Articles Posted in Commentary and Opinion

ABA Standing Committee on Judicial Independence (SCJI)

In an October 20, 2010 e-mail discussing the Report, William K Weisenberg, Chair, ABA Standing Committee on Judicial Independence writes:

“On behalf of the Standing Committee on Judicial Independence (SCJI), I am pleased to present for your consideration recommendations and a report that address one of the most significant issues impacting the public’s trust and confidence in a fair, impartial and independent judiciary – the disqualification of a judge when the impartiality of the judge might reasonably be questioned either through specific conduct or the appearance of impropriety. In July, 2010, an updated draft of the recommendations and report was distributed widely for review by ABA entities and outside groups. The Committee held a public forum at the 2010 ABA Annual Meeting on Saturday, August 7, 2010, in order to encourage audience comments and suggestions on the revised proposal. Based upon the comments and suggestions received both at the forum and thereafter, SCJI revised the recommendations and report. They will be submitted to the House of Delegates for consideration at the 2011 Midyear Meeting. SCJI feels strongly that it has met its objective of helping states improve their judicial disqualification practices and procedures by providing to state supreme courts a menu of options to be considered as states move forward with adoption of standards and rules, while promoting public confidence in the state courts….”

From the Brennan Center for Justice, Fair Courts E-Lert October 15, 2010:

Justice Elena Kagan’s decision to recuse herself in 25 of the cases the U.S. Supreme Court has agreed to hear continues to inspire discussion about judicial disqualification. A New York Times editorial praises Justice Kagan’s decision, but questions the credibility of a judicial system that relies on voluntary recusal. The editorial recounts two recent examples – Justice Antonin Scalia’s decision not to disqualify himself from a case involving then-Vice President Cheney, with whom the Justice socialized, and Caperton v. Massey, the 2009 landmark recusal case – in which unclear recusal guidelines cast doubt on judicial impartiality. Senator Patrick Leahy, the chairman of the Senate Judiciary Committee, is currently pushing legislation to allow retired Supreme Court justices to return to the bench if a current justice must recuse, but the Times editorial contends a more vigorous disqualification process is necessary. Meanwhile, another Times editorial argues that Justice Clarence Thomas’ wife should be required to disclose donors to the conservative nonprofit organization she leads so that Justice Thomas can “comply with a fundamental ethical and legal requirement to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” A separate Times article reports that Mrs. Thomas – who recently appeared at a large Tea Party convention – is playing “the most partisan role ever for a spouse of a justice on the nation’s highest court.”

Justice Thomas and His Wife, New York Times, October 12, 2010; Activism of Thomas’s Wife Could Raise Judicial Issues, New York Times, Jackie Calmes, October 8, 2010; Recusals and the Court, New York Times, October 7, 2010.

A significant note from the Duke Law Journal by Joanna Huang with the above title has been posted today September 29 on the Sentencing Law and Policy blog According to Ms. Huang, “…in 1987 the United States political and social systems lost trust in the judiciary and severely limited its authority by enacting the Federal Sentencing Guidelines.” She goes on to observe that in 2005 trust was restored in the judiciary when United States v. Booker made the Sentencing Guidelines advisory; and that, although Booker provides for increase in judicial discretion, judges are still unable to correct sentences imposed during the intervening eighteen years because Booker does not apply retroactively.

For more, we recommend that you go to the Sentencing Law and Policy blog

NOTE:

.Following up on our postiing about U.S. Supreme Court Associate Justice Stephen Bryer, we wanted to share with you the following excerpts from news and commentary sent to us by the Brennan Center for Justice at the New York University Law School

September 24, 2010.

1.. On Thursday, the Senate Judiciary Committee again voted to approve four of President Obama’s nominees for federal judgeships. Goodwin Liu, a Berkeley law professor for the Ninth U.S. Circuit Court of Appeals, Louis Butler Jr., a former Wisconsin Supreme Court Justice, U.S. Magistrate Judge Edward Chen of California, and lawyer John McConnell Jr. of Rhode Island – all of whom had been previously approved by the Senate panel but never received a final vote on the Senate floor – were approved along party lines. The Blog of Legal Times says the vote indicates a partisan showdown in the weeks before the heated mid-term elections. Two opposing editorials illustrate how divisive the issue is: a New York Times editorial recently blasted “An Extreme Judicial Blockade” by Senate Republicans while a Washington Times editorial stated that a “GOP Senate [is] needed to block bad judges.”

I often find there is little time to read all of the books I would like, or even need, to and therefore find myself resorting to book reviews. Last Sunday I read a review that to me seemd exceptional and would like to share it with you.

David Badertscher

REVIEW::

Apparently the court system in Missouri thinks so. In her article, Missouri Tells Judges Cost of Sentences, publsihed in the September 18 New York Times, Monica Davey reports that “When judges here [Missouri] sentence convicted criminals, a new and unusual variable is available for them to consider: what a given punishment will cost the State of Missouri”. According to the article “legal experts say no other state systematically provides such information to judges, a practice put into effect here last month by the state’s sentencing advisory commission, an appointed board that offers guidance on criminal sentencing.”

Smart Sentenciing Volume 2 Number 5 August 17, 2010 A Bulletin of the Missouri Sentencing Commission includes a discussion of cost of sentencing as a variable when determining sentences. According to the Bulletin the Missouri Sentencing Commission has added data about the risk of being reincarcerated and the costs of sentences to its online application as a variable to enhance the availability of objective inform

I found it somwhat surprising that “….no other state systematically provides such information to judges”. On alternative for those interested in pursuing this subjct further would be to start by following a search I conducted on the National Center for State Courts website using the terms cost and incarceration.

Justice John Paul Stevens’ career offers many lessons for those interested in learning about the attributes of a good judge, maintains an editorial in the July-August issue of Judicature, the journal of the American Judicature Society. As the editorial explains, Justice Stevens is someone who sets high personal standards, demanding much of himself. He personifies traits such as candor, civility, integrity, courtesy, and responsibility. In short, he is the embodiment of what has come to be known as professionalism.

The editorial also notes that he is characterized by virtually everybody as open-minded, and a good listener, as genial and humorous, as warm and welcoming and kind, as gentle and possessing a generousness of spirit. He is a modest, humble, and unpretentious person,

notwithstanding all that he has accomplished in life, and a man possessing empathy for those who are less fortunate. Former clerks all portray him as a wonderful teacher and role model.

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