Friday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:
  • Lt. Governor Bill Bolling of Virginia wants a new selection process for judicial appointments after an impasse in the legislature, which is empowered to pick judges. Bolling has suggested using a bipartisan judicial selection commission, according to aWashington Post article.
  • Pittsburgh Post-Gazette blog article reports on a controversy that developed after Justice Max Baer spoke with the press about a case, prior to the release of the court’s opinion. The State Republican Party unleashed a scathing critique, calling for a reprimand for the justice and his recusal from further judicial activity related to the case.
  • Wisconsin Supreme Court Justice Michael Gableman continues to face controversy after apparently judging himself reasonable enough to know when he should recuse from a case, according to Tony Walter’s column in the Green Bay Press Gazette.

Alabama Chief Justice Boasts About State's All-GOP Court

Alabama Chief Justice Chuck Malone (photo) has boasted about the completely Republican makeup of his state’s Supreme Court in email reported by a sharply critical Eufala (Ala.) Tribune commentary. The column also cites the Justice at Stake Campaign.

“For the first time, we have a completely Republican Supreme Court and I am honored to be able to serve the people of Alabama as Chief Justice of that court and to ensure that the rule of law is upheld in our state,” Justice Malone wrote, according to Patrick Johnston’s commentary. Johnson’s column is entitled, “Why brag about a partisan court?”

Justice Malone was appointed by Gov. Robert Bentley last summer. As a result, Johnston remarks, “The Supreme Court of Alabama is as red as Tuscaloosa on a football Saturday. What does that say about the scales of justice?”

That a high court would be comprised of judges all of any political stripe is troubling, Johnston says, and the single-party composition of Alabama’s Supreme Court is even “more skewed” than the oft-criticized Ninth U.S. Circuit Court of Appeals.

The way that Alabama chooses its Supreme Court justices through partisan, contested elections is one example of how politics in Alabama is broken, Johnston contends.


Tennessee Editorial Boosts Merit Selection Amendment

A proposal by three top elected leaders for a constitutional amendment to legitimize Tennessee’s merit selection of judges has gotten a big boost from a (Knoxville) News Sentinel editorial.

The state’s governor and House and Senate speakers, all Republicans, outlined earlier (see Gavel Grab) their proposal to clarify the legal status of the state’s appointment and retention election system, called the Tennessee Plan. The state constitution requires that judges “shall be elected by the qualified voters of the State,” and critics have contended Tennessee’s merit selection plan is unconstitutional.

The editorial is entitled “Judicial selection plan worthy of public support,” and it explains about the proposal:

“The proposal is a prudent way out of the ambiguity. The selection process works well, and the direct election of judges would needlessly add a deep level of politics over the judiciary. Those who would be judges would be forced to raise money and wage statewide campaigns to gain office.”


Impact of State Court Budget Cuts Felt Across Nation

It’s not always easy to grasp just how much funding cuts are harming state courts.

But in a day’s media dispatches about budget cuts, Gavel Grab found glimpses of postponed trials, shortened hours, fewer court employees and delayed justice for people using the courts. Taken together, the dispatches convey both the breadth, and the depth, of the crisis:

  • “Justice delayed: Iowa court system staggers under mounting weight of backlog,” declared the headline for a special report in The Gazette newspaper.
  • Idaho Chief Justice Roger Burdick, in his State of the Judiciary speech, “described a judicial system struggling to keep up with an increased caseload while dealing with limited resources,” according to a Twin Falls Times-News article.
  • In Allegheny County, Pa., the Pittsburgh Tribune-Review reported, “courts officials have frozen hiring and proposed other cost-saving measures, including possibly cutting two vacant Common Pleas judge seats to fill a $3.5 million budget hole.”
  • A Baxter (Arkansas) Bulletin headline trumpeted, “Chief justice seeks surplus money for Arkansas courts.”
  • A (Florida) Times-Union editorial was entitled, “Florida’s courts need reliable funding.”
  • In California, according to a Fresno Bee article, judges have resumed their “civil war” that is about “over how to allocate pain as the courts adjust to reduced financing.”

Top Tennessee Leaders: Write Merit Selection into Constitution

Tennessee’s governor, House speaker and Senate speaker announced Wednesday their opposition to popular election of judges and their proposal for a constitutional amendment to legitimize the state’s merit selection process.

Each member of the powerful trio is a Republican. “There have been so many discussions on this, I think there’s a need for finality and clarity,” said Gov. Bill Haslam. He had been cool in the past about the idea of calling for a constitutional amendment, according to a Knoxville News Sentinel article. 

