Grassley Outlines Plans If Judge Merrick Garland is Nominated Again

grassleyGRASSLEY DETAILS PLANS: “Sen. Charles Grassley said Thursday afternoon that he would not hold confirmation hearings for Merrick Garland during the lame duck session, even if Hillary Clinton wins the presidency,” The (Knoxville, Ia.) Journal Express reported. “However, should Clinton win and renominate Garland, and if the Republicans hold on to the Senate majority, he would begin the confirmation process.”

That news about Senate Judiciary Committee Chairman Grassley seemed to seal the likelihood of no hearings on Judge Garland’s nomination to the Supreme Court in the upcoming lame duck  session. What may unfold next year, if Clinton is president and the Senate is controlled by Republicans, remained the topic of speculation and controversy despite the Journal Express report.

“That Supreme Court Stonewall May Not Crumble Anytime Soon,” a New York Times headline declared. And a headline in The Hill said, “Heritage calling for Supreme Court blockade if Clinton wins.”  Yet Politico reported about an Arkansas Republican, “Sen. Cotton won’t join indefinite Supreme Court blockade.” A Dallas Morning News article also reflected divergent GOP stances, saying, “Cruz, other senators suggest blocking Clinton Supreme Court nominees, while Cornyn would consider them.” And The Associated Press reported about Republican Sen. Richard Burr (see Gavel Grab), “North Carolina Sen. Richard Burr is walking back from his promise to block any nominees Democrat Hillary Clinton would make to the U.S. Supreme Court if she’s elected president.”

On the opinion front, Steve Chapman wrote in The Chicago Tribune about Franklin D. Roosevelt’s efforts to increase the court’s size in 1937 and said, “There is nothing sacred about the number nine. But changing the size of the court in an attempt to influence how it decides future cases would be a cynical assault on the judiciary and republican government — as it was seen to be in 1937.”

STATE COURT ELECTIONS: A National Law Journal article (available by Google search) said state judicial elections on Tuesday also are grabbing media attention, and for good reason: “Tuesday’s judicial elections promise to surpass past spending on television ads, with a record $14 million spent by outside groups so far on races for state Supreme Court seats.” The Brennan Center for Justice had the latest statistics here.

A ‘Starving’ Federal Judiciary is Riddled With Vacancies

empty-court_shutterstock_bikeriderlondonA ‘STARVING JUDICIARY’: Thanks to Senate obstruction of President Obama’s judicial nominees,  “he will likely be the first executive in nearly two decades to leave office with federal district courts less staffed than when he was sworn in,” The District Sentinel reported.

Right now there are 75 district court vacancies, up from 41 when Obama moved into the White House, or an 83 percent increase. The District Sentinel headlined its article, “Congressional Report Details A Starving Judiciary.” You can see a Congressional Research Service report on district court vacancies by clicking here and on appeals court vacancies by clicking here; they were released by the Federation of American Scientists.

DIMMING PROSPECTS FOR GARLAND CONFIRMATION?: At Bloomberg, law professor Noah Feldman of Harvard suggested that if Hillary Clinton defeats Donald Trump in November, chances for the Senate confirming Supreme Court nominee Merrick Garland in a lame-duck session don’t look great. Feldman drew a distinction between GOP ideology and partisanship. “The upshot is that Garland’s chances for confirmation now seem smaller than they did a few months ago. … Republicans might have to sacrifice a more liberal court to protect their individual political interests. But for elected politicians, that’s an easy trade to make,” he wrote.

ALLEGATIONS OF BANKROLLING A TOP JUDGE: “A federal racketeering lawsuit involving State Farm and allegations of funneling money into the election of a state judge has been granted class-action status, potentially benefiting more than 4 million policyholders,” The Chicago Tribune reported.

The allegations involve an Illinois Supreme Court election won by Lloyd Karmeier in 2004 and his voting later with a court majority to overturn a $1 billion award against the company. Karmeier, who has just been elected the court’s next chief justice, is not named as a defendant in the RICO lawsuit, Bloomberg said. There are years of twists and turns in the litigating that led to this point, and questions raised about “dark money” in judicial elections; you can learn more from earlier Gavel Grab posts.

Some Judicial Races ‘Hidden’ on Primary Ballot Now, Judge Says

Under a new process for choosing West Virginia judges in a nonpartisan election, the candidates’ names will appear so far down the primary ballot in some jurisdictions that they will seem virtually hidden, said one judge who spoke publicly about the change.

“Those elections are hidden at the back of the ballot and, in terms of how we put the ballots together, that’s a real problem in terms of judicial elections, especially on the Republican side because of the big list,” Raleigh Circuit Judge John Hutchison said, according to Because the names of 250 potential delegates to the Republican National Convention are listed first, a voter using a voting machine in Raleigh County must first punch “next page” 17 times to get to the nonpartisan election, he said. Hutchison said a voter education effort is needed. (more…)

Idaho Court Primary Features Four Candidates for One Seat

Idaho_quarter,_reverse_side,_2007In a primary scheduled for May 17, four candidates are running for a single seat on the Idaho Supreme Court in a nonpartisan race. Although the justices “have a heavy hand in reshaping the state for years,” according to The Associated Press, turnout is not expected to be high.

