Sustained Outrage

Do campaign dollars sway judges?

The Brennan Center for Justice‘s Adam Skaggs published an interesting article titled “Judging for Dollars” in The New Republic over the weekend. It’s another look at judicial elections in the wake of the U.S. Supreme Court‘s 5-4 decision in the Citizens United case.

Refreshingly, the article’s starting point is not the 2004 West Virginia state Supreme Court election that saw Brent Benjamin unseat Warren McGraw, with Massey Energy CEO Don Blankenship spending millions of his own money on anti-McGraw campaign advertising. (Blankenship’s outsize contributions later caused the U.S. Supreme Court to order Benjamin to step down from an appeal involving Massey.)

Instead, Skaggs highlights a Supreme Court race in Illinois during the same year, in which candidates raised a record $9.4 million. (By contrast, Supreme Court candidates in West Virginia, with a population roughly one seventh the size of Illinois’, raised $2.8 million in 2004.)

And the circumstances surrounding the Illinois race (which could easily apply to the legal climate here) were not an anomaly, Skaggs wrote:

The eye-popping fundraising resulted from a parade of special interests on both sides of the “tort wars.” The fifth district had been known for large damage awards against corporate interests, and the election’s winner was expected to play a crucial role on a closely divided Illinois supreme court. Trial lawyers funneled millions to [Gordon] Maag, while [Lloyd] Karmeier got buckets of cash from the U.S. Chamber of Commerce. Karmeier also got a boost from a company with a very real interest in the race’s outcome: State Farm Insurance Company, which happened to be appealing a damage award of more than $450 million. Karmeier got $350,000 in contributions from employees, lawyers, and others directly involved with State Farm and another $1 million from larger groups affiliated with the company. After he won the election, Karmeier cast the deciding vote that saved State Farm roughly a half-billion dollars.

The Illinois election wasn’t an anomaly. In the last decade, state judicial elections across the country have evolved from quiet, civil contests into extravagant affairs with exorbitant spending, mud-slinging, and bitter personal attacks. Special interests in particular have helped engineer many of these races, pouring money into campaign coffers and negative TV ads. For instance, in a 2006 race in Washington—the most expensive judicial election that state had ever seen—every TV spot was paid for by a special interest group. As an Ohio AFL-CIO official put it, “We figured out a long time ago that it’s easier to elect seven judges than to elect one hundred and thirty-two legislators.”

According to polls cited by Skaggs, three out of four Americans (and almost one in two judges) think campaign contributions affect the way judges rule in cases. And a 2006 New York Times study of Ohio justices suggests that there is a correlation between contributions and votes, Skaggs noted:

The study found that, over a twelve-year period, Ohio justices (including Pfiefer) routinely sat on cases after having received campaign contributions from the parties involved. And, in those cases, the judges voted in favor of their contributors in seven cases out of ten. One justice voted for his contributors 91 percent of the time.

Skaggs praises states that, like West Virginia during the just-ended Legislative session, have enacted public financing for judicial elections.

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From delaying votes to delaying hearings

I’ve written before about how long it can take for the entire senate to give consideration to judicial nominees — even non-controversial ones — after they’ve passed out of committee. Recent developments suggest that it may be getting harder to even get a hearing in front of the Senate Judiciary Committee in the first place.

Today, at the behest of Judiciary Republicans, Chairman Patrick Leahy (D-Vt.) agreed to delay the scheduled hearing for two judicial nominees from California. In so doing, he released a statement blasting the maneuver as “petty, partisan politics.”

patrickleahySenate Republicans’ tactics of obstruction and delay know no limit. They have objected to reasonable timetables to consider President Obama’s qualified judicial nominees, and now they are objecting to allowing the Judiciary Committee to conduct hearings in connection with these nominations. Senate Republicans continue their ill-advised protest of meaningful health reform legislation by exploiting parliamentary tactics and Senate Rules, to the detriment of the American people and, in today’s instance, at the expense of American justice. I urge them to reconsider and allow this hearing to proceed as scheduled.

