Gavel Grab

Prosser Denies Recusal Was Warranted

Seal_of_the_Supreme_Court_of_Wisconsin.svgWisconsin Supreme Court Justice David Prosser “issued a 15-page opinion explaining why he believed he could participate” in the recent campaign finance decision involving Gov. Scott Walker’s anti-recall campaign, according to the Milwaukee Journal-Sentinel.  Prosser joined the majority of the court in the “John Doe” case, when it ruled that no campaign finance laws were violated by the anti-recall campaign and several conservative groups that were alleged to have coordinated their activities.  The same groups spent significant sums to benefit Prosser’s supreme court campaign and the campaigns of other justices in the majority, and a special prosecutor asked Prosser and another justice to recuse themselves from the case.  Neither did so. (See Gavel Grab.)

“Prosser wrote that outside spending to help him was ‘very valuable to my campaign’ but did not rise to a level that would require him to step down from the challenge to the investigation of those groups,” according to the Journal-Sentinel.

Meanwhile, critics of the Wisconsin high court’s ruling are urging prosecutors to appeal to the U.S. Supreme Court, claiming that the justices who benefited from outside spending, but did not recuse themselves, may have had an unconstitutional conflict of interest.   (See Gavel Grab).

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OK Court Reaffirms Ruling: Ten Commandments Marker Must Go

cut4qtcThe Oklahoma Supreme Court has reaffirmed its earlier ruling that a granite Ten Commandments monument on the state Capitol grounds must be removed, rejecting a request by the state for the court to reconsider its decision.  This sets the stage for the marker to come down within a few weeks, according to the Oklahoman.

Oklahoma Attorney General Scott Pruitt had requested a rehearing, maintaining that the court “got it wrong.” But justices ruled 7-2 to deny the rehearing request.  According to the Oklahoman, the court determined that “The monument violates a section of the Oklahoma Constitution prohibiting state property from being used to further religions.”

The court’s original decision on June 30 sparked impeachment threats against the seven justices who ruled that the monument must come down (see Gavel Grab).  “This latest threat by Oklahoma legislators to bully the state’s Supreme Court is deeply disturbing,” Justice at Stake Deputy Executive Director Liz Seaton said at the time, in a statement published in the Tulsa World.  “When politicians threaten to remove judges from office for a single ruling, it strikes at the heart of the checks and balances system embedded in our democracy.”





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Fox News Analyst: Politicians’ “Backroom Plots” Targeting Courts

justice-scalesFox News commentator Juan Williams takes aim at political gamesmanship aimed at courts in a blistering column for The Hill, headlined “The GOP’s judicial logjam.”  And despite the headline, he has blame to dish out on all sides.

Noting that the Republican-led Senate’s current rate of confirmation for federal judges puts it on pace to reach the lowest number of such confirmations since 1969,  Williams calls it “just one of the many political backroom plots being played out in the Senate over control of the nation’s courts.”  He writes that the GOP strategy has also emerged in the presidential race, as candidates take aim at a Supreme Court that is seeing dramatically lower approval ratings among Republican voters.   “Between the Senate Republicans’ success at clogging the judicial appointment process and the burst of harsh rhetoric, there is a growing risk of a serious erosion of the public trust in the nation’s judicial system,” Williams adds.

Meanwhile, he remarks that “Obama also is playing the dangerous game”: neglecting thus far to nominate anyone to fill 47 of 63 vacant seats on the federal bench.

“Can the Senate expect better results with a President Hillary Clinton or President Bernie Sanders? How about President Jeb Bush or President Donald Trump? Most likely it will be more of the same,” Williams concludes.

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Florida Representative: Subpoenas for Justices?

In the wake of a Florida Supreme Court ruling overturning new districts drawn by the state legislature, Republican Rep. Mike Hill has called for a meeting with justices to clarify the ruling. According to the Orlando Sentinel, if the justices decline the invitation, Hill suggests distributing subpoenas.

