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
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.
In the wake of a Wisconsin Supreme Court ruling that some critics see as gutting the state’s campaign finance law (see Gavel Grab), a Madison.com editorial calls on the state legislature to pass legislation to shine a light on political “dark money.”
The editorial criticized the ruling of a “hyperpartisan and politicized majority” of the court, and then urged the legislature to adopt legislation like that passed by some other states to require that so-called dark money groups disclose their larger donors.
“Let’s call these ideas what they are: wholly partisan responses to a pair of rulings, on marriage and health care, that some politicians and interest groups simply do not like. That happens in our democracy, but the answer is not to change the rules to make justices accountable to political pressure. That puts us on a dangerous path indeed,” National Law Journal quoted JASC as saying. (The article, “Cruz Urges Restraints on Supreme Court’s ‘Lawlessness,'” is available through a Google search.)
Cruz advocated for a constitutional amendment to impose retention (yes-or-no) elections on Supreme Court justices, who now have life tenure under the Constitution. The candidate for the GOP presidential nomination accused the high court of “lawlessness” in what a Los Angeles Times report depicted as a bid to win primary support from Republican voters, who gave basement-level approval to the Supreme Court in a recent poll.
It is a “dangerous path” when partisans who disagree with Supreme Court rulings try to change the rules of the justices’ selection to make them accountable to political pressure, the Justice at Stake Campaign said on Wednesday. JASC issued the following statement after a Senate panel hearing, led by Sen. Ted Cruz, debated “Supreme Court Activism and Possible Solutions”:
“Today’s hearing featured an array of proposals for limiting the terms and authority of U.S. Supreme Court justices, most of them in direct contradiction of the founders’ intent to insulate justices from political pressure. From Sen. Cruz we get the singularly reckless idea to impose retention elections on justices. But with elections come campaigns, and campaigns cost money. Who would raise money for a Supreme Court justice’s campaign, and what would they want in return? And if you can stomach the notion of special interests paying big bucks to put a Supreme Court justice back on the bench (or take her off), try to imagine the spectacle of that justice on the campaign trail. What would her platform be?
“Some witnesses who testified today offered up other suggestions, including the notions of state or Congressional override for specific rulings or the imposition of term limits on Supreme Court justices. But let’s call these ideas what they are: wholly partisan responses to a pair of rulings, on marriage and healthcare, that some politicians and interest groups simply do not like. That happens in our democracy, but the answer is not to change the rules to make justices accountable to political pressure. That puts us on a dangerous path indeed.”
A New Yorker commentary by Lincoln Caplan takes a critical look at the Wisconsin Supreme Court’s recent ruling that quashed a campaign finance investigation involving Gov. Scott Walker, and it suggests the ruling may have national implications.
You can learn more from Gavel Grab about how the issue of judicial recusal was handled in the 4-2 ruling. Caplan wrote this about recusal: “The highly political nature of the election, or reëlection, of the court’s conservative justices, between 2007 and 2013, and the highly political nature of their rejection of the traditional recusal rule have for half a decade made the court vulnerable to charges that it has become a political body. With their decision to halt a major criminal investigation of the sitting governor, who is running for President, and to do so by gutting the state law regulating campaign finance, the conservatives have confirmed the weight of those charges.” Read more
It is time to “Abandon Judicial Elections,” urges a respected federal appellate judge, Alex Kozinski of the Ninth U.S. Circuit Court of Appeals.
Judge Kozinski offers his outspoken view in a lengthy article entitled “Criminal Law 2.0.” His opinions and recommendations about ways to improve the criminal justice system have been excerpted by law professor Eugene Volokh in a Washington Post blog.
The judge writes about cases he considers miscarriages of justice, including the prosecution in Mississippi of Glenn Ford, who was exonerated in 2014 after serving almost 30 years on death row for a crime he did not commit. The lead prosecutor in the case ultimately wrote an apology about his own handling of it. Ford died recently. Kozinski writes: “While many, perhaps, most judges resist the pressure and remain impartial, the fact that they may have to face the voters with the combined might of the prosecution and police groups aligned against them no doubt causes some judges to rule for the prosecution in cases where they would otherwise have ruled for the defense.” Read more