“For Sale -Going Fast”: An Independent Judiciary — Buy A Judge Today
According to the New York Times the retention election of three Tennessee judges “has been preceded by an expensive and acrimonious campaign bolstered by organizations like Americans for Prosperity, which receives financial support from the billionaires Charles G. and David Koch and other conservative groups”. Those supporting retention of the judges have been compelled to raise “more than $1 million” to combat the effort to defeat them. Could there be anything more unseemly or contrary to the purposes for which the judiciary was established?
I do not doubt that there are persons out there (and even corporations now) who contribute to judicial campaigns for the purpose of electing or retaining judges who are fair, competent and impartial and who will carry out the applicable laws and enforce the state and federal constitutions. Then there are the other 99 percent who wish to influence particular matters or judicial philosophy in general. Judges are not and were never intended to be elected representatives. I cringe at the constant contention that judges should be held “accountable”. They are accountable to the laws and the Constitution. They should not be subject to the whim of those who find certain past rulings objectionable or seek to influence future ones by buying elections. Nothing could weaken the independence of the judiciary more than having judges removed or not re-elected because of prior decisions that they have made.
The whole concept of judicial independence is that judges should feel to rule as they deem correct without fear of retaliation. Nor should judges undertake the position with some feeling that they are indebted to those who have financed their election. Per the Times: “The Republican State Leadership Committee, a national group, plans to spend at least $5 million on judicial races this year.” Why? Because they want to influence future judicial decisions.
Let’s face it — this movement is exclusively a conservative one. Conservatives own it. Judges are to be ousted for “liberal” rulings like upholding same-sex marriage, ordering new trials in death penalty cases or generally ruling in favor of persons charged with crimes — stuff like upholding the Constitution. Judicial elections are degrading. Voters do not know whether or not the candidates are qualified. And finally money has further corrupted the process. I have said on prior occasions: Can you imagine a lawyer or a litigant walking up to a judge in the middle of a trial and handing the judge a check for his or her campaign? Would it make any difference if the check was delivered a week before? And isn’t it even worse now that the big boys are coming in with even bigger checks?
We should end judicial elections entirely, but until we do, we must find a way to limit the corrupting influence of money in the election process and stop putting the judiciary up for sale.
By: Judge H. Lee Sarokin, The Huffington Post Blog, August 7, 2014
“So Much For Checks And Balances”: Welcome To Tennessee, Where Lawmakers Are Trying To Kneecap Judges
In state houses around the country, January often brings the emergence of many of the year’s most dubious legislative proposals. January is the month of patently unconstitutional bans on “sharia law.” It is the month of promoting the unlawful practice of jury nullification. But mostly it’s the month for legislators to attack the independence of the judiciary.
Again this year, all over the country, state lawmakers have introduced bills to curb their cousins in the judicial branch. In Oklahoma, lawmakers want to remove from the Code of Judicial Conduct references to judicial independence. In Kansas and New York, state lawmakers want to force trial judges to render their decisions within a certain time or be forced out of office. But perhaps the most egregious of this year’s crop of ill-advised measures comes from Tennessee, where lawmakers have introduced a bill that combines many of these bad measures from other states into one big ball of scorn for the state’s judiciary.
SB 2322, as the Tennessee bill is known, seeks to replace the administrative office of the state courts with the treasurer’s office, which is part of the executive branch of state government. The state Supreme Court would no longer be able to “direct” the work of the court administrator but rather “urge” executive branch officials to take certain action. The bill would shut down the state’s judicial disciplinary board, now under the auspices of the judicial branch, and replace it with a new review board that would answer, again, to the state treasurer. That board would be made up of political appointees from the executive and legislative branches of government. Judges would be prohibited from serving on a board evaluating the work of the judiciary.
If that were all SB 2322 did, it would be bad enough. Each of the above components of the pending legislation violates separation of powers principles and constitutes impermissible encroachment upon basic judicial functions. It is axiomatic that judges should have the power and authority to administer their own affairs, as they do in every other jurisdiction in the nation, and should not be precluded from evaluating the disciplinary issues that arise within their profession. You don’t need to be a political scientist to understand the pressure the executive branch would be able to wield over Tennessee’s judiciary if the legislature were to enact this bill.
