Gavel Grab

Legislation for public financing of state Supreme Court elections in West Virginia could get hung up on a side issue–involving court fees proposed to help foot the election bill.

The House-passed bill must be cleared by the Senate Finance Committee before it goes to the full Senate, and Finance Committee chairman Walt Helmick has criticized the fees. He questioned whether his panel would consider the legislation for a pilot program to publicly finance two state Supreme Court elections in 2012, according to an Associated Press article.

Gov. Joe Manchin named an independent commission on judicial reform that ultimately recommended the pilot program. Manchin has met with Helmick, according to Matt Turner, a spokesman for Manchin.

“He certainly understands Sen. Helmick’s concerns about this,” Turner said. “But the governor also hopes that the senator understands how the public in West Virginia feel about the fairness of the process, and the influence of special interests.”

Earlier this week, the Justice at Stake Campaign and the Committee for Economic Development released a poll showing most West Virginia voters support public financing of state Supreme Court elections. You can read more about the poll, and the West Virginia legislation, in Gavel Grab.  The legislature is scheduled to end its session Saturday.

The Supreme Court’s Citizens United decision is one of two major factors behind the U.S. Chamber of Commerce’s increasing success at fundraising, according to an intriguing Los Angeles Times article.

The headline reports, “U.S. Chamber of Commerce grows into a political force.” But it’s the sub-headline that is a grabber: “A swelling tide of money could put the business group in a better position to sway elections.”

While the article provides a valuable picture of the Chamber’s growing grassroots network, called Friends of the U.S. Chamber, it also discloses that the Supreme Court’s blockbuster campaign finance decision in January is making an impact.

Citizens United not only lifted restrictions on corporations spending treasury dollars to help elect or defeat candidates, but it also “made many business executives feel more comfortable about using corporate money for political purposes,” the article says.

The newspaper also tells how trade associations make an appealing vehicle for corporate political spending because they provide avenues to dodge disclosure requirements:

“The chamber has developed that into something of a specialty: Under a system pioneered by [chamber President Tom] Donohue, corporations have contributed money to the chamber, which then produced issue ads targeting individual candidates without revealing the names of the businesses underwriting the ads.”

In another publication, U.S. News & World Report, a commentary by Ciara Torres-Spelliscy urges adoption in the U.S. of a law a British one requiring companies to seek shareholders’ authorization for corporate political expenditures.

In the aftermath of Citizens United, “Americans need these same protections afforded to British shareholders,” writes Torres-Spelliscy. She is counsel at the Brennan Center for Justice, a partner group of Justice at Stake. You can learn more about Citizens United from Gavel Grab.

A rare headline can capture a firestorm in fewer than 10 words. That has happened at the New York Times, with this powerful headline about an offensive that threatens constitutional rights: “Are You or Have You Ever Been a Lawyer?”

Some conservative critics including Liz Cheney, daughter of former Vice President Dick Cheney, are attacking lawyers working at the Justice Department who in private practice had represented or advocated for detainees held at the Guantanamo Bay military prison.

This debate has heated up quickly from a simmer to a full boil, and the Times editorial delivers a forceful response, replete with allusions to the McCarthy era and a defense of lawyers doing their duty in a democracy:

“It is not nearly enough to say that these lawyers did nothing wrong. In fact, they upheld the highest standards of their profession and advanced the cause of democratic justice. The Justice Department is right to stand up to this ugly bullying.”

When Liz Cheney mentioned lawyers who “voluntarily represented terrorists,” she included in the latter category Osama bin Laden’s driver, Salim Ahmed Hamdan. She neglected to mention, Read more

A Symposium on Caperton v. Massey, the landmark Supreme Court decision about campaign spending and judicial recusal, is in print from Syracuse Law Review.

Among Gavel Grab’s missions is to circulate resources on protecting fair and impartial courts. To that end, you can find two of the Symposium articles free online from the Social Science Research Network. They are James Sample’s   “Caperton: Correct Today, Compelling Tomorrow” and Ronald D. Rotunda’s “Judicial Disqualification in the Aftermath of Caperton v. A.T. Massey Coal Co.”

Gavel Grab will try to provide links if the other papers become available for free. The authors include Dahlia Lithwick, Steven Lubet, Bruce A. Green, Elizabeth B. Wydra, and Andrew L. Frey and Jeffery A. Berger. By clicking here you can see the table of contents. To read about Caperton, visit Gavel Grab or the Justice at Stake resource page on the decision.

Retired Justice Sandra Day O’Connor, continuing a drive to end competitive elections for state judges, carried her message to North Carolina this week.

Justice O’Connor told students at Elon University School of Law that although North Carolina offers public financing for some judicial elections, that doesn’t go far enough, the Greensboro News and Record reported in an editorial.

“I know you have some public funding of elections, and it’s nonpartisan, but that doesn’t do enough,” she said. “I hope that someday you’ll think about something else in North Carolina.”

Justice O’Connor is a champion of the appointment system known as merit selection. The editorial said she ought to return and make her pitch to state legislative leaders. “The biggest problem with judicial elections here, as elsewhere, is that few voters know enough about the courts or candidates to make reasoned, informed decisions,” it said. “Elections leave to chance decisions that are too important to get wrong.”

