Opposition to Gorsuch’s Nomination Continues

DEMOCRATIC OPPOSITION TO GORSUCH: Concerns are mounting that Neil Gorsuch, President Trump’s Supreme Court nominee, will not be willing or able to function independently from the president. “Given the administration’s disdain for the judiciary, any nominee to the Supreme Court, particularly by this president, must be able to demonstrate independence from this president,” wrote Senate Minority Leader Chuck Schumer in an opinion piece at The New York Times. On Sunday, Trump’s administration made it clear that they expect the judicial  branch to be loyal to Trump when Stephen Miller, a senior policy adviser to Trump, expressed his belief that “a district judge in Seattle cannot force the President of the United States to change the laws and our Constitution because of their own personal views” and that “the President’s power…will not be questioned,” reported People for the American Way.

More than 200 groups are actively working to inform the public about the danger of Gorsuch, reported Bloomberg Politics. Some conservatives are comparing the progressive opposition to the Gorsuch nomination to the controversy over Robert Bork in 1987, using the comparison to argue that Democrats are being too harsh. But an article in The Daily Beast argues that “Rather than remembering the Bork appointment as something to avoid, this is a time to look back at Senator Kennedy’s campaign as a model for how to handle Gorsuch in the coming weeks.”

TRUMP ADMINISTRATION WITHDRAWS OBJECTION TO INJUNCTION AGAINST TRANSGENDER STUDENTS: The Trump administration submitted a legal brief “withdrawing the government’s objections to an injunction that had blocked guidance requiring that transgender students be allowed to use restrooms that match their gender identity,” reported The Chicago Tribune.

The Obama administration had appealed the injunction.  But the Justice Department, led by Attorney General Jeff Sessions, decided to no longer challenge it in court – leaving in place a ruling that effectively thwarts the rights of transgender students.

The decision “signaled a significant change in the government’s approach to transgender issues under President Trump” according to The New York Times.

Appeals Court Won’t Reinstate Travel Ban

APPEALS COURT RULES NOT TO REINSTATE TRAVEL BAN: A panel of judges on the U.S. Court of Appeals for the 9th Circuit unanimously agreed to uphold the decision that blocked Trump’s executive order on travel, The Washington Post reported. After the decision, Trump tweeted “SEE YOU IN COURT,” leading many to believe the case will reach the Supreme Court.

Nan Aron, president of our sister organization Alliance for Justice, released a statement on the decision, writing, “[t]he action by the Ninth Circuit shows us once again just how important an independent judiciary is, as a check on overreach or misguided actions of the other branches. It also highlights the importance of all the federal courts, including the ones at the circuit and district levels. Of course, all eyes are now on the Supreme Court, not just because this case could well be headed there – but also because we have a nominee about to be considered for a seat on the Court. And it’s more important than ever that the nominee, Neil Gorsuch, answer all questions about whether he can be an independent check on an executive whose disregard for the law has put his administration in crisis-a-day mode.” A portion of the statement appeared in an article at The Washington Examiner.

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).

Judicial Independence Issue Raised in Supreme Court Arguments

When the Supreme Court heard arguments on Wednesday in a case involving foreign terrorism and Americans’ damage claims, Chief Justice John Roberts cautioned that questions of judicial independence from congressional meddling were at stake.

The case involves efforts by victims and their families who sued Iran to recover large sums from terrorist actions backed by Iran. During the arguments, according to The Washington Post, Congress effectively “was on trial, for allegedly overstepping its powers by passing a law that essentially guaranteed a legal victory for the victims.”

“There are places in the world where courts function just the way our courts do, except every now and then, when there’s a case that the strongman who runs the country is interested in . . . he picks up the phone and he tells the court: You decide this case this way,” Roberts told an attorney for the victims. “I’m not sure I see what the difference is here.”

But questions by some other justices signaled a different view, that Congress acted within its power, and the victims could still win with their argument, the newspaper said.

Opinion: Will Kansas Tradition of Judicial Independence Survive?

When five Kansas Supreme Court justices stand for retention (up-or-down) election in November, it will occur against a backdrop of attacks on fair and impartial courts by legislators and the executive branch, Davis Merritt observes in a Wichita Eagle op-ed.

There could be dire results, he warns: “2016 could be the year that Kansas’ tradition of judicial independence dies, a victim of excessive political ideology and civic indifference.”

