A costly and crowded primary race for Pennsylvania’s Supreme Court will be decided today, with a field of 12 candidates about to be whittled to six nominees for three seats. Justice at Stake and Brennan Center ad spending analyses that peg broadcast TV spending at $2.4 million are cited in reports by The Center for Public Integrity and the Sharon (PA) Herald. Meanwhile, a piece in the Philadelphia Business Journal quotes JAS partner group Pennsylvanians for Modern Courts, noting that candidate fundraising at this point in the election cycle is easily outpacing fundraising in the state’s last contested Supreme Court race. And the race’s most successful fundraiser to date, Democratic candidate Judge Kevin Dougherty, notched an endorsement from the state’s senior US Senator, Robert Casey, according to Politics PA.
So far, the race has seen no independent spending, as only candidates’ campaigns have aired ads or spent funds in the primary. Ads have also avoided negative attacks, and ethics has been an important campaign theme. But there is concern that once the primary is over, both spending and negativity in the race may dramatically increase if outside partisan groups jump in.
In a column for the Philadelphia Inquirer’s Philly.com, Duquesne University law professor Bruce Ledewitz notes, “There is a money problem threatening judicial races in America, but it is not the total amount spent. The problem is independent super PAC spending.” He urges who proceed to the general election to “agree among themselves to ask any outside groups who support them to simply contribute to the candidate’s campaign rather than spending money independently.”
Former Alabama Chief Justice Sue Bell Cobb, who wrote a memorable – and scorching – Politico piece earlier this year about the perils of judicial fundraising (see Gavel Grab), is continuing her public plea for judicial selection reform.
In an Associated Press piece published in the Montgomery Advertiser, Cobb says that “money has now become the king” in judicial elections. She argues that law firms and businesses that a judge solicits for campaign donations rarely feel they can refuse. The best solution, she maintains, would be a merit selection system designed to keep financial and political pressure away from judges and out of the courtroom.
“What former Justice Cobb is saying publicly, is what a lot of judges feel privately but are afraid to say,” Justice at Stake Executive Director Bert Brandenburg told AP.
Cobb’s original Politico account of her fundraising experiences sparked significant controversy and a spate of follow-up articles and interviews. She continues to be outspoken about what she has called the “tawdry” process of judicial fundraising and campaigning (see Gavel Grab).
In a guest blog for the Washington Post, Michael S. Paulsen, co-author of The Constitution: An Introduction delves into his analysis of the power of Congress to impeach other officials, specifically federal judges. He explains:
“By implication, at least, our book takes a more charitable view of impeachment than of either court-terminating or court-packing as a check against (believed) judicial lawlessness. Impeachment of judges for perceived deliberate abuse of office by their lawless decisions — ‘a series of deliberate usurpations’ in violation of their oaths — is directed (as the impeachment inquiry properly should be) at individual culpability, not institutional capability. That is more constitutionally defensible in principle, even if it has fairly obviously troubling implications and (like all powers and checks) is capable of being abused.”
In an article published this week, Facing South summarized the importance of the Supreme Court’s recent decision in Williams-Yulee v. The Florida Bar.
The ruling upheld a state’s right to impose limitations restricting a judicial candidate’s ability to personally solicit campaign contributions. Chief Justice John Roberts’ opinion stressed the importance of public confidence in the judiciary, which statistics show is waning. For instance, the article cites a Justice at Stake and Brennan Center for Justice poll that shows nearly 90 percent of voters “think fundraising and money in judicial elections are affecting judges’ decisions on the bench.”
The decision in Williams-Yulee protects all the states that place similar restrictions on judicial candidates. Moreover, the article emphasizes the ruling may encourage states that don’t have similar restrictions – nine of the 39 that elect at least some judges – to adopt the rule. The Brennan Center, a Justice at Stake partner organization, “plans to focus attention on these nine states in an effort to pass bans there.”
See Gavel Grab for more information.
In these other dispatches about fair and impartial courts:
- The Telegraph reports that Travis Akin, executive director of Illinois Lawsuit Abuse Watch, angered some legal experts when he called Madison County, Illinois a “judicial hellhole.” Akin believes the legal environment in the county discourages businesses from relocating there.
- According to philly.com, some candidates for lower courts in Pennsylvania are planning to contest the election results from Tuesday’s election.
- Arkansas Online reports that Special Circuit Judge David Laser of Jonesboro ruled that a case against two men accused of bribing Arkansas Judge Michael Maggio should proceed. Maggio pleaded guilty to the charges against him in January.
Kansas legislators continue to attract criticism from state reporters, evidenced by a recent Kansas City Star editorial.
The legislative session has been extended, at the cost of $43,00 a day, to try and cover a historic budget shortfall. One “particularly malicious measure” ties funding for the entire state judiciary to the Kansas Supreme Court’s ruling on a controversial bill that changed how chief judges are selected.
