Recently, Montana’s chief federal judge admitted to forwarding an email from his court email account that included a racist “joke” involving bestiality and President Barack Obama's mother.  Judge Richard Cebull has since issued a formal apology to President Obama and has asked for a formal judicial review of his actions.  Earlier this week, two members of the House Judiciary called for a hearing to examine the judge’s conduct.  Representatives John Conyers of Michigan and Steve Cohen of Tennessee told Committee Chairman Lamar Smith in their letter that the committee has a duty to investigate the potential consequences of Judge Richard Cebull’s email.   “At a minimum, forwarding this email illustrates poor judgment and of conduct that was unbecoming of a federal judge,” they wrote.  “More troubling, however, is the possibility that public disclosure of the judge’s conduct may not only undermine the public’s view of his personal credibility and impartiality as a judge, but also the integrity of the ... federal judiciary.”

More than 70 percent of President Obama's confirmed judicial nominees during his first two years were "non-traditional," or nominees who were not white males.  That far exceeds the percentages in the two-term administrations of Bill Clinton (48.1 %) and George W. Bush (32.9 %), according to Sheldon Goldman, author of the authoritative book Picking Federal Judges.  "It is an absolutely remarkable diversity achievement," said Goldman, a political science professor at the University of Massachusetts at Amherst.  Are Judge Cebull’s actions an isolated incident or an indication that we still have a long way to go with regard to diversity efforts in the legal profession?

During his presidential campaign, President Obama expressed his desire to diversify the federal judiciary which is primarily comprised of white men.  As a result of his administration’s efforts, we have witnessed the first Hispanic sworn in to serve on the United States Supreme Court, the first openly gay man appointed to a federal district court and the first Chinese, Korean and Vietnamese women judicial nominees.  "Having racial diversity, gender diversity, experiential diversity — all of those things we are mindful of and committed to seeking out when we're looking for the best candidates," Kathryn Ruemmier, the new White House counsel, tells National Public Radio (NPR).  Almost half of the 97 candidates who have won confirmation during Obama's presidency are women and approximately a quarter are African-American. 

According to Ed Whelan, a prominent conservative who used to work in the Justice Department during George W. Bush’s administration, "The Obama administration doesn't have a coherent judicial philosophy so it's not surprising that it's falling back on diversity, which I think it sees among other things as appealing to its various political constituencies."  The notion that judges’ decision-making might be affected by their gender and race or ethnicity is incompatible to those who view "judging" as the objective disposition of cases without regard to judges' personal backgrounds, biases, attitudes, and ideologies.  However, research studies underscore the importance of diversity on the bench.  Is advancing judicial diversity a "coherent judicial policy"?  Should the face of justice be a reflection of all of us?

Despite significant progress for women in the legal profession, there are some differences in the way men and women are expected to behave that may not change until societal norms and expectations change as a whole.  In a recent article in the ABA Journal, Justice Sotomayor provided some thoughts about the differing expectations of male and female judicial candidates  She remarked that she was offended by some of the questioning that took place during her confirmation hearings, especially questions related to her dating history.  Her dating history was a hot topic because Justice Sotomayor has been divorced since 1983 and never remarried.  For a male federal court judge that fact may not matter.  But for a female judge this fact along with who you have dated, how often, and who you choose to bring to public events easily becomes a source of scrutiny. 

It’s a classic double standard that is unfortunate and unfair.  Proposing a ban on personal questions in confirmation hearings and interviews is probably not enough to change things because you can’t stop people from making assumptions about a woman’s professional ability based on her behaviors in her personal life.  Personal opinions, assumptions and expectations are bred into us through society and the media – many on a subconscious level.  Ultimately, societal and cultural views would have to change before women can feel free to act in the same manner as men without the worry that they will risk their professional reputations.  Whether that can happen depends a lot on those with the power to shape the parameters of what is or is not acceptable within their own offices and professions – be that law partners or politicians. 

Many states around the country select judges through a merit selection process.  While the process can vary between states, typically a nominating commission comprised of both attorneys and non-attorneys screen judicial candidates and make a recommendation to the governor, or in some instances the legislature, concerning the judicial candidates.  While no judicial selection system is perfect, merit selection eliminates the need for judicial candidates to initially run for election, which in turn eliminates the need to campaign and fundraise.  At some point merit selection judges may have to for retention, but historically retention elections have drawn less attention and partisanship than contested judicial elections.