But there is more. SB 2322 seeks to dramatically alter the nature of death penalty procedures in a way that undermines core judicial functions. Judges would not be able to extend filing deadlines in capital cases — even if such extensions were justified and necessary to ensure the constitutional rights of defendants. And judges also would be forced to meet their own deadlines for resolving capital cases, even if they were not ready to do so. Meanwhile, lawyers representing indigent capital defendants would be required to reimburse the state if they were later found to have rendered “ineffective assistance of counsel,” a requirement that would make it materially harder for indigent defendants in the state to get a court-appointed lawyer willing to take the case.
These proposed measures, too, are patently unconstitutional incursions into the judiciary’s work. But they also happen to be bad ideas beyond their constitutional dimensions. Forcing judges to rush their decisions won’t make those decisions more accurate or justifiable — and that won’t ultimately save Tennessee taxpayers from the costs of appellate work. And precluding capital defendants from seeking more time to file their court papers — so they can better evaluate evidence, for example — won’t help root out instances of false confessions, or flawed eyewitness testimony, or prosecutorial misconduct.
Experts who study these sorts of bills are, quite naturally, both alarmed and disappointed. “There’s a reason no other state in the country has such a system, Bert Brandenburg, the executive director of Justice at Stake, told me Monday. “It denies the courts the most basic of administrative functions and seeks to make our courts of law answer to politicians instead of the law.”
Tennessee’s judicial branch is not perfect. No branch of government anywhere is perfect. But it is reckless to think that the best solution to perceived problems within this state’s judiciary is to turn control of it over to the executive branch. There is a reason that our systems of government have three branches that are asked to provide checks and balances upon each other. What SB 2322 would do is upset that balance, and preclude those checks, in a way that surely would end up harming the people of Tennessee.
By: Andrew Cohen, The Week, January 29, 2014
“Influence Game”: NRA Putting Its Stamp On Another Branch Of Government
The National Rifle Association has enjoyed high-profile success over the years in shaping gun-rights legislation in Congress and statehouses, in part by campaigning to defeat lawmakers who defied the group.
Now, the NRA has added a lesser-known strategy to protect its interests: opposing President Barack Obama’s judicial nominees whom it sees as likely to enforce gun-control laws. In some cases, the group’s opposition has kept jobs on federal benches unfilled.
Still in its early stages, the effort is a safety net to ensure that federal courthouses are stocked with judges who are friendly to gun rights, should gun restrictions somehow get through the group’s first line of defense on Capitol Hill. The NRA also weighs in on state judicial elections and appointments, another fail-safe if the massacre of young children at a Newtown, Conn., elementary school leads to tighter gun-control measures.
A case study in the group’s approach across the country can be found in its opposition to the nominations of the two most recent Supreme Court justices.
The NRA opposed both Sonia Sotomayor and Elena Kagan and warned its allies in Congress that their votes to confirm each would be held against them.
In a letter to lawmakers, the NRA wrote: “In testimony before the Senate Judiciary Committee, (Kagan) refused to declare support for the Second Amendment, saying only that the matter was ‘settled law.’ This was eerily similar to the scripted testimony of Justice Sonia Sotomayor last year, prior to her confirmation to the court. It has become obvious that ‘settled law’ is the scripted code of an anti-gun nominee’s confirmation effort.”
It added, “The NRA is not fooled.”
The group had limited evidence to back up its claims that the two were opposed to gun rights. It pointed to a one-paragraph memo Kagan wrote in 1987 to Justice Thurgood Marshall that suggested she was not sympathetic to gun owners, and to her time as a lawyer in the Clinton administration as it sought to put tighter gun controls in place. For Sotomayor, critics cited a ruling that upheld New York’s ban on nunchucks, a martial arts weapon that has nothing to do with firearms.
Even some pro-gun-rights lawmakers bristled at the NRA inserting itself into judicial confirmation battles.