“One can quibble with the method of selecting chief justices. But threatening to defund the state’s court system is a vengeful and dangerous tactic. Basically, lawmakers are attempting to extort Supreme Court justices to rule in the Legislature’s favor or be shut down.
Conservative Kansas lawmakers have been disrespectful of the state’s courts and judges since rulings on school funding and other matters didn’t go their way. But their willingness to deprive Kansas citizens of a working court process is shocking.”
Other suggested changes eliminating the Kansas Bioscience Authority, and scraping “a sales tax exemption that helps school, local governments and nonprofit hospitals manage construction costs.”
As the U.S. Senate is confirming judges “at a remarkably slow pace,” the federal court system had 44 vacancies on the district (trial court) level, and nine on the appellate level, the Wall Street Journal reports. There are currently 12 district nominees and two appellate nominees awaiting congressional approval.
The delays often have little to do with the nominees themselves. Instead, the federal bench hopefuls become caught in Washington’s notorious political gridlock. One candidate whose nomination has been pending since February, for instance, is backed by Republican Senators Orrin Hatch and Mike Lee, yet still cannot snag a confirmation. Democrats blame Republicans for dragging their feet over unrelated disagreements, but a GOP spokeswoman recently placed the blame on Democrats, who “rammed through 11 federal judges during the Lame Duck [session]. The article says it is possible, but not likely, that a vote could be taken today for four of the nominees.
Nominees are not the only ones pending due to these political games; the impressive backlog of pending cases has skyrocketed nearly 20% since 2004, with more than 330,000 awaiting a decision.
The Washington Post was cited in this article.
Controversy over strings attached to the Kansas judicial budget is attracting coverage across the state and nation. Under new legislation, the entire state court operating budget for 2016 and 2017 would be cut if the state Supreme Court rules recent administrative changes unconstitutional.
The Wall Street Journal says that legal experts believe “the legislation may be the first to peg the Third Branch’s budget to the outcome of an individual case, and public-interest groups described it as the most pointed challenge to judicial independence in recent memory.” An editorial in the Lawrence Journal-World describes the legislation as “blackmail” and a “power grab,” whereby “lawmakers are trying to alter the roles, responsibilities and fundamental balance of power among the state’s three branches of government.”
“If legislators and the governor think the Kansas Constitution is wrong,” the editorial reads, “they should tackle that issue head-on and seek to change it — not use budget blackmail to try to force the state’s independent judiciary to change its mind.” An op-ed in the Kansas City Star agrees, arguing that the bill is about control, not about decentralizing power as proponents assert.
Watch Gavel Grab as this story develops.
The Tuesday primaries for three supreme court seats in Pennsylvania halved the high court hopefuls. In November, Democrats David Wecht, Kevin Dougherty, and Christine Donohue will run against Republicans Anne Covey, Michael George, and Judith Olson, the Tribune Live reports.
The low key multimillion dollar election highlighted issues with Pennsylvania’s judicial selection system, Lehigh Valley Live editorialized. Judicial elections are notoriously low information races, and Pennsylvania is one of only six states that elect all judges, and the paper calls for this to change.Judicial elections turn judges into politicians, the editorial explains, and that will continue to be the case until legislators decide to implement merit selection instead.
The absence of several Wisconsin justices from a ceremony on Monday is “another sign of how politically fractured the state’s high court has become,” the Journal Times editorializes. Justices Shirley Abrahamson, Ann Walsh Bradley and Patrick Crooks did not issue any explanation for their absence from the swearing in of recent law school graduates, but papers around the state interpreted it as a boycott over a recent change in chief justice selection.
The LA Times took a stand for Orange County Superior Court Judge M. Marc Kelly, who is facing a recall election after sentencing a child molester to 10 years in prison. The editorial contends that the judge has a judicious record, and the decision was his to make on the merits of the case.
Kelly says “he believed the minimum 25-year sentence required under Jessica’s Law, adopted by voters in 2006, would be unconstitutional in this case,” so he issued a lesser sentence. Public outrage followed, so now he may lose his job for acting within his authority, the editorial asserts.
Tension is escalating between legislators and the judiciary in Kansas, where the legislature is prepared to tie funding of the state judiciary to a controversial measure that changed the way the state court system is administrated. Last year, the state Supreme Court was stripped of a number of management and budgetary authorities over lower state courts, under legislation that was widely seen as part of an ongoing series of hostile actions toward the state court system. The constitutionality of the legislation is currently being challenged in a lawsuit.
Now, the Lawrence Journal World reports that the legislature has approved a budget for the judicial system, with a condition: it would cut off all court funding if the Supreme Court rules that the reallocation of authority within the court system is indeed unconstitutional. Opponents say the tactic is an overt power grab, with legislators striving to influence the Supreme Court, and question the constitutionality of one branch of government effectively shutting down another branch by de-funding it. Supporters say it is appropriate for the courts’ budget to be linked to its policies.
The bill is now before both chambers, and will go to a simple vote with no opportunity for amendments.