Judicial independence

  • April 10, 2017

    by Caroline Fredrickson

    Soon after President Donald Trump nominated Judge Neil Gorsuch to the Supreme Court, the Judicial Crisis Network (JCN)—a conservative secret-money group that spends millions of dollars on ads attacking judges—promised to spend up to $10 million in support of his nomination. Representing a major attack on the fairness and impartiality of our judicial branch, this same group, among many other organizations, has been increasingly involved with big-money efforts to help elect or attack their favored state supreme court judges—all behind a curtain of secrecy.

    When asked directly by Sen. Whitehouse about why these groups are so interested in supporting his nomination, Gorsuch responded, “You’d have to ask them.” For a Supreme Court candidate, this betrays an inexcusable lack of understanding and concern for the menacing role that secret money has played in this Supreme Court nomination process and in many of our state judicial elections. “We don’t know because it is dark money,” Sen. Whitehouse countered a frustrated Judge Gorsuch about the secret money group, “I can’t [ask them]. I don’t know who they are. It’s just a front group.”

    The $10 million was in addition to the $7 million that JCN already spent in its effort to distort the record of Chief Judge Merrick Garland, Obama’s Supreme Court nominee who Republicans and JCN itself previously praised.

    At the state level, the group recently spent big to help persuade Arkansas voters to reject judicial candidates who JCN argued would favor injured individuals over corporate defendants. JCN spent far more money than any of the candidates. One of its ads criticized the Arkansas Chief Justice for a unanimous ruling to strike down a voter ID law, which JCN claimed could lead to “illegal immigrants voting.” Arkansas Business said the JCN ads should be “categorized as lies.” And in 2012, JCN ran a revolting last-minute ad attacking a Michigan Supreme Court candidate, exploiting the tragic death of a U.S. soldier to lie about the judicial candidate’s record. A recent report from the Michigan Campaign Finance Network found that $3.4 million was spent on the 2016 supreme court race there, with 50 percent of the money from secret sources.

  • April 5, 2017
    Guest Post

    by Nat Stern, John W. & Ashley E. Frost Professor, Florida State University College of Law

    The ability of politicians to utter falsehoods with legal impunity is evident today to perhaps an unprecedented degree. Less appreciated is that the overwhelming majority of judges in America qualify as politicians in the basic sense that they are chosen through some form of popular election. In the case of candidates for judicial office, however, nearly half of states codes contain a “misrepresent clause” barring deliberately false factual statements by judicial candidates.

    The basis for this ban is understandable and even admirable. In contrast to legislators and elected executive officers, judges are expected to serve as detached and impartial arbiters of the law. Dishonest campaign tactics may then be viewed as impairing the administration of justice, tarnishing the public image of the judiciary or even revealing a disqualifying character trait. Nevertheless, the misrepresent clause—as opposed to generally applicable bans on certain kinds of dishonesty like defamation and fraud—probably violates the First Amendment. This conclusion derives mainly from the confluence of three Supreme Court doctrines: stringent protection of political speech, application of this doctrine to restrictions on judicial campaign speech and refusal to regard false expression as categorically unprotected.

    It is a commonplace that unhindered political speech is essential to self-government and therefore lies at the heart of the First Amendment. Thus, the Supreme Court has repeatedly affirmed the privileged place of political expression in the hierarchy of First Amendment freedoms. Nor has the Court left any doubt that political campaign speech falls squarely within this protection. Accordingly, the Court has subjected restrictions on political expression to rigorous scrutiny.

  • March 15, 2017
    Guest Post

    by Caroline Fredrickson

    This week marks a national initiative to highlight transparency, accountability and open government. The timing could not be better.

    Sunshine Week, March 12-18, falls the week before confirmation hearings begin for Trump’s Supreme Court pick.

    National discourse has centered on the president’s commitment to core constitutional values and his understanding of the importance of rule of law. Indeed, leading constitutional scholars have already raised red flags on numerous issues and lawsuits have been filed.

