Thursday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • In  a New York Times Opinionator blog post, Linda Greenhouse examines the upcoming term of the Supreme Court in a commentary entitled, “The Fire Next Term.”
  • The Administrative Office of the Courts, which runs California’s court system, has become “dysfunctional,” according to a report ordered by California Chief Justice Tani Cantil-Sakauye that is the topic of a Los Angeles Times article.
  • A New York Times editorial addresses President Obama’s choosing targets for assassination in what it calls the shadow war on terrorism. It says Obama “should publish clear guidelines for targeting to be carried out by nonpoliticians … and allow an outside court to review the evidence before placing Americans on a kill list.”



Appeals Court Strikes Down Portion of Defense of Marriage Act

The First U.S. Circuit Court of Appeals has declared a portion of the federal Defense of Marriage Act to be unconstitutional. The ruling on Thursday “likely sets the stage for the issue of same-sex marriage to finally be explored by the US Supreme Court,” the Boston Globe reported.

Under the Defense of Marriage Act (DOMA),  married same-sex couples (in states where their union is permitted) have been denied a mix of federal benefits provided to heterosexual married couples, including health insurance and the benefits of filing joint tax returns.

The appeals court found that Section 3 of the law discriminates against same-sex couples. That section provides that the federal government will only recognize marriages that are between one man and one woman.


Stevens: Obama Rightly Questioned Citizens United Ruling

Retired Supreme Court Justice John Paul Stevens says that President Obama was right when he leveled a challenge two years ago to the Supreme Court’s Citizens United decision. Obama made his remark in a State of the Union speech, with justices in attendance.

“In that succinct comment, the former professor of constitutional law at the University of Chicago made three important and accurate observations about the Supreme Court majority’s opinion,” Justice Stevens said in a speech on Wednesday in Little Rock, Arkansas, according to a Los Angeles Times article.

“First, it did reverse a century of law; second, it did authorize unlimited election-related expenditures by America’s most powerful interests; and, third, the logic of the opinion extends to money spent by foreign entities.”

Justice Stevens, who dissented in the 5-4 Citizens United decision, said the court “has already begun paring the scope of that decision, and predicted that it very likely will do so further in future cases,” Lyle Denniston wrote in SCOTUSblog.


Article: As Governor, Romney Backtracked on Judicial Selection Reform

Mitt Romney pledged to purge patronage and partisanship from judicial selection as Massachusetts governor, yet he ended up reversing on his far-reaching, promised reforms. He took control over an independent screening commission he had touted, narrowed its role and politicized judicial selection, according to a Washington Post article.

The article appeared on the Post’s front page under the headline, “In Mass., Romney reversed his reform: Governor backtracked on nonpartisan system of judicial appointments.” With its display and unusual length, the article gave prominent attention to a newly elected governor’s promises for a “squeaky-clean process that no room for politics and favors” and his subsequent reversals:

“Three years later, Romney changed course. He effectively took over the independent judicial-screening commission he had unveiled with such fanfare. And as he geared up to run for president in 2008, he dismissed members of the commission who were resisting his choices for judgeships, according to documents and interviews.”

After taking office in 2003, Romney had “signed an executive order promising a merit-based, nonpartisan process for naming new judges,” according to the Post. The changes he embraced were applauded as a national model.


Analyst Dismisses Claims He Tried to Pressure Chief Justice

Legal analyst Jeffrey Rosen says it comes as “a surprise” that some pundits on the right saw him trying to “intimidate” or “bend” Chief Justice John Roberts Jr. in his recent essay about the Supreme Court’s approach to the Affordable Care Act case.

Responding to criticism from George Will (see Gavel Grab) and another conservative columnist, Rosen (photo at right) writes in The New Republic that he merely is looking to judge whether Chief Justice Roberts succeeds, when the health care case is decided, in accomplishing an earlier-stated goal. (Rosen wrote recently that “a moment of truth” is ahead; he asserted that if the Supreme Court overturns the law on a 5-4 vote, then the Chief Justice’s “stated goal of presiding over a less divisive court will be viewed as an irredeemable failure.”)

“I suggested that this is a moment of truth for Chief Justice Roberts because I’ve been a staunch supporter of the vision of bipartisanship that he articulated when he became Chief Justice, and have continued to defend him during the past six years when others have denounced him for failing to live up to the standards he set for himself,” Rosen explains in his follow-up commentary.