In a prepared statement, Haslam explained his broader thinking, the Associated Press reported: 

“I believe the current process has worked well during my time in office, and I’ve been pleased with both the quality of candidates and the process for choosing them. The judiciary is the third and equal branch of government, and we are here to make this recommendation because we believe it is important to our constitution to clearly reflect the reality of how we select judges in Tennessee.”

The Tennessee Constitution requires that judges “shall be elected by the qualified voters of the State,” yet the current merit system has been upheld by two state courts and one federal court. Some critics have called the current system unconstitutional.


Assault on Florida Merit Selection Gains in Legislature

A feature of Florida’s merit selection system for choosing judges is targeted in legislation advancing in the state Senate, as well as the state House.

The Senate Judiciary Committee approved Wednesday a bill to allow the governor to replace upon taking office a majority of members on any of the nine-member judicial nominating commissions, according to a Sunshine State News article.  These panels screen candidates for the appellate and trial courts and make recommendations to the governor for appointment.

The legislation would apply specifically to the five members the governor appoints on his own; he also appoints four members from a list furnished by The Florida Bar.

Bill sponsor Sen. David Simmons, a Republican, said, “I know the governor would like to be able to have all members serve at the pleasure of the governor.” He added, “But the problem with that is, maybe there’ll be another governor of another party someday, heaven forbid that happens.”


Illinois Recusal Bill Aimed at Restoring Trust in Fair Courts

Reform advocates have introduced a bill to keep the influence of campaign cash out of the courtroom in Illinois. The measure is aimed at requiring judges to recuse themselves from cases if their campaigns receive $500 or more from an attorney involved in the litigation.

Two Republican legislators introduced the bill in the wake of a judge in Madison County, Ill. accepting $30,000 in campaign contributions from law firms representing plaintiffs in asbestos-exposure litigation. Circuit Judge Barbara Crowder subsequently was reassigned from hearing all asbestos cases (see Gavel Grab).

“The question of fairness in our court system continues to be a concern in Madison and St. Clair counties especially when judges receive thousands of dollars from the very same lawyers appearing before them,” Rep. Dwight Kay said, according to a Belleville News Democrat article.

“Whether the judge was influenced by those campaign contributions or not, it gives the appearance of ‘Justice for Sale’ and is perceived as a conflict of interest. This reform legislation will remove the concern that campaign donations influence the judicial process.”


Thursday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • “Chris Christie’s court picks confuse conservatives,” declared the headline for a commentary by Paul Shine in the (Newark) Star Ledger, regarding two state Supreme Court nominees who would bring diversity to that court (see Gavel Grab).
  • A new initiative to bring TV cameras into Illinois state courts is to be applauded, said a (Springfield) State Journal-Register editorial.
  • For Slate, Dahlia Lithwick wrote a commentary entitled, “The Political and the Personal: What the Supreme Court can learn from Gabby Giffords and Jeff Flake.”

Nominations Rule Change Faces Unclear Future in Senate

Senate Majority Leader Harry Reid endorsed President Obama’s proposal for new rules to guarantee up-or-down votes on on judicial and executive-branch nominees in 90 days, yet it was not clear whether the proposal would get off the ground.

Obama made the proposal in his State of the Union speech (see Gavel Grab). A Roll Call article described the proposal as one to end filibusters of presidential nominations, an idea unlikely to be executed.

Sen. Reid endorsed the rules change idea, according to The Hill newspaper, but stopped short of applying it to Supreme Court nominees.

Some Democrats such as Reid suggested the nominations process is in greater disrepair than ever, and that should trigger consideration of reform. “We just seem to have come to a point now where the Senate Republicans [say] that they’re going to approve no new judges,” Roll Call quoted Reid as saying.

But Senate Majority Whip Dick Durbin said, “It seems so obvious and clear until you get into it, then you find that getting the necessary votes together [to change the rules] and holding them through this process is more difficult.”


Law Professors Urge High Court Transparency on Recusal

Chief Justice John Roberts Jr. wrongly takes a “trust us” approach in discussing calls for two fellow justices to recuse from the health care case, two law professors argue in a Politico commentary. They seek greater transparency from the high court about recusal decisions.

William Yeomans and Herman Schwartz of American University maintain that the court’s “fundamental legitimacy rests on the notion that judges apply the facts to the law impartially and explain what they have done in reasoned opinions for all to read. Roberts’s position mocks that.”

The American public and the bar have a check on the court’s power through the transparency that it provides with public legal opinions. That transparency “is even more essential when the justices apply the law to themselves,” such as in deciding on recusal calls in the health care case, they reason.

“Courts obviously need secrecy for their deliberations and decision making. But there can be no harm in a justice explaining why he or she withdraws from a case or refuses to withdraw,” the law professors conclude. “The Supreme Court’s fetish for secrecy denies the American people their right to know whether the justices are doing their job as they should.”