Journal op-ed (available with free online log-in or through Google search).
Cruz’s proposal to amend the constitution to require periodic retention elections for the justices follows recent SCOTUS rulings on healthcare and marriage that have riled conservative critics. The idea is fraught with both practical and ethical challenges, notes Brandenburg.
“If sending Antonin Scalia or Ruth Bader Ginsburg out on the campaign trail sounds like a Saturday Night Live skit, it’s because it would turn more than 225 years of American constitutional culture on its head,” he writes. “Our founders — who knew something about popular sovereignty — consciously avoided electing judges because they wanted courts’ rulings to be based on the law and the constitution, not political pressure.”
Cruz joins other presidential candidates who have called for term limits and other restraints on the Supreme Court in the wake of recent controversial rulings. He has also said he will make reform of the court a central plank in his campaign platform.
Oklahoma’s merit selection system for choosing appellate court judges got a boost from State Representative Emily Virgin (left), on The Oklahoman’s NewsOK website. “Keeping partisan politics off the bench has served Oklahomans well for nearly 50 years,” she writes, in an op-ed headlined “Judicial selection system has served state well.” The piece refutes arguments made in a previous op-ed by another writer that the state’s judicial nomination commission is dominated by lawyers.
Rep. Virgin also notes that Oklahoma’s merit selection system was approved by the state’s voters back in 1967, in direct response to a 1965 bribery scandal. That scandal resulted in the convictions or resignations of three Oklahoma Supreme Court justices. “Election of Supreme Court justices, involving campaigns and political contributions, played a significant role in the court’s bribery scandal,” the op-ed points out.
The state’s merit selection system has come under political attack from time to time in recent years, most recently in response to a ruling by the state supreme court that a granite Ten Commandments marker must be removed from the Capitol grounds. (See Gavel Grab.)
In these other dispatches about fair and impartial courts:
- Above the Law reports that public opinion of the Supreme Court is more polarized than ever before, with an overall approval rating of 49 percent and GOP approval down to 18 percent – 33 points lower than last summer.
- Tennessee Supreme Court Justice Gary Wade announced his plans to retire in September, according to the Associated Press. Justice Wade was one of three justices who were retained last year despite facing record breaking political opposition.
In a piece for the Kansas City Star headlined “Gov. Sam Brownback’s war on the courts will be historic,” columnist Steve Rose likens Brownback’s defiance of court authority to that of Arkansas segregationist governor Orval Faubus. “Faubus and his successor ilk are alive and well in Kansas,” Rose writes. He goes on to note that while Faubus only resisted one court order, the Supreme Court’s ruling on school integration, “In Kansas today, there are four separate threats to the courts by politicians in the Legislature and by the governor.”
Those threats revolve around marriage rights for same-sex couples, school funding, and the constitutionality of a court reorganization scheme passed into law last year. “Since when did we get to pick and choose which court orders to obey?” Rose asks, adding that the state appears to be barreling towards a constitutional crisis.
Long-running efforts by Kansas’s governor and legislature to challenge the structure and authority of the state’s court system have been documented in Gavel Grab.
The Buffalo News reports a welcome increase in diversity among a pool of finalists for a seat as a magistrate judge on the federal bench in New York state. The recommendations were made by a merit selection committee charged with recommending candidates for one of three openings on the bench. Unlike federal judges holding higher offices, magistrate judges do not require presidential nomination or U.S. Senate confirmation.
Noting that the federal bench in Buffalo is currently all male as well as all white, the paper reports that the five finalists include three women, one of whom is African-American. Filling the vacant posts within the court system is urgent, the paper adds, noting: “The openings are significant because Buffalo’s federal courts are among the busiest in the nation and there’s a tremendous backlog of cases. One of the consequences is that the median civil case here now takes five years to reach trial.”
Justice at Stake advocates for diversity as an essential element of a fair and impartial court system.
Is an age-old tension between the political branches and the judiciary escalating to a new and dangerous level? In Oklahoma, where several legislators recently called for impeachment of state Supreme Court justices, attorney David Poarch fears that’s the case.