Since 1913, the American Judicature Society (“AJS”) has promoted sound merit selection systems throughout the country.  Recently they issued an “action alert” because merit selection systems are under a “sustained and coordinated attack across the country.”  In their action alert, they note that bills are pending in Arizona, Florida, Hawaii, Missouri, Kansas, New York, Oklahoma and Tennessee to significantly modify or eliminate merit selection plans entirely.  A copy of the AJS action alert can be found at: ActionAlert.pdf.  The alert includes links to all of the pending bills in each state which challenge the state’s merit selection process. 

Later this month, DRI’s Judicial Task Force will be publishing a report entitled Without Fear of Favor in 2011, A New Decade of Challenges to Judicial Independence and Accountability, which details the various challenges to judicial independence caused by partisan judicial elections,  As the Task Force notes in that report:

Any good trial attorney knows that in a courtroom, perception becomes reality and that maxim holds true for our legal system.  The public’s perception of the fairness of our courts is a direct correlation to its confidence in the American justice system and its respect for our rule of law.  If the public’s perception of the fairness of our courts is ever lost, immeasurable damage will result to our legal system and the rule of law in our country.

Harsh attack ads and major fundraising efforts that have become the norm in partisan judicial elections are harming the public’s perception of the fairness of our judicial system.  The organized defense bar, long a champion of level playing fields and fair court systems must concern itself with these issues.  If you practice in one of the states where merit selection is under attack, there are certain things that you can do.  Make your views known to your legislators.  As the AJS action alert aptly notes, it is of vital importance to keep money, partisan politics, and the influence of special interests out of the judicial selection process.  Also consider writing an op-ed piece or a letter to the editor defending merit selection in your home state.
Members of the defense bar are in an ideal position to protect the system of justice and the independence of the judiciary.  We must begin to do so before the concept of judicial independence is mortally wounded.

One of the articles featured on DRI Today asks: “Where Have All the Judges Gone?” The article notes that so far this year, federal judges have been leaving the bench at a rate of one per week and that the number of federal judicial vacancies has doubled in the last three years. The article attributes the rise in judicial vacancies to a “host of factors” including Senate Republicans, the White House and “a dysfunctional Senate confirmation system.” While those are factors that might explain delays in filling federal judicial vacancies, the article misses the basic reason why many federal judges are leaving the bench. Put bluntly, it is their compensation. When second and third year associates in some of our country’s largest law firms earn more than many federal judges, it should come as no surprise that more and more of them are leaving the bench and turning to employment in the private sector. 

Alexander Hamilton, in The Federalist No. 79 recognized: “In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.” Federal judges have not received a raise in their base salary in well over a decade and also have been denied cost of living adjustments a number of times since then. Hamilton’s warning appears to be borne out by the spate of recent departures from the federal bench. 

The Framers of our Constitution wanted to ensure the independence of federal judges through the provision of lifetime tenure. However, the Framers’ goal of judicial independence is being frustrated by the failure to provide adequate compensation to federal judges. Chief Justice Roberts in his 2006 Year-End Report on the Federal Judiciary observed that federal judges “accept difficult work, public criticism and even threats to their personal safety,” and while they may be willing to accept less than what could be earned in the private sector, “[t]hey can rightfully expect, however, to be treated more fairly than they have been.” Justice Roberts also warned in his 2006 Report: “If judicial appointment ceases to be the capstone of a distinguished career and instead becomes a stepping stone to a lucrative position in private practice, the Framers’ goal of a truly independent judiciary will be placed in serious jeopardy.” We are seeing Justice Roberts’ warning now being played out before our eyes.

So, what can you do to protect the independence of our federal judges? Write to your elected representatives in Washington, D.C. and advocate pay increases for them. The maintenance of judicial independence at both the state and federal levels requires your support.  DRI, as the Voice of the Defense Bar, recognizes that our members have long been advocates of level playing fields and fairness to all parties in litigation. However, we must now also focus our attention on protecting the independence of our state and federal judges. 

Later this month, DRI will publish a report from its Judicial Task Force entitled: “Without Fear Or Favor In 2011, A New Decade Of Challenges To Judicial Independence And Accountability.” That report discusses a number of challenges to judicial independence, and outlines possible solutions to those issues. The challenges to judicial independence caused by inadequate compensation and a politicized appointment process noted above are two of the issues addressed in that report. However, achieving those solutions require your involvement and support.