The 5-2 ruling said the legislature violated the Fair Districts amendment “by passing new congressional and state Senate districts supported by GOP consultants that favor the Republican Party,” the article explains, saying that the maps drawn were submitted by GOP consultants. Hill, on the other hand, contends that the maps supported by the court are those favored by Democrats.

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Michigan Supreme Court Throws Out Mandatory Minimums

Michigan_quarter,_reverse_side,_2004The Michigan Supreme Court restructured criminal sentencing this week in a landmark 5-2 ruling, Michigan Live reports.

The opinion, written by Justice Bridget Mary McCormack, says that “mandatory minimum sentencing violates the Sixth Amendment” when it increases sentencing beyond that contained in a jury verdict. The article explains that the case upheld a lower court sentence, but ruled that a recent U.S. Supreme Court Decision “rendered parts of Michigan’s sentencing guidelines unconstitutional” because they infringe on the right to a trial by jury.

Read more

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Friday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • Politics PA reports that the largest teacher’s union in the state endorsed Judge Kevin Dougherty for Supreme Court. The election for three open seats on the court will take place in November.
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Confrontation Erupts Over Judicial Nominations

Confirmation Hearings For Supreme Court Nominee Sonia Sotomayor ContinueSen. Chuck Grassley (R-Iowa) and Sen. Chuck Schumer (D-N.Y.) are sparring over the pace of judicial confirmations, reported Politico. The confrontation unfolded on Thursday after Grassley blocked the confirmation of three judicial nominees that, according to The Hill, Schumer wanted confirmed.

The New York Democrat complained about the judicial vacancy rate in the U.S. that is at 10%, and the 28 districts that are in a state of ” judicial emergency,” mentions Politico. He also called it a “disgrace” that the new Republican-led Senate has only confirmed five federal judges so far, comparing that pace to the confirmation rate of the Democratic-led Senate under President George W. Bush, which at the same point in President Bush’s second term had confirmed 25 judges.

Grassley shot back that the statistics are misleading, arguing that “we’d be roughly at the same pace we were for judicial confirmations this year compared to 2007,″ if 11 judicial confirmations that took place during last year’s lame duck session had been scheduled for this year instead.

GOP leaders will not hold scheduled votes on judicial nominees until at least September, he said.

Meanwhile, President Obama has nominated four Pennsylvania judges to fill federal bench vacancies, reported Legal Intelligencer.


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Opinion: Politicized Courts

In an editorial for the Greensboro News and Record’s news website, Doug Clark laments the politicization of courts at the federal and state levels. “The courts have been in the political cross hairs for a long time,” he writes, adding that current political attacks and manipulation aimed at courts are doing little to improve their standing in public opinion.

Noting Sen. Ted Cruz’s accusation of “liberal judicial activism” following the U.S. Supreme Court’s ruling on marriage equality, Clark writes that “Opinions about the courts often bounce around, depending on the latest big decision. ” He maintains that Cruz’s idea is unlikely to gain traction, since  the founders intended courts to be apolitical.

Yet despite this intention of the founders, Clark says, North Carolina’s legislature successfully adopted a change in its court structure that was tagged as political at the outset. The state adopted retention elections for its highest court, even though “Democrats in the legislature voted against this change, smelling a political rat.”  Clark goes on to observe that the switch appears most likely to benefit an incumbent Republican justice, whose continued presence on the bench would  maintain Republicans’ 4-3 majority.  Yet he also expresses hope that retention elections may prove less politicized than the contested elections currently in place for justices’ initial selection to the bench.

“Justices should not be accountable only to those willing to spend money to elect or retain them,” Clark writes, although in the current political climate, cynicism about courts appears to be widespread.



