Judicial independence

  • August 4, 2011

    by Jonathan Arogeti

    Efforts by members of the Obama administration are restitching the fabric of the Civil Rights Division of the U.S. Department of Justice, largely frayed under the George W. Bush administration, according to a new article in the ABA Human Rights magazine by William Yeomans. And Yeomans should know the history of the Division. He served in multiple capacities there, from trial lawyer to acting assistant attorney general between 1981 and 2005, and until he left the Department of Justice in that year, had spent his entire career in the Department.

    The “bipartisan consensus in support of enforcement of core civil rights protections” enjoyed by the Division since its inception ensured equal voting rights, defeated employment discrimination, and integrated public schools. That consensus “proved inadequate during the Presidency of George W. Bush, as enforcement activity diminished sharply and partisan considerations affected law enforcement and personnel decision,” Yeomans writes.

    Yeomans maintains that while enjoying the benefits of a Republican Congress, the Bush administration filed zero cases pertaining to voter discrimination of African-Americans. With the prospect of a Democratic Congress following the landslide 2006 midterm election, the administration finally exercised this particular section of the Voting Rights Act. Instead of protecting this country’s minorities, however, the Division alleged African-American discrimination against white voters.

  • August 3, 2011

    by Nicole Flatow

    The Senate left town yesterday, heading into recess several days ahead of schedule. In its final hour, the Senate confirmed by unanimous consent four of the 24 judicial nominees that were ready for a Senate vote, and scheduled a vote on a fifth nominee for September.

    But as ACS Executive Director Caroline Fredrickson pointed out in a statement after the vote, 19 other candidates were left behind “whose nominations have been fully vetted and could have been voted on immediately.”

    “This current pace of confirming judicial nominees is far from adequate to the job,” Fredrickson said in her statement. “While the Senate is on break during the month of August, matters involving Americans’ safety, freedom, and livelihoods will continue to be delayed. And in some of the most overburdened districts, our judges may be forced to rush through burgeoning criminal dockets without taking crucial time to consider the arguments before them.”

    Most of the 19 nominees that were left behind were approved by the Senate Judiciary Committee with absolutely no recorded opposition from members of either party. Earlier this week, ABA President Stephen Zach called for the Senate to confirm all 20 unopposed nominees before the recess. And Senate Judiciary Committee Chairman Patrick Leahy pointed out that all 24 nominees could be disposed of in less than an hour.

  • June 1, 2011

    Have you ever thought about becoming a judge? Even most lawyers and law students don’t know much about how to approach the process, the National Asian Pacific American Bar Association’s Tina Matsuoka pointed out during an event on the topic yesterday.

    ACS and seven other legal groups have launched a publication, “The Path to the Federal Bench,” intended to help demystify the process and encourage people from diverse backgrounds to pursue federal judgeships. The booklet includes tips on everything from assessing your candidacy to navigating the increasingly difficult nomination and confirmation process, and features the stories of several judges.

    This coalition of groups has already held a number of panel discussions around the country about the process of pursuing judgeships, and video of some of those events, as well as a short one-on-one interview with U.S. Court of Appeals for the Fourth Circuit Judge Andre M. Davis, is available at a new ACS web page focused on the path to the bench.

    “There’s been a very poor job of reaching out to people at the beginning of their careers,” ACS Executive Director Caroline Fredrickson explained during a press briefing yesterday, expressing hope that this effort will add much-needed diversity to our courts.

    The groups releasing this publication include ACS, the Hispanic National Bar Association, Justice at Stake, the National Asian Pacific American Bar Association, the National Association of Women Judges, the National Bar Association, the National Congress of American Indians and the National LGBT Bar Association.

    Read the new publication here, and learn more about the process of becoming a judge here. To learn more about now-pending judicial nominations and the judicial vacancy crisis on our federal courts, visit JudicialNominations.org.