ABOUT THE AUTHOR

Steven M. Puiszis is a partner in the Chicago offices of Hinshaw & Culbertson LLP.  He is a member of DRI’s Board of Directors, and is the Chair of DRI’s Judicial Task Force. He also is the editor of “Without Fear Or Favor In 2011, A New Decade Of Challenges To Judicial Independence And Accountability.”

It should come as no surprise that the federal judiciary is calling for greater security due to threats from people who have been denied Social Security disability benefits.  Dissatisfaction with the judiciary, and resulting threats against judges, their families, and their staffs is a real and growing problem.  The level of dissatisfaction and the related growing level of threats is attributable in large part to the availability of internet websites and blogs that are created and fueled by unhappy litigants.  Even a brief scan of the internet will produce dozens of single issue sites in which writers are encouraging disobedience toward judicial orders and violence against judges. 

Another significant reason for increasing hostility toward judges is unjust criticism from the other branches of government.  Hardly a day passes that a senator, congressman, governor or mayor is not lambasting a judicial opinion on cable news or on the internet.  While freedom of speech certainly gives anyone the right to criticize judicial decisions, the public criticism from elected officials is growing increasingly personal, and is frequently uninformed and unsupported by the facts of a particular case.  Judicial ethical canons prohibit judges from reacting to these attacks, so the public usually hears only one side.

Every bar association at every level (including state and local) must give consideration to creating active committees to scrutinize judicial criticism and to react when criticism of judges goes beyond the bounds of fair comment.  These committees should also be actively involved with the Chamber of Commerce, judicial associations, and local subdivisions of government to make certain that our courthouses are safe for the judges, their staffs, and the lawyers and consumers who visit the courts.  If we in the  organized bar do not step up and begin responding to unfair and uninformed criticism of the judiciary, then threats against judges on all levels will continue to escalate, and well-intentioned people will cease to want to work in the judiciary.  More importantly, the public will lose confidence in an important branch of government that relies upon public obedience to its orders.

The Texas Legislature is in Session. Every two years the Texas Legislature meets for 5 months. An issue that has been addressed previously and that has become more timely in Texas is Judicial Selection. All Texas judges are elected in partisan elections. As a consequence, the "down ballot" races, such as the judicial races are often decided by hotly contested national or state-wide races. Recently, the judiciary in Houston, Harris County, virtually turned over during the presidential election of 2008 with over 40 Republican District Judges being replaced with 40 new Democrats. Because of this the issue of judicial selection is a hot button issue in Texas.

Texas Association of Defense Counsel member Mike Thompson co-authored this piece with former Texas State Bar President Broadus Spivey. It appeared in the March 16, 2009 issue of the Austin American Statesman.

OTHER TAKES
Spivey & Thompson: The problem with merit selection of judges
Broadus Spivey and Mike Thompson Jr., Local Contributors

Monday, March 16, 2009

For over 150 years Texans have enjoyed a Constitutional right to an elected judiciary. All through that history some have argued that we should move away from the system of partisan judicial elections. Most recently, those voices have included the Austin American Statesman and Chief Justice of the Texas Supreme Court Wallace Jefferson.

The Chief Justice and Statesman appear to argue for a system used in some states of "merit-selection" of judges by the Governor from a list of candidates generated by a committee and then a later non- partisan retention election of that judge. This seems to derive from the Missouri plan. The Statesman believes this would lead to a better judiciary. Supporters also argue that such a reform would remove politics from the system. Finally, they argue that the reform really isn't that big a change because the people retain the right to vote to remove judges in the retention elections. We disagree that partisan judicial elections should be abandoned and answer each of these arguments below.

Retention system doesn't create a "better" Judiciary

Those seeking change to the way Texas picks its judges suggests that the appointment and retention election system of picking judges will create a better judiciary. To fairly consider whether this is true or not, consideration must be given to what makes a good judge. Most would agree that a good judge should be independent. Most would also agree that they should also be accountable to citizens so as not to be arbitrary in decision-making.

In computing whether or not a retention election system like that proposed by the Statesman will give us a more qualified judiciary, we can draw on the experience of many other states as well as the federal system which has never settled for an elected judiciary. There is also a fair amount of research that has been done on strengths of each system. Those resources can and should be compared to the Texas system.

We believe that Texas judges, by and large, are as well qualified as those from states with retention election systems or their federal brethren. Any judiciary in the country would be proud to have judges the quality of former Texas Supreme Court Justices Joe Greenhill, Bob Calvert or Craig Enoch and present judges like the Chief Justice. All of these distinguished judges were elected or reelected to the Supreme Court in contested partisan elections.

