Gavel Grab

Archive for the 'Federal Courts' Category

Scholar’s Concern: When Politicians Browbeat Our Courts

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Sen. Ted Cruz, a Republican candidate for president, recently introduced a bill to bar federal courts from ruling on state marriage laws. In Huffington Post, a legal scholar calls the measure “bullying” and akin to declaring “war on the independent judiciary.”

Cruz introduced in April his Protect Marriage from the Courts Act of 2015. “Judges have taken an unprecedented activist role to strike down state marriage laws,” he said at the time.  But Law Professor Alex Glashausser of Washburn University in Topeka, Ks. writes at Huffington Post that Cruz’s approach is misguided, and like court defunding legislation recently signed into law in Kansas (see Gavel Grab), a kind of court bashing:

“This legislative attempt to restrain the judicial branch violates the separation-of-powers doctrine, and the invitation to state judges to ignore a Supreme Court decision makes a hash of the constitutional enshrinement of federal law as ‘the supreme Law of the Land.'”

“If the political branches wield necessities like jurisdiction and budgets as weapons for browbeating courts into submission, the damage to judicial independence will in turn erode the rule of law.”

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Opposing Sides Don’t Seek Recusal of Judge in Hastert Case

Both the prosecution and defense involved in former House Speaker Dennis Hastert’s criminal proceedings have given notice they do not object to U.S. District Judge Thomas Durkin continuing to preside over the case.

Judge Durkin had openly discussed issues that might lead a party to seek his recusal when he presided over Hastert’s arraignment earlier this week (see Gavel Grab). They included his donating, as a lawyer in private practice, $1,500 to Hastert congressional campaigns and his having worked in private practice with Hastert’s son. The judge said he was confident he could handle the case impartially.

According to Politico, Judge Durkin will continue to preside over the proceedings against Hastert.

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Judge in Hastert Case Vows Impartiality, Yet May Recuse

Judge Durkin

Judge Durkin

The federal district court judge conducting former House Speaker Dennis Hastert’s arraignment, who as a private lawyer had donated $1,500 to Hastert campaigns, openly addressed issues about fair and impartial courts on Tuesday.

Judge Thomas Durkin, according to Politico, “announced at the hearing that he was provisionally recusing himself due to several personal and family ties to Hastert, Hastert’s relatives and the Republican Party, as well as lawyers on both the defense and prosecution teams.” He also said that if both sides concurred, his recusal could be waived. The judge said he was confident he could be impartial.

The Washington Post reported on the proceeding in a somewhat different manner, saying Judge Durkin “acknowledged that the potential appearance of a conflict of interest created grounds for disqualification. Durkin gave Hastert and prosecutors until Thursday to review his disclosures and determine whether to waive his offer to step aside.”

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In-Depth Report: A U.S. Judge Struggles With Mandatory Minimums

With debate mounting in Washington over changing mandatory minimum sentencing laws, Senate Judiciary Chairman Charles Grassley of Iowa remains one of their strong defenders. But a federal judge seated in Iowa has variously described his own sentencing under the laws as “unjust and ineffective,” “gut-wrenching,” and leading to “prisons filled, families divided, communities devastated.”

The Washington Post has published a lengthy article featuring U.S. District Judge Mark Bennett of Sioux City and his struggle to carry out his judicial oath to administer justice when he strongly believes that hewing to the mandatory minimum sentencing laws often result in a miscarriage of justice instead.

“My hands are tied on your sentence,” the judge told one defendant. “I’m sorry. This isn’t up to me.” He has faced the scenario scores of times, according to the Post: “For more than two decades as a federal judge, Bennett had often viewed his job as less about presiding than abiding by dozens of mandatory minimum sentences established by Congress in the late 1980s for federal offenses.” Read more

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Editorial Urges Recusal by Judge Assigned to Hastert Case

A Chicago Daily Herald editorial urged U.S. District Judge Thomas Durkin to step aside from handling a criminal proceeding against former U.S. House Speaker Dennis Hastert. When Durkin was a private attorney, he donated $1,500 to Hastert’s congressional campaigns (see Gavel Grab).