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Concern Over the Future of Tennessee’s High Court Grows

Tennessee Democrats responded Wednesday to Lt. Gov. Ron Ramsey’s stated partisan goals for the state Supreme Court, The Chattanoogan reports. House Democratic Caucus Chairman Mike Stewart said that governors have followed a “long tradition of merit-based selection that has for decades made Tennessee Courts a model for non-partisan, fair-minded decision making.” He further explained:

“The Courts are not intended to be just another partisan arm of government.  Our judges have an independent duty to uphold the laws passed by the peoples’ representatives – a duty that transcends the judges’ personal political beliefs.  We have seen in Washington and in other states that infusing the judicial selection process with politics has led to charges of bias and in some cases even corruption – charges that have threatened to undermine the integrity of the judiciary.  We don’t need that sort of thing here.”

Stewart ended with a call to “Tennesseans of both parties” to demand a continued apolitical selection process. Gov. Haslam will have the opportunity to nominate a third justice to the state high court after Justice Gary Wade retires in September. See the Knoxville News Sentinel to learn more about Wade, and watch Gavel Grab for developments on the selection process.

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Thursday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • For the first time since 1993, an independent candidate for a PA Supreme Court vacancy “might make the election ballot,” according to Politics PA.  He has now gathered more supporters than what he actually needs to make it to the Nov. 3 ballot, reported to the same source.
  • WI Supreme Court candidate JoAnne F. Kloppenburg states during her campaign “how important it is that we keep our courts independent and non-partial,” reported Pierce Country Herald.  “Partisan and special interest groups are intruding and trying to influence judicial elections,” she stated.


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Watchdog Group Accuses Moore of Judicial Ethics Violations

Chief Justice Roy Moore

AL Chief Justice Roy Moore

The Southern Poverty Law Center accused  Alabama Chief Justice Roy Moore on Wednesday of violating judicial ethics through his public criticisms on the Obergefell decision, reported Associated Press.

Earlier this year, the SPLC had filed a complaint against Moore after he advised judges in Alabama not to grant marriage licenses to same sex couples, mentioned the same source. Moore argued probate judges were “part of an independent judicial branch” and “not bound by a federal judge’s order overturning Alabama’s  ban on gay marriage.”

Now, the SPLC has filed a supplement to its complaint, contending that Moore has committed ethics violations by “improperly commenting on pending cases” and “saying that he couldn’t accept the gay marriage ruling as binding precedent and would recuse himself in future cases.”

The complaint states that Moore’s “open and blatant disregard for judicial ethics” makes him “unfit to be judge.”

“If Chief Justice Moore wants to make political speeches or be an activist in opposition to same-sex marriage, he is free to do so, but he cannot simultaneously hold his current position on the Alabama Supreme Court,” SPLC President Richard Cohen wrote in the complaint.

Moore did not comment on the filing.



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Op-Ed: WI Prosecutors Should Appeal “John Doe” Case to SCOTUS

In a strongly-worded column for Newsweek, Billy Corriher and Maya Efrati of Legal Progress urge prosecutors in Wisconsin’s recent “John Doe” campaign finance case to appeal the ruling of the Wisconsin_flag_mapstate Supreme Court in that case.

The ruling in the “John Doe” case  effectively halted further investigation of alleged collusion between Gov. Scott Walker’s anti-recall campaign and conservative groups, when the court decided that  there were no violations of campaign finance laws (see Gavel Grab). But Corriher and Efrati argue that because several justices on the court benefited from millions of dollars in campaign spending by those same conservative groups, “Prosecutors have a strong argument that the Wisconsin justices had an unconstitutional conflict of interest.” They argue that the justices who benefited from the spending should have recused themselves, and that since they did not, there are grounds for appeal to the U.S. Supreme Court.

The writers also suggest that the U.S. Supreme Court’s ruling in Caperton v. AT Massey Coal Co. Inc. should serve as a meaningful precedent.  “Caperton has not yet been applied by any lower court to require recusal,” they note. “But if the decision means anything, it must apply to the Wisconsin decision.”


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