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).
The Wichita Eagle is the latest Kansas paper to publish an editorial taking the state legislature to task for a controversial measure that ties the judicial budget to the outcome of a specific court case.
The case questions the constitutionality of a 2014 law that “curbed the Kansas Supreme Court’s power” by giving district judges the authority to select their own chief judge, a power that previously fell under the purview of the Supreme Court. “The legislative decision to punish the courts in this and other ways is all about politics, and particularly recent Supreme Court decisions about school funding, the death penalty and other matters that have proved unpopular at the Statehouse,” the editorial asserts. “Lawmakers no doubt hope the intimidation factor will work to their benefit on other cases, too, including the ongoing school funding fight.”
Finally, the paper calls on Kansas citizens to take a stand. “Because judges aren’t free to scream bloody murder about this latest bill,” the editorial concludes, “other Kansans must speak up on behalf of adequately funded, independent courts.”
Another analysis of Williams-Yulee v. The Florida Bar was published this week, this time in Verdict. Vikram David Amar explains his major takeaways from the case, and what they mean for the future of free speech cases in the Supreme Court.
First, Amar asserts that “the speech clause juggernaut may be losing steam,” because the majority upheld a restriction of political speech in favor of another interest: that of “preserving public confidence in the integrity of the judiciary.” The Court has recently ruled in favor of the First Amendment over “other values that traditionally have enjoyed high esteem,” and Yulee signifies what could potentially be a significant shift in the Court’s rulings.
According to Amar’s analysis, the case also diverted from court tradition in another significant way: strict scrutiny was applied more liberally than usual. Under strict scrutiny, the government is required to “prove that the law in question is narrowly tailored to serve a compelling interest.” Justice Antonin Scalia addressed why the law may not uphold the stated interest – public confidence in the judiciary – in his dissent: judicial candidates are still permitted to know who the donors are and have contact with them. Amar asserts that the majority rejected this argument, straying from the traditional understanding of what a “narrowly tailored” law is.
Amar also suggested that precedent may not be as important to the Court as is usually assumed, and that Chief Justice John Roberts can bring different logic to the table than his predecessor, Chief Justice William Rehnquist.
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.