The candidates are Clive Strong, a deputy attorney general; Curt McKenzie, a Republican state senator; Robyn Brody, an attorney; and Idaho Court of Appeals Judge Sergio Gutierrez. The AP notes that “Idaho is currently just one of two states with no supreme court justices who are female or people of color.”

The Spokesman-Review has this article quoting each of the candidates regarding his or her views about diversity on the court, and this article quoting a justice who is stepping down from the bench. It is headlined, “Justice Jones: ‘Judicial elections are different kinds of animals.’”

Maryland Circuit Court Elections a ‘Muddled System,’ Editorial Says

Maryland’s process for electing Circuit Court judges, which has repeatedly been targeted for reform, is “a muddled system whose pretense at nonpartisanship fools no one,” a editorial said.

As Exhibit A for its argument, the editorial said the Republican Central Committee invited to a local primary election forum “only GOP candidates for the four Anne Arundel County Circuit Court judgeships at stake in this year’s election,” although the elections were nonpartisan, with the names of both Democrats and Republicans appearing on the same ballots. (more…)

Voters Will Have to Protect KS Court From ‘Unfair Attacks’: Editorial

voting-boothThere are increasing prospects for a highly politicized retention (up-or-down) election of justices on the Kansas Supreme Court this fall, a Kansas City Star editorial warns. It adds, “Voters will have to protect the Kansas Supreme Court from unfair attacks on its independence.”

While the court has sparked the ire of numerous legislators and Gov. Sam Brownback with its orders for greater spending on public education, it actually “is acting impartially and carefully on the complicated school funding issue — as Kansans expect and deserve,” the editorial says.

Four of the court’s seven justices, out of five who will be up for retention, are expected to be targeted for removal by critics who are unhappy with their rulings. Supporters of the justices are beginning to speak out. The editorial also notes that legislators are working to advance a measure that would expand the legal grounds for impeaching Kansas justices, a bill that Justice at Stake has called unconstitutional (see Gavel Grab).

Will W.Va. Judicial Election Change Have Unintended Consequences?

With a new process under way this year for choosing West Virginia Supreme Court justices, the election on May 10 could have unintended consequences for some of those who sought reform, commentator Hoppy Kercheval writes at West Virginia Metro News.

The election will be non-partisan under a new law adopted by the legislature. Among those who pushed for change, Kercheval says, were some leading business organizations and the GOP. Yet the process might result in the election of former Attorney General Darrell McGraw, also a former justice, who has had a long political career and whose name may be better known than his four rivals, according to Kercheval. And here is why his election might displease some of the reformers: (more…)

JAS: Three Candidates for West Virginia Court Buy TV Ad Time

Three  candidates in a five-way race for the West Virginia Supreme Court have purchased television ad contracts worth a combined total of at least $274,140, Justice at Stake and the Brennan Center for Justice said on Thursday. The election will be held May 10.

TV ad contracts purchased by the campaign of former state legislator William “Bill” Wooton total at least $183,790; by incumbent Justice Brent Benjamin, at least $48,710; and by attorney Beth Walker, at least $41,640. No ad contracts have yet been recorded for two other candidates, attorney Wayne King and former state Attorney General Darrell McGraw, Jr.

“We’re seeing encouraging signs in West Virginia’s Supreme Court race so far,” said JAS Executive Director Susan Liss. “TV ad spending is not excessively high, candidates are using advertising to talk about their qualifications while avoiding attack ads and smear campaigns, and no outside spenders have jumped into the mix. Compared with what we’ve seen in judicial elections in other states so far this year and even in West Virginia’s own history, this is a significant improvement.” (more…)

Retiring FL Jurist Says Appointing Judges Better Than Elections

bildeIn Florida, a retiring Volusia Circuit Court judge publicly endorsed an appointive system for choosing judges, using a judicial nominating commission, as superior to elections. To seek election as a judge all you need is a filing fee, five years’ experience as a lawyer and “a pulse,” he said.

Circuit Judge Joseph G. Will said the following about the nominating commission-aided process, according to The Daytona Beach News-Journal, in a radio interview:

“You have the assurance of knowing when that is done that local people, not all lawyers, not all people from the community, but a nominating commission made up of people who are level headed and appointed by one governor or another as they proceed along will make that decision to make sure that the person who’s being recommended is competent and qualified for the position. They still have to have a pulse and practice for five years.”


WI Editorial: Judicial Elections are ‘Putting Justice Up for Sale’

gavel-and-cash.125192919_stdCostly judicial elections in Wisconsin with big outside spending are fueling calls for reform. A Wisconsin Gazette editorial declares that it’s way past time to switch from judicial elections to a merit selection system for choosing qualified judges, and the editorial also criticizes the U.S. Supreme Court’s Citizens United ruling:

“Until Citizens United is thrown on the trash heap of history, we must stop electing justices. Essentially what we’re doing is putting justice up for sale.”

In the state Supreme Court election held earlier this month (see Gavel Grab), candidates and outside groups spent at least $4.3 million in the race.