Brennan Center E-Courts Alert April 23, 2010

Published by: Brennan Center for Justice at the New York University School of Law.

The Brennan Center Fair Courts E-lert summarizes news stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary.


Fair Courts E-lert, April 23, 2010
State Judicial Elections

1. “The recent charges against state Senator Jane Orie stemming from the 2009 Supreme Court race, combined with the ‘explosive’ growth in funds spent to elect appellate judges, are strong reasons why Pennsylvania should move to a merit selection system for judges, Governor Ed Rendell said [Wednesday],” according to a report by the Pittsburgh Post-Gazette. While the governor was careful not to insinuate any wrongdoing on the part of Justice Joan Orie Melvin, he maintained that the controversy involving Orie Melvin’s sisters, who were charged with “using the senator’s political staff last year to help elect another sister . . . to the Supreme Court,” would not have arisen if Pennsylvania did not elect its high court justices. The election in which Orie Melvin defeated her Democratic opponent was also among the most costly in the country, with spending totals eclipsing past totals in the state. “A total of $4.7 million was spent last year in the hard-fought . . . race . . . twice as much [as that] spent on Supreme Court races just 10 years ago.” Rendell advised the House and Senate to “quickly vote on one of two bills . . . [that] would create a 14-member panel, [comprising] some members chosen by the governor and legislators and some citizens picked by lottery.” The panel would recommend qualified nominees to the governor, who, in turn, would choose one candidate subject to Senate confirmation.”

Tom Barnes, Rendell Pushes for Merit Selection of Judges, Pittsburgh Post-Gazette, April 21, 2010.

2. At Think Progress, Matthew Yglesias flags a CalTech study finding that “justices that are shielded from voters’ influence on average (i) have better information, (ii) are more likely to change their preconceived opinions about a case, and (iii) are more effective (make less mistakes) than their elected counterparts.”

Matthew Yglesias, Politically Insulated Judges are Better Judges, Think Progress, April 19, 2010.

3. The Wisconsin Supreme Court heard arguments last week in an ethics case involving Justice Michael Gableman, who the state Judicial Commission alleged violated the judicial ethics code by lying in a 2008 campaign ad about his opponent, Louis Butler. In November 2009, a “three judge panel recommended dismissing the case,” Patrick Marley recounts at the Milwaukee Journal Sentinel, after it “agreed with Gableman that the ad did not contain an objectively false statement.” If the state Supreme Court finds that Gableman lied, possible punishments include reprimand, censure, suspension without pay, or outright removal from the bench. According to Chief Justice Shirley Abrahamson, however, drastic action is unlikely. Nonetheless, the court is currently split on whether or not it should even be hearing the case against Gableman. Justices David Prosser, Annette Ziegler, and Patience Roggensack believe the court should not rule on one of its own; their colleagues – Abrahamson and Justices N. Patrick Crooks and Ann Walsh Bradley – want the issue fully briefed. Last month, Gableman, who has recused himself from the case, claimed that comments made by Justice Crooks “showed he was biased and asked him to step aside in [the] ethics case.” (Justice Crooks disagreed, and refused.) Crook’s comments followed a remark made by Gableman’s attorney, James Bopp Jr., who said – in response to several petitions by defense attorneys to have Gableman taken off criminal cases due his alleged bias – that defense attorneys show “a willingness to subvert our system of . . . bringing criminals into account.” Those remarks sparked instant controversy.

Patrick Marley, Supreme Court Justices Hear Arguments in a Case Against One of their Own, Milwaukee Journal Sentinel, April 16, 2010.

U.S. Supreme Court

4. In his Supreme Court memo at The New York Times, Adam Liptak discusses the phenomenon of justices who, once on the bench, drift away from the ideological profile assumed by the presidents who nominate them. “These sorts of surprises,” though, “are much less likely these days” in large part, Liptak argues, because the “contemporary nominee’s resume yields so much valuable information” that a judge’s proclivities can be more carefully tracked and anticipated. What’s more, “[n]ominees’ backgrounds these days often include work for the executive branch in Washington and substantial service on a federal appeals court.”

Adam Liptak, Why Newer Appointees Offer Fewer Surprises, The New York Times, April 18, 2010.

5. At The New Republic, Barry Friedman and Jeffrey Rosen reinforce their recent claims about the relationship between the Supreme Court and public opinion, which, they argue in the piece, have come under dubious attack from the left and right.

Barry Friedman and Jeffrey Rosen, The Battle Over the Court, The New Republic, April 14, 2010.

Special Mention

6. To fill the seat of Chief Justice Thomas Moyer, who passed away unexpectedly earlier this month, Ohio Governor Ted Strickland named Franklin County probate judge Eric Brown, who will “serve the remainder of the term of Chief Justice [Moyer]” before he competes in November’s election against current state Supreme Court justice Maureen O’Connor. Poised to be the only Democrat on the all Republican court, Brown will be the first Democrat to serve as chief justice since 1986. Of the appointment, Governor Strickland remarked that “I think it was logical and reasonable and, quite frankly, what should have been expected of me, having already indicated that I thought he was the best person to lead that court.” The governor was referring to his past endorsement of Brown’s candidacy in the November contest against O’Connor.

James Nash, New Chief Justice Will Stick Out on Court, Columbus Dispatch, April 15, 2010.

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