Obama Would Elevate Bush Judicial Appointee

President Obama has nominated for the Fourth U.S. Circuit Court of Appeals a South Carolina judge who was named to the federal bench by then-President George W. Bush.

U.S. District Judge Henry F. Floyd became the first judge named by President Bush to be nominated for a higher judgeship by Obama, according to a McClatchy Newspapers article.

The Blog of Legal Times reported that Judge Floyd had an important role in ruling on challenges to the Republican president’s indefinite detention system. In 2005, the judge ruled that President Bush went beyond his authority in holding Jose Padilla, a U.S. citizen, without charges. Padilla had been detained as an “enemy combatant.”

“He was very courageous in his ruling in Padilla,” said University of Richmond law professor Carl Tobias. “That was not a popular ruling. He took a lot of flack for that. Any judge would (take flack), but especially a guy appointed by President Bush.”

The Fourth Circuit reversed the judge’s decision. Padilla was charged in a civilian court and convicted by a jury of terrorism-related counts.

Thursday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • A screening commission working to fill three vacancies on the Iowa Supreme Court finished the last of its interviews with 60 candidates, the Sioux City Journal reported. Supreme Court Justice David Wiggins, who participated, said Iowans were served well by the commission’s interviewing the candidates in public. That was a new procedure.
  • Republican legislators in Florida said they were preparing to remove some of the state Supreme Court’s powers, such as writing the rules that set practices and procedures for the statewide judicial system, according to an Orlando Sentinel article. The move came after the state high court had struck some Republican-backed measures from last year’s ballot.
  • The Fourth U.S. Circuit Court of Appeals has sped up its scheduling for hearings on two cases challenging the constitutionality of the federal health care reform law, with both hearings to be held the same day in May, according to a SCOTUSblog post.

Bid for Vote on MN Chief Justices Rejected

Two Minnesota lawyers have lost a court round in their effort to require that  Minnesota elect its state Supreme Court chief justices.

An Eighth U.S. Circuit Court of Appeals panel turned aside the pair’s claim that former Gov. Tim Pawlenty skirted the democratic process when he appointed several chief justices, according to a Star Tribune article.

The panel ruled that it did not have jurisdiction to impose the requirement sought by attorneys Gregory Wersal and Jill Clark.

Clark said she and Wersal were looking at whether to seek further legal review or a change instate law.

Editorial: Justices' Boycotting Speech is Political Act

When Supreme Court justices stay away from the State of the Union address, is it a political snub?

A Boston Globe editorial suggests as much about the no-show Tuesday by Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr. at President Obama’s speech. It also rues what it calls the three conservative justices’ thereby bringing “politics to the court:”

“Showing up isn’t a political gesture; boycotting it is. Chief Justice John Roberts, who had wavered about attending, seems to have realized this and agreed to lead the court contingent [that attended].”

“[T]he nation is best served by a Supreme Court it can trust to be a source of independent judicial review. When justices advertise their politics, even through indirect gestures like skipping speeches, they undermine their position. They should show better judgment.”

The editorial also chides Obama, saying he doesn’t have grounds for complaint “because his scolding of the court last year over its campaign-finance decision was rude and self-serving.” The president “deserves some blame for politicizing the court,” the editorial said. “But he’s a politician.”

Recusal Issue Raised in Emanuel Residency Appeal

Justice Ann Burke of the Illinois Supreme Court (photo at left) appears unlikely to disqualify herself from hearing former White House Chief of Staff Rahm Emanuel’s residency appeal, although some have called on her to do so.

Justice Burke’s husband is Ed Burke, a Democratic Chicago alderman who has backed former Chicago Public Schools board president Gery Chico for mayor, according to a Politico article.

The state’s top court said Tuesday it will decide whether Emanuel (photo at right) can run for mayor, the Associated Press reported. An appeals court earlier found that he had not lived in Chicago for a year before the election and ordered his name removed from the ballot.

According to a Chicago Business blog, Justice Burke rejected the idea of recusing herself from the case. “Aren’t we beyond that? Women have minds of their own,” she said. “We have spouses in every kind of business.”

She is one of seven jurists on the Illinois Supreme Court. No rules govern when or why a justice must recuse, Politico said. The article said some commentators and politicians have urged that she step aside from the case in order to avoid the appearance of a conflict of interests.

Debate Rekindled Over Trying Accused Terrorists

A federal judge’s sentencing of Ahmed Khalfan Ghailani to life in prison for his role in the 1998 bombings of two U.S. embassies in Africa (see Gavel Grab) refueled a longterm debate about trying accused terrorists in the civilian courts.