Merritt seeks to roust Kansans out of any “indifference” by arguing that traditional conservatives ought to be supporting judicial independence, not bashing it. “But today’s slash-and-burn Kansas conservatives value slogans such as ‘unelected, activist judges’ and ‘judicial overreach’ over true personal liberties. Their legislators seem more interested in preserving their prerogatives than protecting the republic, and their executive branch seems more interested in imposing a narrow ideology than supporting individual rights.” (more…)

Effort to Recall Trial Judge Fails in Southern California

Organizers of an effort to recall a southern California judge, whose sentencing of a pedophile stirred controversy, failed to collect the required number of signatures by Dec. 31 to get the recall onto a ballot in June.

The Orange County Register reported that not enough signatures were gathered in the effort to recall Superior Court Judge Marc Kelly. He had criticized the recall petition as “an attack on judicial independence” (see Gavel Grab).

The judge said in a statement earlier this year:

“I took an oath to uphold the Constitution, not to appease politicians. A judge who doesn’t follow the Constitution today won’t follow it tomorrow when your rights are at stake.

“Don’t let politicians intimidate judges. Keep politics out of courtrooms.”

Study: Loyalty of Justices to Appointing President is Indicated

washington-supreme-court-building-washington-d-c-dc169A study by two U.S. Supreme Court experts finds that justices vote on decisions in favor of the president who appointed them more often than with subsequent presidents, even if the latter chief executives belong to the same party as their appointing president.

In the Washington Post, reporter Robert Barnes summarizes the findings by law professors Eric Posner of the University of Chicago and Lee Epstein of Washington University in St. Louis.

Barnes notes, “Judicial independence is a mainstay of American democracy, but politics plays a vital role in how a justice gets his or her job. Presidents look for those with similar views and values. A president, after all, can serve no more than eight years, while his nominees to the court stay for decades.”

Commentary: Judicial Term Limits Idea ‘Smells of Retaliation’

Florida_quarter,_reverse_side,_2004The Florida legislature has a documented history of trying to bash the courts for decisions it doesn’t like, and that explains the genesis of a new proposal for judicial term limits, columnist Paula Dockery writes at TBO.com.

A former Republican state legislator, Dockery says the proposal for limits on the terms of state Supreme Court justices and appeals court judges “smells of retaliation” given legislators’ unhappiness with the high court’s ruling on a redistricting plan drawn in the legislature (see Gavel Grab). “We lose good, experienced judges and justices arbitrarily” with such term limits, she says. (more…)

Editorial: Campaign Spending Undermines Judicial Independence

gavelcolumnA recent editorial in the Charlotte Observer raised concern over the effect that the rising cost of winning judicial elections has on the independence of the judiciary.

Edward Hinson, author of the article and a lawyer who has been practicing in North Carolina for over 30 years and served on the state’s Judicial Standards Commission, argues that outside spending undermines judges’ ability to be independent and non-partisan and puts many in an ethical quandary. “Since the U.S. Supreme Court has lifted most restrictions on corporate campaign spending, the specter of a judiciary brought to you – or, some fear, bought for you – by corporate money cannot be dismissed.”

To illustrate this argument, the article goes on to highlight individual donors who give large sums of money to elect judges to courts in which they have cases pending. “A jury there had awarded $50 million in damages to plaintiffs suing Massey Coal Co. Massey appealed to the West Virginia Supreme Court. While the case was pending, Massey’s chairman poured $3 million into a campaign to defeat one of the justices seeking reelection. The new justice, elected with the $3 million boost, declined to withdraw from hearing the appeal. He joined the 3-2 majority in a vote to reverse the verdict as Massey wanted. The U.S. Supreme Court recognized the injustice and reversed the decision, citing a “constitutionally unacceptable appearance of impropriety.” But it did so without drawing any clear boundary.”

“To change to an appointive system would require amending our state Constitution, but the effort would be worthwhile. What’s at stake is nothing less than an independent, honorable system of justice.”

N.C. Journalist Worries About Eroding Trust in Fair Courts

gavel_cash_20121102165220_320_240Appointed to a new commission aiming to improve North Carolina’s judicial system, a journalist says he hopes that its work will help build public trust in the independence and impartiality of our courts.

Doug Clark of the Greensboro News & Record says in a column that he’s especially concerned about trust in the state courts and in helping educate the public to better understand how they work:

“In recent court races, we’ve seen outside groups with partisan interests spend millions of dollars to promote or attack judicial candidates. Our legislature ended public funding for appellate campaigns, which had been successfully adopted after the 1996 report and relieved candidates of having to raise so much money. Now lawmakers aim to return partisan labels to the ballot for some judicial races. These aren’t steps that instill public trust in the impartiality of our justice system.

“I’m also concerned about a lack of transparency and access to information in the justice system, as well as the public’s lack of understanding about the work of judges and the courts.”