“The connections between the two men don’t necessarily set the stage for bias in the handling of the court proceedings. And some legal experts are of the opinion the ties between Hastert and Durkin are not substantial enough to mandate the judge recuse himself,” the editorial said. 

“Still, in a case this sensitive, it would be best for the judge to  head off any appearance of his political and professional links to the defendant affecting the outcome.” Read more

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Judge Handling Hastert’s Case Has Given to His Campaigns

U.S. District Court Judge Thomas Durkin, assigned to handle a criminal proceeding against former House Speaker Dennis Hastert, donated at least a total of $1,500 to Hastert’s campaigns in the past, when the judge was a private attorney, according to Politico.

The article said the donations could raise questions about the judge’s impartiality, and it also noted that the judge’s brother belongs to the state Republican leadership in Illinois. Hastert is an Illinois Republican. An ethics expert quoted by Politico, Stephen Gillers of New York University, said the political donations were not likely to require the judge to recuse himself from the proceedings.

Judge Durkin is a former prosecutor. He was nominated for the bench by President Obama. The donations to Hastert’s congressional campaigns were made in 2002 and 2004.

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His Battery Charge Dismissed, Federal Judge Resigns Job

A federal judge from Alabama who was arrested on charges tied to domestic assault, and who later saw the charges dismissed after he completed a pretrial diversion program, has resigned his post.

Judge Mark Fuller has continued to be under investigation by a judicial panel. He sent notice of his resignation to President Obama on Friday, according to the New York Times, and it will take effect on Aug. 1. There were calls from some lawmakers and some commentators to resign.

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U.S. Judicial Ethics Watchdog is Proposed by Grassley

Sen. Grassley

Sen. Grassley

Sen. Charles Grassley of Iowa, chairman of the Senate Judiciary Committee, has recently introduced the Judicial Transparency and Ethics Enhancement Act, to establish an Office of Inspector General for the judicial branch.

At the Constitution Daily blog, longtime Supreme Court reporter Lyle Denniston reflected on the legislation and its goals and authority, and he asked:

“[W]here in the Constitution does Congress derive the power to create, within the judiciary, an independent office that has quite conspicuous power to regulate the behavior of judges, and, especially, of Supreme Court Justices? Can such a power be extrapolated from the explicit powers that Article II gives to Congress? Is it related to the funding power? Or to the power to legislate, within limits, how the courts are to function? Or does it come under that open-ended power that Congress always claims and sometimes abuses, the power of ‘oversight’?”

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Hold on Obama Immigration Action Stands, For Now

A three-judge panel of the Fifth U.S. Circuit Court of Appeals has declined to lift a lower court-ordered hold on President Obama’s executive action to protect as many as five million immigrants in the United States from deportation.

U.S. District Judge Andrew S. Hanen of Texas had entered the injunction in February, and he was widely denounced for it in some quarters (see Gavel Grab). The Obama administration is appealing his order and asked that in the meantime, the program be permitted to proceed. Oral arguments on the merits of the litigation are tentatively planned for July, according to the Associated Press.

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Right to Wed for Same-Sex Couples in Alabama, Judge Says

U.S. District Judge Callie Granade of Alabama has ruled again that same-sex couples have a right to wed in the state, and she held off implementation of her ruling until the U.S. Supreme Court takes a stand on related cases before it.

Alabama Supreme Court Justice Roy Moore has contended that Judge Granade had no right to tell state probate judges what they should do regarding marriage equality. These probate judges belong to a parallel state court system, he has argued, according to the Associated Press.

Judge Granade said in her ruling, “It is true that if this Court grants the preliminary injunction, the probate judges will be faced with complying with either Alabama’s marriage laws that prohibit same-sex marriage as they have been directed by the Alabama Supreme Court, or with complying with the United States Constitution as directed by this Court. However, the choice should be simple. Under the Supremacy Clause, the laws of the United States are the ‘supreme Law of the Land.’”

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