Essay: On Marriage, Elected Judges Showing ‘Fear of Politics’?

Is there a difference between how state judges who are elected, and those who are appointed, address bans against marriage for same-sex couples? A Los Angeles Times op-ed by Billy Corriher of the Center for American Progress and Eric Lesh of Lambda Legal says there is a difference.

State high courts in Massachusetts, Connecticut, Iowa and New Jersey have issued decisions in favor of marriage equality, as have judges in Hawaii and California, although ballot measures later overruled those judges’ rulings, the authors said. All of these judges were appointed, and, the authors added, “Like federal judges with life tenure, they felt at liberty to side with equal marriage rights for same-sex couples, even if in so doing they were siding against the majority.”

Elected judges in such states as Arkansas and Texas “have lagged behind for years, perhaps because they feel pressure to rule based on popular sentiment,” the authors said, and the justices in those states “seem to be avoiding a political controversy by delaying their rulings.” And elected justices in Alabama voted to defy a federal court order telling probate judges that same-sex couples have a right to marry. The authors concluded, with an eye on an ultimate ruling from the U.S. Supreme Court: (more…)

Short on Judges, New Jersey County Will Suspend Some Trials

When politics collides with selecting judges, the outcome can directly affect people who use our courts. The latest evidence of this concern comes from a article reporting the following:

“Scores of divorce and civil trials in Bergen County have been suspended indefinitely due to judicial retirements and an ongoing political battle between the governor and Democratic state senators.”

New Jersey requires Senate confirmation of the governor’s judicial nominees, similar to the federal method for picking judges, but its judges do not get lifetime appointments as federal judges do. Gov. Chris Christie is a Republican, and the Senate is controlled by Democrats. (more…)

Commentary: Has Corporate America Slashed Access to Justice?

Thousands of Americans no longer have access to justice when it comes to suing corporations, after a conservative legal movement has pushed hard for judicial restraint and a corporate lobby has pressed for “tort reform,” Lina Kahn of the New America Foundation writes at Washington Monthly. Kahn says:

“Two recent US Supreme Court rulings — AT&T Mobility v. Concepcion and American Express v. Italian Colors Restaurant have deeply undercut … centuries-old public rights, by empowering businesses to avoid any threat of private lawsuits or class actions. The decisions culminate a thirty-year trend during which the judiciary, including initially some prominent liberal jurists, has moved to eliminate courts as a means for ordinary Americans to uphold their rights against companies. The result is a world where corporations can evade accountability and effectively skirt swaths of law, pushing their growing power over their consumers and employees past a tipping point.” (more…)

'Open Season' on Defense Lawyers at Election Time?

When some U.S. Senate critics of the nominee for a top Justice Department post recently criticized his having represented a defendant convicted of killing a police officer, Justice at Stake spoke out about the resulting dangerous implications for citizens’ access to justice (see Gavel Grab).

Now a similar controversy is generating news headlines and debate. Former Secretary of State Hillary Clinton has come under attack from some critics for her representation in 1975 of an indigent defendant accused of raping a 12-year-old girl. Regarding this criticism, attorney Jonathan Adler writes in the Washington Post, “It seems that election season is open season on defense attorneys.” Adler elaborates: (more…)

Some States Grapple With Rising Need, and Cost, for Interpreters

interpretersStates with diverse populations are facing a rising need to provide language interpreters in court, and the cost is causing challenges for states with money constraints, the New York Times says.

In its article from Santa Fe, New Mexico, the Times reports, “As the Demand for Court Interpreters Climbs, State Budget Conflicts Grow as Well.” At home, about one of three New Mexico residents speaks a language other than English. Since 2004, a fund that pays the wages of court interpreters has increased by 76 percent, while demand for court interpreters has grown faster.

When Arthur W. Pepin, director of New Mexico’s Administrative Office of the Courts, appeared before a state finance board to ask for additional funds, he warned that he might have to start issuing IOUs to jurors, because their (more…)

Law Profs: Don't Find Lawyers 'Guilty by Association' With Clients

CapitolflagMore than 1,000 law professors have written to leaders of the Senate Judiciary Committee voicing their “deep concern” about the debate that surrounded the Senate’s vote on attorney Debo Adegbile’s nomination for a top Justice Department post.