I have accommodated requests from Judiciary Committee Republicans to delay the Committee’s hearing to consider Professor Liu’s nomination. I had intended to hold this hearing two weeks ago, but instead scheduled a hearing for Judge Robert Chatigny, a nominee to the Second Circuit Court of Appeals. When Republicans who had agreed to proceed on the Chatigny nomination then reversed themselves and asked that I postpone the hearing on that nomination, I did so as a further accommodation to them. Those accommodations have met with the same Republican stonewalling we have seen in our efforts to consider judicial nominees since President Obama was elected, including the stalling of 22 judicial nominees favorably reported by the Judiciary Committee and awaiting final Senate approval. Sixteen of those judicial nominees were voted out of Committee without opposition and yet the delay and obstruction continues.

Meanwhile, the number of judicial vacancies continues to grow. Right now, there are 102 vacancies, with 37 nominees pending. On Feb. 1, 2009, just days after President Obama took office, there were 59 total vacancies. So, in the 14 months that Obama has been in office, there have been more vacancies created (43) than filled (19, which includes Associate Supreme Court Justice Sonia Sotomayor). At this rate, by the end of this term, there will be 82 vacancies — or more than nine percent of the 876 federal judgeships.

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When veterans become criminal defendants

gavelflagA case from West Virginia is the starting off point for this article in the New York Times about how judges are considering military service when sentencing veterans who become criminal defendants.

Many veterans like Mr. Oldani have returned from Afghanistan and Iraq burdened by post-traumatic stress, drug dependency and other problems. As veterans find themselves skirmishing with the law, judges are increasingly finding ways to provide them with a measure of leniency.

“More and more courts are noticing and asserting, in a variety of ways, that there seems to be some relevance to military service, or history of wartime service, to our country,” said Douglas A. Berman, a law professor at Ohio State University and an expert on sentencing.

At the federal level, judges are bucking guidelines that focus more on the nature of the crime than on the qualities of the person who committed it. States, too, are forming special courts to ensure that veterans in court receive the treatment their service entitles them to.

Per capita, West Virginia has a disproportionately high number of veterans. According to these figures from the U.S. Department of Veterans Affairs, almost one in ten (or 9.6 percent) of the Mountain State’s population served in the military, compared with 7.7 percent nationally.

As the article notes, many veterans are coming home from the Middle East with Post-Traumatic Stress Disorder.

While veterans are not considered to be more likely to be arrested than the rest of the population, estimates released by the Bureau of Justice Statistics in 2008 found 229,000 veterans in local jails and state and federal prisons, with 400,000 on probation and 75,000 on parole.

There are about 1 million veterans of the two current wars in the Veterans Affairs system so far, said Jim McGuire, a health care administrator at the agency. He cited statistics suggesting that 27 percent of active-duty veterans returning to civilian life “were at risk for mental health problems” including post-traumatic stress syndrome.

In February 2009, Timothy Oldani, of Scott Depot, pleaded guilty to selling night vision optics that his brother, Joseph Oldani, stole while serving at Camp LeJeune in North Carolina. U.S. District Judge Robert C. Chambers, who presides in Huntington, not Charleston, as the Times bylined its story, gave Joseph Oldani 21 months in prison, while Timothy Oldani received a five-month prison sentence.

According to a Gazette brief from June 2009, Chambers told Timothy Oldani during his sentencing hearing: “You were an excellent soldier. You served with honor and bravery, but that is not a free pass to probation.”

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The West Virginia Supreme Court unanimously agreed today to hear a full appeal of  the case over natural gas drilling at Chief Logan State Park.

Justices voted 5-0 to hear the case, in which environmental groups and state regulators seek to overturn a lower court ruling to allow new drilling operations inside the Logan County park.

Keenan confirmation vote scheduled

BarbaraMilanoKeenanJust like clockwork, the Senate has scheduled a vote tomorrow for Barbara Milano Keenan (right), the Virginia state Supreme Court Justice who was nominated by President Obama in September for a seat on the U.S. Court of Appeals for the 4th Circuit.