As noted, Social Science Professors have studied the lessons of merit selection in other states. A committee studying the issue quoted Professor's Shuman & Champagne summary of the social science investigation on the subject as teaching "the quality of judges in a merit-selection system are no better than those selected by voters ... ".p. 4 "The Case for Partisan Judicial Elections," Judicial Selection White Papers, Professor Michael Debow http://www.fed soc.org/publications/pubID.90/pub_detail.asp Federalist Society, 2003 visited Feb. 16, 2009. The authors concluded: "Much research has been conducted, looking for evidence that Missouri plan judges are systematically better qualified that elected judges. No evidence of this sort has been found". p. 4.

The next question to answer to decide whether this reform will lead to a better judiciary is whether judges in merit selection states are more independent than the Texas judiciary. In the classic study of the Missouri Plan, The Politics of Bench & Bar the authors found—the competing plaintiff and defendant bar were about equally successful in obtaining seats for judges they supported for appointment. Thus, the result was a relatively well -balanced "two-party" competition. However, that competition took place in a subterranean process beyond popular control. Thus, in reality the competition continued just without the people having a meaningful say.

Politics remains in the retention system just as in system of partisan elections.

The reformers at the Statesman suggest that with retention elections, the picking of judges will be less political. Yet, as pointed out above, those who have studied the system in such states have come to a far different conclusion. The interest groups who have a significant stake in the judiciary will continue to work to promote their interests no matter what formula is used to pick judges. Again, the research shows that those with the greatest interest (i.e. The bar) have a way to make themselves felt regardless of method employed. Nor has the federal appointed system demonstrated an absence of politics in the selection of judges.

In its editorial, the Statesman argues that an imminent ruling from the US Supreme Court in the Caperton v. Massey case will change the calculus of judicial elections. While Caperton is an important case regarding recusal of judges, the Supreme Court has previously considered and found that independent political speech like that used in the West Virginia judicial elections at issue in Caperton do not pose a threat of corruption or the appearance of corruption. Randall v. Sorrell, 548 U. S. 230 (2006); Buckley v. Valeo, 424 U.S. 1 (1976).

The people don't retain any meaningful right to vote in the merit selection plan.

In the merit selection of judges plan, the people have no real right to vote. What they are left with is an uncontested retention election years after an appointment by the Governor. Social science studies researching the issue have shown that less than one percent of all judges standing for retention elections have been removed. This is significantly smaller than in partisan elective systems. Further, while turnout is low in typical judicial elections it is even lower in retention elections. With no live opponent, retention elections do not generate the publicity that brings voters to the polls. As note earlier, politics isn't removed from the merit selection process thus at the end of the day only the right of people to participate is.

Judicial partisan judicial elections have substantial advantages over the alternatives. Not least of which is that they provide an additional, significant measure of self-government to voters. Or as Professors' Chris W. Bonneau and Melinda Gann Hall propose in their new book In Defense of Judicial Elections, judicial elections are efficacious mechanisms that enhance the quality of democracy and create a link between citizens and the judiciary. Indeed, this link between self -government and judicial selection may be most important to confirm that Judges are not apart and superior to citizens they serve.

Thomas Jefferson considered the issue and wrote:

"The exemption of the judges from {election} is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them [the people] not enlightened enough to exercise their control with a wholesome direction, the remedy is not to take it [power] from them, but to inform their discretion by education."

Thomas Jefferson, Writings, Vol. XV, p. 278. We believe Thomas Jefferson was right and the people's right to meaningfully participate in electing their judges should be preserved.

Broadus Spivey is an Austin attorney and former president of the state bar. Mike Thompson Jr. is an Austin attorney. He is a member of the Federalist Society, the Texas Association of Defense Counsel and Sam's Club.

As I write, the spectacle of the impeachment trial of Illinois Governor Rod Blagojevich has just completed day two.  Earlier in the day, as in the previous days, the popular and not so popular press decried this man as a "blow hard," "publicity hound," "crook," "idiot," and all the rest, and will likely continue to do so in the days ahead.  The media accounts profess shock and amazement that this man would take to the public airways to make his case rather than defend himself in the proceedings in Springfield, Illinois, birthplace of the political careers of Presidents Lincoln and Obama.  Sadly, it makes sense to us to try this man in the press, pronounce his guilt, cast him aside and move on to the Oscars, the ups and downs of Brittany's career or the public interest story of the day.  After all, the press has received the evidence, weighed it, and presented it, and we, the jurors of right and wrong, the public at large, can decide the case and punish this man with our scorn and contempt and move on to our next tasks.