During the debate, some critics voiced opposition to the nomination based in part on Adegbile’s having represented the convicted killer of a police officer.  The Senate went on to block Adegbile’s confirmation at least temporarily (see Gavel Grab). According to the Legal Ethics Forum blog, the law professors wrote:

“While we do not take a position on this or any other nominee, we are deeply concerned that the vote and the rationale publicly articulated by a majority of Senators rejecting Mr. Adegbile sends a message that goes to several core values of the legal profession. These include the right to counsel, the importance of pro bono representation, and the importance of ensuring that constitutional protections are afforded to every criminal defendant regardless of the crimes for which they are accused.” (more…)

Retraction Asked for Political Ad About Lawyer's Defense Work

James R. Silkenat, the American Bar Association president, has written the Republican Governors Association and asked it to take down a political ad that disparages a candidate for his legal defense work.

In South Carolina, Gov. Nikki Haley, a Republican, is opposed for reelection by Vincent Shaheen, a Democrat, attorney and state senator. A screen shot from the ad states: “Vincent Shaheen. Protects criminals. Not South Carolina.”

“The Republican Governors Association ad sends a disturbing message to lawyers — that their clients’ past actions or beliefs will stain their own careers, especially if they want to serve their country in public office,” Silkenat wrote to the governors group and New Jersey Gov. Chris Christie, its chairman, according to The State newspaper. (more…)

Essay: 'Flawed' Jury Rule in Louisiana Deserves Overturning

louisiana-quarterIn a lengthy Atlantic commentary, legal journalist Andrew Cohen shines a light on an unusual rule governing jury trials in Louisiana and only one other state, Oregon. The rule permits a verdict without a unanimous jury.

The U.S. Supreme Court will decide in a conference on Friday whether to take up one of several cases asking for review of the Louisiana statute. Cohen presents history and case law outlining an argument that in Louisiana, the non-unanimous jury verdict rule was “born of white supremacy,” has in fact denied access to justice to some defendants through a “flawed” system, and warrants overturning. It takes 10 out of 12 jury votes to convict a defendant in Louisiana. Cohen writes:

“What does this rule really do? It increases by a significant degree the odds of a conviction following trial. But it also means that prosecutors can comply with their constitutional obligations to permit blacks and other minority citizens to serve as jurors but then effectively nullify the votes of those jurors should they vote to acquit. That precise scenario has happened in some cases that ultimately resulted in wrongful convictions. The Supreme Court has the opportunity to finally end this practice, which is unjust both in its intent and its effect.”

Hiring to Begin to Fill U.S. Defender Jobs Lost to Cuts

With a new federal fiscal 2014 budget providing increased funding, hiring can begin to fill about 350 of 400 positions in federal defender offices where employees were lost due to across-the-board budget cuts, court officials said this week.

Chief Judge William Traxler Jr., chairman of the  executive committee for the Judicial Conference of the United States, made the announcement on Tuesday, according to the Blog of Legal Times.

Congress approved in January a fiscal 2014 appropriations bill that increased discretionary spending for the courts by $316 million, and restored a majority of the $350 million that was cut under the across-the-board reductions called “sequestration.” This appropriation gives the judiciary “a little bit of breathing room,” Judge Traxler said, but uncertainty remains about the next fiscal year’s budget. 

Report Documents U.S. 'Access to Justice' Gap

In the United States, where there is no right to legal counsel in civil disputes,  a major “access to justice gap” affects women, minorities and immigrants disproportionately, according to a new report.

“In the United States, millions of people are forced to go it alone when they’re facing a crisis,” Risa Kaufman, acting co-director of the Columbia Law School’s Human Rights Clinic, told NPR. Advocates at the clinic prepared the report. “It’s a human rights crisis, and the United States is really losing ground with the rest of the world.”

Some states and cities are working to develop innovative programs, including one in New York to offer lawyers to immigrants who are facing deportation. Kaufman added, “We’re really recommending the U.S. government step up…that it support state level efforts to establish a right to counsel in certain civil cases, that the U.S. ease restrictions and increase funding for the Legal Services Corporation.”