  • April 18, 2011

    In light of increasingly “ugly” and “expensive” judicial elections such as the recent Wisconsin Supreme Court justice race, states should be permitted to impose more limits on judicial campaign spending than they do on other types elections, write University of California, Irvine law school dean Erwin Chemerinsky and Hofstra law professor James J. Sample in The New York Times.

    “More than 7 in 10 Americans believe campaign cash influences judicial decisions. Nearly half of state court judges agree. Never before has there been so much cash in the courts,” the op-ed explains.

    Chemerinsky and Sample urge advocates for abolishing judicial elections to “come to terms” with the reality that “judicial elections are here to stay,” and instead focus their energy on “incremental changes” that will reduce the influence of money on judges. (A New York Times editorial published last week urged the use of a merit panel rather than election to select Wisconsin’s judges.)

    They explain that while states are permitted to impose limits on direct contributions by persons to candidates, states are not permitted to set restrictions on outside spending. Such indirect spending to candidates is ever-increasing: In 2008 for the first time, spending by non-candidate groups nationally exceeded spending by candidates on the ballot.

    “In the legislative and executive offices, it is accepted that special-interest lobbying and campaign spending can influence votes; but that is anathema to our most basic notions of fair judging,” they write. “Thus, the Supreme Court should hold that the compelling interest in ensuring impartial judges is sufficient to permit restrictions on campaign spending that would be unconstitutional for nonjudicial elections.”

    Read the full article here. For more on judicial selection, see an ACSblog video interview with Justice at Stake Executive Director Bert Brandenburg on Caperton v. Massey, a 2009 Supreme Court decision on judicial conflict of interest referenced in the op-ed.

  • February 28, 2011
    Guest Post

    By William Yeomans, a Fellow in Law and Government at American University Washington College of Law.
    Last week, 107 law professors from 76 law schools joined in a letter to the Chairs and Ranking Members of the Senate and House Judiciary Committees calling on Congress to take up two issues central to the integrity of the Supreme Court: the lack of a mandatory code of ethics governing the justices and the lack of a transparent and enforceable process governing recusal. The letter urged its recipients to convene hearings in the Senate and House Judiciary Committees and to advance appropriate legislation. The letter noted that recent media reports have heightened the visibility of these issues, but emphasized that the letter is a nonpartisan call for reform.

    The letter starts from the foundation that Supreme Court justices, unlike all other federal judges, are not subject to a mandatory and enforceable code of judicial conduct. Yet, Canon 1 of the Code of Conduct for United States Judges states that "[a]n independent and honorable judiciary is indispensable to justice in our society" and adherence to high standards of conduct is essential in maintaining such a judiciary. This admonition applies with added force to justices, whose decisions have the greatest impact. While justices may look to the Code of Conduct for guidance, they are not bound by its provisions. The letter, therefore, urges Congress to apply the Code of Conduct for U.S. Judges to Supreme Court justices and to establish procedures for enforcing the Code.

    Similarly, justices are permitted to determine whether to recuse themselves from matters before the Court without review by an independent entity and without explaining their decisions. The letter recalls the fundamental principle identified by Lord Coke in the Seventeenth Century that "no man may be a judge in his own case." Yet, that is exactly what we tolerate when a Supreme Court justice is faced with a recusal issue. Because there is no requirement that justices explain their reasoning in recusal decisions, the bar and the public often are left in the dark. We understand the importance of judicial opinions to the development, legitimacy, and integrity of the law in other matters. Providing transparency regarding recusal decisions is at least as important, since they cut to the core of the Court's integrity. The letter, therefore, urges Congress to require written opinions when justices decline to recuse themselves and to establish a procedure -- or require the Court to establish one -- that provides for independent review of recusal decisions.

    Recognizing that there are difficult choices to be made, the letter stops short of endorsing specific solutions to two important issues. The first is how to structure a mechanism for enforcement of the Code of Conduct regarding justices. While the Judicial Conference oversees this process for other federal judges, it may be necessary to involve justices in the new process or to consider creation of a new body.