“I am a bit concerned that the NRA weighed in and said they were going to score this. I don’t think that was appropriate,” Republican Sen. Lisa Murkowski of Alaska said at the time. “A vote on a Supreme Court justice, in my mind, should be free from those political interest groups that are going to pressure you.”
But, like most Republicans, she still voted against confirming both nominees, likely for reasons beyond the gun issue.
Only seven GOP senators voted for Sotomayor in 2009 and, a year later, only five Republicans voted for Kagan.
Among those who supported both was Sen. Richard Lugar, a six-term Indiana Republican who lost his seat last year in a primary.
The NRA exacted its revenge in that race, spending $200,000 against him in order to help GOP challenger Richard Mourdock.
“Dick Lugar has changed. He’s become the only Republican candidate in Indiana with an F rating from the NRA,” the group said in one TV ad. The group also warned allies that Lugar voted to confirm “both of Barack Obama’s anti-gun nominees to the U.S. Supreme Court.”
Last spring, the group opposed the nomination of Elissa Cadish to the federal bench in Nevada and worked with Sen. Dean Heller of Nevada to block it.
In 2008, while running for a district court position in Nevada, Cadish replied on an election-year survey that “I do not believe that there is this constitutional right” to guns. She added, however, “Of course, I will enforce the laws as they exist as a judge.”
Cadish completed the Citizens for Responsible Government questionnaire before the Supreme Court ruled in 2008 that the Second Amendment protected a citizen’s right to have firearms in the District of Columbia and before a 2010 case that gave the same rights to citizens who live in the states.
Four years later, when Obama nominated her to a federal bench, she faced questions about those views and sought to clarify her position in a letter to her state’s other senator, Harry Reid.
“I want to assure you that I was not giving my personal opinion on this question,” Cadish said. “Rather, this response was based on my understanding of the state of federal law at the time.”
The NRA questioned the sincerity of Cadish’s statement.
“While she has more recently tried to backtrack from that statement, her ‘new’ position is of little comfort to gun owners,” NRA executive director Chris Cox wrote to Heller in April.
In the months that followed, the NRA and its affiliated groups spent $98,467 to help Heller win election, including a television ad promising Heller would “oppose any anti-gun nominee to the Supreme Court.”
“This election’s not about the next four years. It’s about the next 40 years. So vote like your freedom depends on it. Because it does,” Cox told audiences in that ad.
Similarly, the NRA has helped block Caitlin Halligan’s rise from the Manhattan district attorney’s office to the U.S. Court of Appeals for the District of Columbia Circuit, a launching pad for several Supreme Court justices. The group pointed to her work on New York’s 2001 lawsuit against gun makers and opposition to a 2005 federal law that shielded firearm companies from liability for crimes committed with their wares.
“Given Ms. Halligan’s clear opposition to a major federal law that was essential to protecting law-abiding Americans’ right to keep and bear arms, as well as an important industry that equips our military and law enforcement personnel, we must respectfully oppose her confirmation,” Cox wrote the lawmakers in 2011.
That appeals court seat has remained vacant since 2005, when President George W. Bush nominated and the Senate confirmed John Roberts as chief justice on the Supreme Court.
Last Thursday, Obama renominated both Cadish and Halligan and urged the Senate to vote.
“I am renominating 33 highly qualified candidates for the federal bench, including many who could have and should have been confirmed before the Senate adjourned,” Obama said.
Yet there was no signal the NRA would drop its opposition.
The group’s deep pockets help bolster allies and punish lawmakers who buck them, on judges or legislation. The group spent at least $24 million in the 2012 elections — $16.8 million through its political action committee and nearly $7.5 million through its affiliated Institute for Legislative Action. Separately, the NRA spent some $4.4 million through July 1 to lobby Congress.
In one case, the group spent about $100,000 — a tremendous sum for a state legislative race — to mount a primary challenge against a Republican Tennessee lawmaker, Debra Maggart, because she wouldn’t toe the NRA’s line in Nashville.
As the NRA works to put its stamp on another branch of government, its influence could be even more lasting — federal judges are appointed for life and aren’t subject to voters in election years.
By: Philip Elliott, The Associated Press, January 9, 2012
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