Judicial independence

  • June 1, 2012
    Guest Post

    By Michigan Supreme Court Justice Marilyn Kelly and retired Sixth Circuit Judge James L. Ryan. Justice Kelly will participate in a panel on judicial campaigns and public confidence in the courts during the American Constitution Society’s National Convention in June.

    Since the turn of the century, Michigan has gained a reputation for Supreme Court election campaigns that are among the most expensive, least transparent and most partisan in the country. Our campaign ads have been among the most offensive. That is why we convened a bipartisan task force of prominent Michiganders to study how Supreme Court justices are selected across the nation and recommended improvements to Michigan’s Supreme Court selection process.

    The 2010 candidates for the Michigan Supreme Court raised a total of $2.6 million. The political parties and state-based interest groups reported spending another $2.5 million. But data collected from the public files of state television broadcasters and cable systems showed that an additional $6.3 million was spent by the political parties and interest groups. Michigan law does not require this candidate-focused “issue” advertising to be reported in the state campaign finance disclosure system.

    This was not the first time that the majority of money spent in a Michigan Supreme Court campaign was undisclosed to the public. For the elections from 2000 through 2010, $21.5 million was reported and $20.8 million was paid for undisclosed television advertising.

  • April 24, 2012
    Guest Post

    By Adam Winkler, a constitutional law professor at UCLA School of Law

    The age of judicial activism - err, I mean "judicial engagement" - is upon us. Having realized that they don't always win with voters, leading conservatives are abandoning their traditional emphasis on judicial restraint and respect for the decisions of democratically elected officials. After years of berating liberal judges for overturning laws in the name of controversial constitutional principles, conservatives are now embracing the notion of an active, "engaged" judiciary. Only they want one that aggressively protects those rights conservatives prefer: property rights, rights of religious expression, the liberty of contract, the right not to buy broccoli - regardless of decades of established case law.

    For evidence of this trend, one need not look further than startling concurring opinion by D.C. Circuit Judge Janice Rogers Brown in Hettinga v. United States. Brown, who is often mentioned as a potential Supreme Court nominee in a Republican administration, used her opinion to audition for a leadership role in this new movement. The time has come, she wrote, to end the pernicious practice of allowing legislatures to regulate the economy. "America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s." The proof? The "Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to adopt whatever economic policy may reasonably be deemed to promote the public welfare."

    Besides Brown’s Bizarro world premises in which things like consumer protection laws harm consumers, her ode to the Lochner era reminds us of the importance of judicial appointments. For decades, Republican presidents have used the lower federal courts as a farm team for the Supreme Court, smartly filling positions with potential stars to see how they perform. This is a smart strategy, though one Democrats haven’t followed. Instead, Democratic presidents have tended to name competent, diverse people who aren’t likely to be controversial. But in the current political climate, even these clear consensus nominees are held up in the Senate, leaving the federal courts with a critical number of vacancies and a troubling imbalance in our courts. To counter the newly “engaged” judicial conservatives like Brown, legal liberals need to be fighting for judges, particularly those judges with the intellectual fortitude to go toe-to-toe with the leading lights of conservative constitutionalism. Respect for our Constitution and settled precedent demands nothing less.

  • April 11, 2012

    by Nicole Flatow

    When Fifth Circuit Judge Jerry Smith asked the Department of Justice for a three-page single-spaced memo defending its support for the long-established principle of judicial review, Attorney General Eric Holder did what was asked and responded.

    He refrained from pointing out, as Jeffrey Toobin did, that Smith’s behavior during the hearing on a challenge to the Affordable Care Act was a “disgrace,” or as Orin Kerr did, that it was “highly inappropriate” for Smith to ask the DOJ to defend political comments by President Obama about the Supreme Court’s review of the health care law totally outside of the scope of the record in the case.

    But in his dreams [and in The American Prospect], constitutional law professor Garrett Epps envisions a different kind of letter Holder might have sent, in which he refuses to respond on the basis that the Fifth Circuit has absolutely no jurisdiction in this case over the President of the United States:

    Dear Judge Smith,

    … This letter is a truthful response to this court's order and the issues of jurisdiction and judicial ethics it raised. Because it is truthful, it will never be filed with any court. Nonetheless, I will take this imaginary opportunity to state that the proper response to your order is a regretful refusal to comply on the grounds that it was made in excess of your jurisdiction, that it raises serious issues about your fitness to serve the United States in a position of honor and trust, and that it tends to bring discredit on the federal judiciary.