Poarch is president of the Oklahoma Bar Association. In a Norman Transcript op-ed, he labels the impeachment call (after the court had ordered removal of a Ten Commandments marker from the capitol grounds–see Gavel Grab for background) “just one example in a sea of comparable unending rants in response to decisions handed down by our highest courts.” At both the state and national level, he says, the fire of hostility against our courts is fueled by partisan politics. Poarch warns of damaging fallout:
“To all appearances … this historical tension appears to be escalating at an unprecedented pace to a disrespectful level of outright hostility and malevolence. The increasing political attacks on our judges and justices diminish the independence of the judiciary, and at least equally, if not more importantly, the public’s confidence in our system of justice. The distinction between fair criticism of judicial opinions and intimidation and threats directed at judges is an important one.”
In these other dispatches about fair and impartial courts:
- Regarding a ruling by the Eighth U.S. Circuit Court of Appeals, SCOTUSblog reports, “Appeals court wants [Supreme] Court to take new look at abortion.”
- The Wisconsin Supreme Court is widely viewed as fractured however it has issued only one 4-3 ruling this year, the Milwaukee Journal Sentinel said in a blog post.
The West Virginia Judicial Investigation Commission has thrown out an ethics complaint lodged against state Chief Justice Robin Davis after an ABC News investigative report raised questions about election-year fundraising and a private Lear Jet deal.
The commission said Maloney put out a press release on the letterhead of his office after he submitted the complaint, in what “appears to the commission to be a blatant attempt to garner free publicity for himself.” It said he “chose to violate the confidentiality rule for filing complaints when he issued the rapacious press release that was designed to convict Justice Davis in the court of public opinion before any decision on the merits was reached by (JIC).” Read more
Tags: West Virginia
The Texas Tweeter Laureate is … a judge. Yes, you read that correctly. And in an intriguing Washington Times op-ed, Texas Supreme Court Justice Don Willett shows flashes of the humor and succinctness that are part of his social media effort to demystify our courts:
- “People know far more about American Idol judges than judges.”
- “I’m probably the most avid social-media judge in America—which is like being the tallest Munchkin in Oz. It’s a bar so low it’s subterranean. But apparently I’m part of the Twitterati (think Illuminati, but with gavels).”
- “People are genuinely amazed that a nerdy judge can be engaging, and believe me, my geekery is on an uber-elite level. But it’s rare for a Supreme Court Justice to step out from behind the bench and demystify things.”
- “If you’re a Texas Supreme Court Justice hopscotching across 254 counties, trying to tattoo your name onto the noggins of millions of voters, you must find creative ways to raise visibility and build awareness. Twitter, Facebook, etc. are low-cost but high-yield ways to leverage the support of key influencers and opinion leaders. Bottom line: It’s political malpractice not to engage people smartly via social media.”
The counsel for the conservative Judicial Crisis Network, Jonathan Keim, writes in a Washington Times op-ed that the Supreme Court got it wrong when it upheld in April a Florida ban on judicial candidates directly soliciting campaign money.
After disagreeing with the high court’s interpretation of case law, Keim goes further to criticize limits on speech in judicial elections in general. “Restrictions on speech in judicial elections virtually guarantee that the government will use its power—power that ultimately comes from the people anyway—to insulate itself from accountability. And that is fundamentally undemocratic,” he writes.
Justice at Stake said the following when the court decided the case, Williams-Yulee v. The Florida Bar: “Bans on personal campaign solicitations by judges and judicial candidates are entirely reasonable provisions that work to preserve public trust in our courts. Today’s decision helps judges, by saving them from the compromising job of raising cash from people whose cases they will decide. It helps our court system, by shoring up its ability to be fair and impartial. And it helps the public, by reassuring them that they will not find themselves in court before a judge who has received a check directly from the opposing party in their case.” You can read other discussion of the ruling in earlier Gavel Grab posts.