    Events of the last few months have increased the gravity of the decision about who should fill the ninth seat on the Supreme Court. The Supreme Court is often the last defense for our Constitution and it is imperative that any nominee not be beholden to any one person, let alone the president of the United States.

    Throughout his campaign and since his election, the president repeatedly emphasized that his Supreme Court nominee would be the most conservative jurist he could find, and he made sure his nominee passed a series of litmus tests, including on reproductive rights and gun safety laws. This compromises the independence of the judiciary at a time when we especially need to rely on the courts to make their own assessment of the constitutionality of legislative and executive actions. Decisions from federal judges across the country impact the lives of all of us, from how we are treated in the workplace, how the law regards women, racial minorities and those with disabilities, among others, consumer protections, the safety of our environment, our right to vote and our immigration system – just to name a few issues.

  • February 22, 2017
    Guest Post

    *This piece originally appeared on The Hill

    by Sen. Patrick Leahy

    The late Chief Justice William Rehnquist once described the independent judiciary as “one of the crown jewels of our system of government.” That is because the judiciary, insulated by life tenure from elections, can provide a necessary check on the other two branches of government and uphold the constitutional rights of all Americans.

    Now the independent federal judiciary is under attack by a president who seems intent on precipitating a constitutional crisis. President Trump’s attacks on a sitting federal judge reveal the misguided notion that judges owe some allegiance to the president who appointed them or to a political party. Yet these attacks also underscore exactly why the independent judiciary is such a crucial part of our system of government.

    Judges do not consider tweets, they consider the facts and the law. And based on the facts in front of them, federal judges have found President Trump’s immigration order is very likely discriminatory and unconstitutional. As even members of the judiciary have noted, there is nothing wrong with criticizing the rulings of any court, including the Supreme Court. But it is another thing entirely to attack a presidentially appointed, Senate-confirmed judge’s legitimacy, or to attack another based on his heritage. Such attacks reveal a profound disregard for constitutional checks and balances, which preserve the rights of all Americans.

    Now the Senate is asked to consider the very first judicial nominee appointed by President Trump, who in his first few weeks showed an outright hostility toward the judiciary. I had hoped that President Trump would work in a bipartisan way to pick a mainstream nominee like Merrick Garland and bring the country together. Instead, he promised to pick a nominee who would overturn Roe v. Wade and deprive women of the right to make their own health care choices and then outsourced his selection process to far-right interest groups. These groups receive significant funding from the Koch brothers and other conservative donors. Americans deserve a justice who will apply the law, not the ideology of a few wealthy mega-donors.

  • February 7, 2017
    Guest Post

    by Adam Shah. Shah worked for D.C. nonprofits on issues related to the Supreme Court nominations of John Roberts, Harriet Miers, Samuel Alito, Sonia Sotomayor, and Elena Kagan.

    Over the weekend, President Trump went on a 2-day-long Twitter rampage against a Seattle-based federal judge who halted his executive order banning immigrants from seven Muslim-majority nations. Commentators have decried Trump for singling out a lone federal judge for attack, calling it an attack on the independence of the federal judiciary. This is true, but our federal judges are strong, life-tenured and can withstand harsh criticism without losing their commitment to making decisions based on law, not political considerations. 

    What should cause us worry, however, is the implications of Trump's attacks for his judicial nominees, including his Supreme Court nominee, Judge Neil Gorsuch. If Trump is so easily angered by a judicial ruling that blocks one of his orders, what is likely the most important criterion Trump has for his judicial nominees? Loyalty. 

    This, of course, is the worst litmus test a president could have. Presidents may not like it, but they know that their own nominees will rule against their actions at times; Supreme Court Justices Elena Kagan and Sonia Sotomayor did it to President Obama. Having federal judges who will stand up to even the president that appointed them is one of the hallmarks of our judicial system, and that independence would be destroyed if a president picked nominees based on their unwillingness to do that.