This spectacle, and its reporting, erodes the public's trust in judicial or quasi-judicial process.  Jury trials are a far cry from the impeachment "trial" taking place in Illinois.  In American courts, judges decide what evidence the jury will hear.  Both sides have subpoena power and can seek enforcement by the court.  Witnesses can be confronted in open court and cross-examined to determine their truthfulness and veracity.  The jury's role is to sit in judgment of the evidence it hears after being instructed in the law by the court.  The jury is admonished not to be influenced by outside events or to read press reports of the proceedings.  The entire process is fair and just.  And in 99 percent  of the cases tried before a jury in this country, a just result is attained.  Wrongs are righted by appellate courts, if appropriate.

Not so the rules governing the Illinois Senate impeaching Governor Blagojevich.  The Senate, not the presiding Illinois chief justice, decides by vote which witnesses the governor can call, which can be subpoenaed, and what evidence can be heard.  Oh yes, he can move the Senate to admit certain evidence, but the Senate "rules" on the motion.  The right to confront witnesses and cross-examine them is not preserved.  The rules of the courts of the state of Illinois and the United States are expressly disregarded.  You are encouraged to review the rules for yourself.  The link is: http://www.ilga.gov/senate/committees/Documents/Proposed%20Senate%20Impeachment%20Rules.pdf.

Ask yourself, would you like to be tried in this court before this jury using rules expressly created for your prosecution by politicians whose heart ticks to the beat of popular opinion?

The entire Blagojevich fiasco is sad.  The saddest aspects are that our faith in what is just in our country is eroded by proceedings such as the Senate impeachment trial in Illinois and the way the press has covered it.  We must measure what is just by the way we treat the unpopular, the weak, and the unfortunate.  The Illinois governor is not weak and is unlikely unfortunate.  He is, no doubt, extremely unpopular.  The treatment of him erodes our confidence in what is fair and just to the detriment of all.

Mike Weston
Lederer Weston Craig, P.L.C., Cedar Rapids, Iowa

On November 3rd 2008 the U.S. Supreme Court denied certiorari in the North Carolina judicial public financing case, Duke v. Leake.  The decision effectively upholds the Fourth Circuit’s decision confirming the constitutionality of North Carolina’s public financing system. 

Many national organizations concerned with the increasing special interests influence on judicial elections were watching this case with great interest.  North Carolina’s public financing system was one of the first in the nation and is often held out as the model for other states hoping to reduce the amount of money that has been pouring into judicial campaigns in those states with judicial elections.

As John Trimble noted in an earlier post to this blog, surveys have shown that the public’s confidence has been eroded by virtue of special interest money that has been pouring into judicial campaigns.  According to a recent North Carolina Center for Voter Education survey, 80% of voters are concerned about the impact that campaign spending by outside groups has on campaigns for state and local office.  While public finance systems will not eliminate campaign contributions by individuals or interest groups, they have proven to be effective in neutralizing the influence of large, single interest groups or donors.  

Public finance systems also appear to be favored by voters, who may be tiring of the relentless attack ads that typically sprout when large amounts of money are sprinkled over judicial election landscapes.  In 2005, as North Carolina’s public finance system was being challenged on First Amendment and Equal Protection grounds, a poll conducted by a conservative polling firm found that 74 percent of North Carolina voters approved of continuing the system.  Only 18 percent opposed its continuation.  North Carolina lawyers comprising the defense bar can be counted in agreement.  Brian Beverly of Young Moore & Henderson, P.A. in Raleigh, who is current president of the North Carolina Association of Defense Attorneys, offered “our Association continues to favor and work toward a system of merit selection for our judiciary.  However, while judicial elections remain in place public financing is certainly a positive step.”   

While most of the attention of the nation is drawn to the presidential election, there are many states that will be holding elections for their supreme and appellate courts.  Once again, record sums of money are being raised for the support of and opposition to judicial candidates.  Much of that money will be spent on television advertising, and we can expect to see a number of attack ads.

The debate continues to rage as to whether judges should be elected or appointed.  Proponents and critics of both methods of judicial selection can make valid points to support their respective views.  However, no one can dispute that the rise of attack advertising in judicial elections and the growth of special interest spending from all sides of the political spectrum is threatening to seriously erode the public’s confidence in the judiciary.

Full Article

For additional information, please see the DRI Judicial Task Force Report - Without Fear or Favor.pdf (5.42 mb)