You can learn about North Carolina’s public financing system from Justice at Stake’s issues page on the topic, and about appointment and retention systems from a separate issues page.

JUSTICE AT STAKE

Justice At Stake: Justice at Stake Cites ‘Big Money’ Threat in Md.
Court Elections
Press Release – 3/9/2010

West Virginia Record: W.Va. voters want candidates to use taxpayer
money, poll shows
John O’Brien – 3/9/2010

WEST VIRGINIA PUBLIC FINANCING

Watchdog.org: Senate Judiciary Passes Supreme Court Public Financing Pilot Program
Steven Allen Adams – 3/9/2010

PhillyBurbs.com/AP: Proposed fees may doom W.Va. election funding bill
Lawrence Messina – 3/9/2010

NATIONAL SECURITY/COURTS

NY Times: Experts Urge Keeping Two Options for Terror Trials
CHARLIE SAVAGE and SCOTT SHANE – 3/9/2010

Wall Street Journal: Decision on 9/11 Trial Could Undercut Holder
Evan Perez – 3/10/2010

National Review: ‘Acceptable’ Risk
Bill Burck and Dana Perino – 3/10/2010

Cato @ Liberty: The Case against Domestic Military Detention
David Rittgers – 3/9/2010

Washington Independent: Graham Moves Forward With Indefinite Detention Proposal
Spencer Ackerman – 3/9/2010

The Hill/Blog Briefing Room:
Sen. Graham: Give released Guantanamo Bay detainees to Homeland Security
Eric Zimmermann – 03/09/2010

Wall Street Journal: Why You Shouldn’t Judge A Lawyer by His Clients (subscription)
Michael B, Mukasey – 3/10/2010

Chicago Tribune: Gitmo defense?
Editorial – 3/9/2010

Huffington Post: Liz Cheney Visits the Sins of the Client on the Lawyer
Judge H. Lee Sarokin – 3/9/2010

Truthout: “Values” of a Smear
Eugene Robinson

CITIZENS UNITED/CAMPAIGN FINANCE

LA Times: U.S. Chamber of Commerce grows into a political force
Tom Hamburger – 3/8/2010

Read more

As Maryland legislators considered whether to end contested elections for trial court judges, the Justice at Stake Campaign cautioned on Tuesday that special-interest spending undermines public trust in our elected courts.

“The new politics of judicial elections has convinced many Americans that justice is for sale,” Bert Brandenburg, JAS executive director, testified to the state Senate Judiciary Committee at a hearing.

“Maryland’s circuit courts may not face this problem at this moment,” he added. “But if special interests decide to descend on circuit court contest, big money surely will follow.”

Initially, Maryland judges are appointed to the bench. A bill backed by Maryland Attorney General Douglas Gansler would replace subsequent re-election contests for circuit judges with up-or-down retention elections. Retired Justice Sandra Day O’Connor recently testified in support of the proposed constitutional amendment (see Gavel Grab).

Brandenburg said spending on state Supreme Court elections has risen sharply. State Supreme Court candidates raised $206.4 million nationally between 2000 and 2009, more than double the $83.3 million raised in the 1990s. Spending is less at the trial court level, according to JAS data, but spikes in lower-court fundraising have occurred in some areas.

You can read Brandenburg’s complete testimony by clicking here, and about appointment/retention systems from Justice at Stake’s issues page about them.

A new study sheds light on the great frequency with which campaign donors appear before Pennsylvania Supreme Court justices whose campaigns they backed, according to our friends at Pennsylvanians for Modern Courts.

The American Judicature Society did research in support of PMC’s efforts for judicial selection reform and reported that in 2008-2009, more than two-thirds of the civil cases decided by the state’s highest court included a litigant, lawyer or law firm who had donated to the campaign of a least one of the elected justices.

“The high price-tag of judicial elections should worry Pennsylvanians,” said PMC Executive Director Lynn A. Marks.  “But what is of even greater concern is the source of this money. Judicial candidates receive donations from individuals, lawyers, businesses, unions and other entities that may later appear before them in court.”

During the time of the study, six of the seven Pennsylvania justices had won their seats in contested elections. The seventh was appointed to fill an interim vacancy. (Picture of state Supreme Court is above.)

Research from the AJS study, which was summarized in a Judicature article, showed a major overlap between campaign contributors during the period and a list of those appearing before the court:

• In two-thirds of the cases, at least one of the litigants, lawyers or law firms gave money to the election campaign of at least one justice.
• In 46 percent–nearly half–of the cases, a single litigant, lawyer, or law firm gave to at least four of the six elected justices’ election campaigns. Read more

It appears  there no longer is a possibility of broadcast coverage for closing arguments in the California same-sex marriage trial.

A San Francisco newspaper had brought up that possibility last month, but a recent court-issued press release stated there will be no broadcast, according to On Top magazine. “Certain recent articles have reported incorrect information about possible broadcasting of closing arguments in Perry et. al. v. Schwarzenegger et. al.,” the magazine quoted the press release as saying.

At issue in the trial is a legal challenge to California’s ban on same-sex marriage. Witnesses have given testimony in the potentially historic case, but opposing sides have yet to deliver closing arguments. Background is available from Gavel Grab.