Maryland Legislators Busy Responding to Court Rulings

Legislators in Annapolis, the capital of Maryland, are going back to the drawing boards in a special session to tackle a number of topics, including getting around a Court of Appeals ruling about pit bulls and liability that has stirred controversy.

According to a Baltimore Sun article, the session will mark at least the fourth time this year that legislators are drafting measures to respond to a ruling by the state’s highest court. There is an age-old “tug of war” between the legislative and judicial branches, and it has intensified with some recent rulings, the article said.

“This is our system,” said Professor Prof. Kathleen Dachille of the University of Maryland Carey School of Law. “We learned it in fifth grade, the checks and the balances, and this is the way it’s supposed to work.”

Del. Kathleen M. Dumais, a Democrat and vice chair of the Judiciary Committee, suggested the process is working properly, and she hasn’t heard rumblings about tension between the court and legislature.


Wednesday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • The Supreme Court will weigh whether to take up a Montana case, considered  by some a sequel to Citizens United, in conference on June 14, according to a SCOTUSblog post. To learn more about the case, and a Justice at Stake amicus brief filed with the court, see Gavel Grab.
  • South Carolina’s Senate has given tentative but not final approval to a bill that would establish nine new judgeships in the state, according to The State newspaper.

He Never Opposed Gay Judges, Virginia Governor Says

Virginia’s Republican Governor, Robert F. McDonnell, said he believes in judicial selection based on merit and has never opposed  judges because they are gay. On a radio show, he said his effort as a legislator to unseat a lesbian judge in 2003 was different.

McDonnell (photo) was asked by the host of WTOP’s “Ask the Governor” program about the 2003 episode, according to a Washington Post article. At the time,  he questioned whether a person could serve as a judge if the person had engaged in sex in violation of an anti-sodomy statute then in effect in Virginia (and since ruled unconstitutional by the U.S. Supreme Court).

This week, McDonnell said, “I was very clear in other statements of the time that those factors should not be an element of the decision making.” In fact, McDonnell said, the judge was not reappointed in 2003 because an accusation was made that she had sexually harassed a female employee and had failed to report the employee’s lawsuit against her on a judicial application.


Editorial: 'Talent Should Trump Politics' in Picking Ohio Justice

In replacing Ohio Supreme Court Justice Evelyn Lundberg Stratton, who will retire in December, Gov. John Kasich (photo) should demonstrate how a merit-based judicial selection system could work in the state, a Cleveland Plain Dealer editorial urges. It elaborates:

“When filling judicial posts in Cuyahoga County, the governor has worked off lists of candidates screened by the local bar’s Judicial Qualifications Committee. Doing the same at the statewide level would send a powerful message that talent should trump politics.”

Perhaps Kasich could set up a panel, possibly made up of Ohio State Bar Association leaders or law school deans, to screen potential nominees for their qualifications and temperament, “not electability or political ties,” the editorial says.

When an interim vacancy on Ohio’s Supreme Court occurs, the governor appoints an individual to fill it. For full terms on the court, Ohioans select judicial nominees in a partisan primary, and then vote a nonpartisan general election for a winner. Ohio has some of the nation’s most expensive judicial elections, and their cost has risen steadily over the past 20 years.

To learn more, see Justice at Stake’s state page about Ohio, or the JAS issues page about election of judges versus an appointment-and-retention election system.

Justice Stevens Honored With Presidential Medal of Freedom

Retired Supreme Court Justice John Paul Stevens received the Presidential Medal of Freedom award from President Barack Obama on Wednesday. Obama cited Justice Stevens’s “signature style: modest, insightful, well-prepared, razor-sharp.”

The president continued, according to a Wall Street Journal blog post:

“He is the third-longest serving justice in the history of the court. And Justice Stevens applied, throughout his career, his clear and graceful manner to the defense of individual rights and the rule of law, always favoring a pragmatic solution over an ideological one. Ever humble, he would happily comply when unsuspecting tourists asked him to take their picture in front of the court. And at his vacation home in Florida, he was John from Arlington, better known for his world-class bridge game than his world-changing judicial opinions. Even in his final days on the bench, Justice Stevens insisted he was still ‘learning on the job.’ But in the end, we are the ones who have learned from him.”