Ghailani was acquitted of more than 280 charges of murder and conspiracy. His case “highlighted the challenges of affording full constitutional protections to terrorism suspects who were once held in secret detention overseas and subjected to harsh interrogation tactics by US intelligence officials,” a Christian Science Monitor article said.

Federal District Judge Lewis Kaplan ruled earlier that a star witness could not be used in Ghailani’s trial due to coercion of Ghailani, who had identified the witness.

House Judiciary Committee Chairman Lamar Smith (R) of Texas said about the case, “The first foreign terrorist detained at Guantánamo Bay to be tried in civilian courts, Ghailani’s trial was a test run for the Obama administration’s plan to try foreign terrorists in US courts. It was also a near-disaster.”

“This tragic verdict demonstrates the absolute insanity of the Obama administration’s decision to try Al-Qaeda terrorists in civilian courts,” Rep. Peter King, R-N.Y., told BBC. (more…)

Wednesday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • As some analysts predicted, the six Supreme Court justices who attended President Obama’s State of the Union address (see Gavel Grab) were Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, Anthony Kennedy and Chief Justice John Roberts Jr., the Los Angeles Times reported.
  • Same-sex couples argued for the same rights as wedded people during legal proceedings before a state judge in Helena, Montana, according to a Billings Gazette article.
  • Sabrina Shizue McKenna, a veteran state judge, was nominated by Hawaii Gov. Neil Abercrombie to the state Supreme Court. If confirmed, she would be Hawaii’s first openly gay member of that court, the Honolulu Star-Advertiser reported.

'Judicial Emergency' Declared in Arizona

A federal judge in Arizona has declared a judicial emergency, effectively relaxing the time limits set for trying accused criminals in court.

Judge John M. Roll was waiting to talk to Rep. Gabrielle Giffords about an overload of cases facing the federal courts in Arizona when both were shot outside a Tucson supermarket Jan. 8 (see Gavel Grab). Judge Roll was among six people who died. His successor as chief federal district judge, Roslyn O. Silver, subsequently declared the emergency, according to an Arizona Republic article, entitled “Judge John Roll’s Death Prompts Judicial Emergency.”

Chief Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals said he was hopeful that Congress would take action in response to the emergency declaration.

According to the Arizona Republic, amid clamor for tougher enforcement of drug and immigration laws, federal felony caseloads have soared to a record high in the state; and judicial appointments have slowed due to partisan politics in Washington. Judge Roll’s slaying worsened the problem. He had sought an emergency declaration.

“The district court in Arizona urgently needs additional resources. Judicial vacancies need to be filled and new judgeships should be given strong consideration,” the Wall Street Journal quoted Judge Kozinski as saying.

The federal court in Arizona claims the highest criminal caseload in the region covered by the Ninth Circuit and the third-highest caseload in the nation. Two districts in Texas rank ahead of it. (more…)

JAS Sets Capitol Hill Briefing

The Justice at Stake Campaign will brief members of Congress, their staff and others in a Friday session about keeping our courts fair and impartial.

The Capitol Hill event, entitled “Justice for Sale? The Battle for America’s Courts,” will feature the following speakers: the Honorable Wanda Bryant, Judge at the North Carolina Court of Appeals; Seth Andersen of the American Judicature Society; Adam Skaggs of the Brennan Center for Justice at New York University; and Hugh Caperton, plaintiff in the landmark Supreme Court case, Caperton v. Massey. Justice at Stake staff, including Executive Director Bert Brandenburg, also will make presentations.

U.S. Rep. Hank Johnson of Georgia will co-host the 2 p.m. event. People interested in attending should RSVP Caitlin Russi at crussi[at]justiceatstake.org. Justice at Stake is a nonpartisan national partnership working to keep courts fair, impartial and free from special-interest and partisan agendas.

Justice Scalia Addresses Lawmakers

Much of he fury over Justice Antonin Scalia’s speaking to the Tea Party Caucus of the U.S. House apparently subsided afterward.

In advance of the Supreme Court justice’s appearance Monday, some critics had raised a specter of “collusion” or concern about increased politicization of the high court (see Gavel Grab).

An invitation was extended to lawmakers outside the conservative group. Several Democrats attended, and one of them, Rep. Jerrold Nadler of New York, said after the closed-door session, “There was nothing partisan here.” The Blog of Legal Times quoted Nadler as adding, “It was Justice Scalia expressing his views.”

That blog paraphrased two of Justice Scalia’s  key tips to lawmakers as “be as specific as possible when writing legislation, and watch the boundaries set out by the Constitution.”

Nina Totenberg concluded for a NPR report that “on Monday night there appeared to be more fizzle than sizzle to the charge of unseemly partisanship by a Supreme Court justice.”

The justice avoided talking about hot-button legislation, according to Politico.