    Epps goes on to explain that the very same decision that established judicial review, Marbury v. Madison, also established that “federal courts are courts of limited jurisdiction” and any attempt to go outside that jurisdiction deprives them of their power.

    While presidents are political actors who have criticized the courts since Thomas Jefferson, judges are expected not to act as naked partisans, he explains.

    He continues:

  • December 19, 2011

    by Jeremy Leaming

    Newt Gingrich’s outlandish commentary on so-called radical judges is garnering, rightfully so, plenty of attention, but as American University Law Professor Jamie Raskin writes in this piece for The Huffington Post, there are other Republican presidential candidates, whose positions on the judiciary are just as worrisome.

    Raskin, also a Maryland State senator, noted that Gingrich’s “outbursts against judicial independence” have raised the hackles of a number of prominent conservatives. And one can see why he says. During the last GOP debate, Gingrich’s comments about the judicial branch, Raskin says, “were divorced from reality and indeed comical for a self-proclaimed ‘historian.’ He called the courts ‘grotesquely dictatorial, far too powerful, and … arrogant in their misreading of the American people.’”

    In particular Gingrich claimed he was seriously peeved over the federal appeals court opinion that found constitutionally suspect the practice of reciting in public schools the Pledge of Allegiance, which was made religious during the Eisenhower administration with the assertion of the words “under God.” That decision, as Raskin notes, was later reversed by the U.S. Supreme Court. Nonetheless, Gingrich bandied about that federal appeals court opinion, along with a few others, to blast the federal courts and claim that if he were president he’d take action to reign judges in. (On a CBS’s “Face the Nation,” Gingrich said there is “no reason the American people need to tolerate a judge that is out of touch with American culture,” and that if he were president he’d order federal Marshalls to arrest such judges.)

    But Raskin warns that voters who care about an independent judiciary should not be lulled into believing that Mitt Romney is any better on the matter.  

    Raskin points out that “Romney’s new constitutional advisor is none other than former Judge Robert Bork, an astounding selection to head up the Governor’s legal and constitutional affairs advisory team. Bork is a fiercely pro-corporate, anti-voting rights, anti-choice, anti-feminist, pro-censorship, anti-gay, anti-free speech, anti-separation of church and state, and evolution-denying ideologue who has described the 9th Amendment to the Constitution defending the rights of the people as ‘an inkblot’ and called for allowing Supreme Court constitutional decisions to be overturned by majority vote in Congress as well as a constitutional amendment to deny gay people the right to marry.”

  • December 16, 2011
    The Senate confirmed Alaska Supreme Court Justice Morgan Christen to the U.S. Court of Appeals for the Ninth Circuit on Thursday by a vote of 95-3, three months after she was approved by the Senate Judiciary Committee. Christen will fill one of four vacancies on the Ninth Circuit considered judicial emergencies. “At a time when judges on that circuit are being called upon to handle double the caseload of the other Federal circuit courts, the Senate should have expedited the consideration of Justice Christen’s nomination, not needlessly slowed it down,” said Senate Judiciary Chairman Patrick Leahy (D-Vt.) before the vote. “The Chief Judge of the Ninth Circuit, Judge Alex Kozinski, a Reagan appointee, along with the members of the Judicial Council of the Ninth Circuit, have written to the Senate emphasizing the Ninth Circuit’s ‘desperate need for judges,’ urging the Senate to ‘act on judicial nominees without delay,’ and concluding that
    There are 22 other nominees awaiting an up-or-down vote before the Senate adjourns later this month.
    The Senate Judiciary Committee voted out the nomination of Brian C. Wimes to the U.S. District Court for the Eastern and Western Districts of Missouri by a voice vote. It also held a nomination hearing for Paul J. Watford, another of the president’s nominees to the U.S. Court of Appeals for the Ninth Circuit.
    In the wake of the filibusters of D.C. Circuit nominee Caitlin Halligan and Consumer Financial Protection Bureau nominee Richard Cordray, the nonpartisan group "No Labels," run by former Rep. Tom Davis (R-Va.) and Bill Galston, a former senior adviser to President Clinton, is calling for a plan to end gridlock in Congress that includes filibuster reform. In an op-ed in Politico, Davis suggests up-or-down votes on all presidential nominees within 90 days. In their recent ACS Issue Brief, law professors Richard Painter and Michael Gerhardt also call for time limits on judicial nominations as one of several proposals for reforming the process.
    Continuing criticism of the Senate’s recent filibusters has come from ACS Board Member Linda Greenhouse in The New York Times, American Enterprise Institute Resident Scholar Norman Ornstein in Roll Call and numerous editorial boards.