Why clockwork? Well, the Senate seems to have settled on four months as the appropriate amount of time for a nominee to an appellate court to wait for a vote after passing out of committee. The Judiciary Committee approved Keenan unanimously on Oct. 29, and lo and behold, four months later, she’s up for a vote. Here’s a look at the circuit judges who have been confirmed, and the lag time between committee approval and their final vote:

David F. Hamilton, 7th Circuit: Six and 1/2 months

Andre M. Davis, 4th Circuit: Four months

Gerald Lynch, 2nd Circuit: Three and 1/2 months

Beverly Baldwin Martin, 11th Circuit: Four months

Joseph A. Greenaway Jr., 3rd Circuit: Four months

Hamilton is the outlier, since Senate Republicans chose to use his nomination to send a message to the president that they are willing to hold his nominees hostage for political gain, even non-controversial centrists like Hamilton.

Last week, Sens. Jim Webb and Mark R. Warner, both D-Va., took to the Senate floor to lobby on behalf of Keenan. Webb noted that when he was sworn in last month, Republican Gov. Bob McDonnell specifically requested that Keenan administer the oath of office, adding:

I would like to respectfully request in the name of good governance and the proper functioning of our constitutional system that our colleagues on the other side of the aisle to allow a prompt vote on her nomination. Justice Keenan was voted out of committee in October of last year, by a unanimous voice vote.  Her nomination is non-controversial.  She has been a dedicated public servant, a fair and balanced jurist, and her nomination has broad bipartisan support.  I believe it is critical that we move forward as quickly as possible to confirm her nomination.

There are currently four vacancies on the Fourth Circuit, more than any other circuit.  The seat that Justice Keenan would fill has been vacant now for more than two years.

[N]ow, in the spirit of pragmatic bipartisanship and good governance, I believe it is time to move past procedural delays that seem to infect us and get on with the business of governing.

I would like to point out that out of 876 federal judgeships there are currently 100 vacancies.  These vacancies delay the administration of justice, they delay the resolution of disputes, and they diminish our citizens’ right to a speedy trial.

It is my understanding that Justice Keenan has broad support in this body, the vote in the Judiciary Committee is evidence of that. In face I would be very surprised if any senator were to vote against her confirmation. Again, I am asking my colleagues across the aisle if they might allow this nomination to advance in a timely way.

I’m guessing that Albert Diaz and James Wynn, two North Carolina judges up for seats on the 4th Circuit who passed out of committee on Jan. 28, have circled the first week of June on their calendars.

Sen. Arlen Specter, D-Pa., also published an op-ed piece last week, lamenting the slow pace of confirmations, particularly in regards to Thomas I. Vanaskie, a federal judge from Pennsylvania up for a seat on the 3rd Circuit.

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richardshelby.jpgJust days after he placed a broad hold on most of President Obama’s nominees, Sen. Richard Shelby (R-Ala.) announced Monday evening that he has lifted his hold on all but three nominees up for senior positions in the Air Force and the Department of Defense.

Through his spokesman, Shelby said he was satisfied that his maneuver had gotten the administration’s attention over his “fully justified” concerns.

As Politico.com‘s Meredith Shiner reported:

“The purpose of placing numerous holds was to get the White House’s attention on two issues that are critical to our national security – the Air Force’s aerial refueling tanker acquisition and the FBI’s Terrorist Device Analytical Center (TEDAC). With that accomplished, Sen. Shelby has decided to release his holds on all but a few nominees directly related to the Air Force tanker acquisition until the new Request for Proposal is issued,” spokesman Jonathan Graffeo said in a statement.

In Monday’s statement, however, Shelby’s spokesman contested the notion that the senator had placed a blanket hold on all nominees — saying Shelby “did not object” to the nominations of “uniform military personnel, federal judges, or Treasury nominees” — and that the senator was justified in using the procedural measure to draw the White House’s focus.

“Sen. Shelby is fully justified in his concern that the Obama administration is seeking to rescind funds already appropriated for this vital national security purpose,” the statement said. “He will continue to work through the appropriations process to ensure that the U.S. military, the intelligence community, and federal law enforcement personnel receive the funding and facilities they need to exploit and analyze intelligence information critical to fighting terrorism and ensuring American security worldwide.

President Obama met with Congressional leaders on Tuesday, telling the press later: “We can’t afford grandstanding at the expense of actually getting something done.”

The New York Times has more on Obama’s discussion with Republican and Democratic leaders here.

“In our meeting, I asked the Congressional leadership to put a stop to these holds in which nominees for critical jobs are denied a vote for months,” Mr. Obama said. “Surely we can set aside partisanship and do what’s traditionally been done to confirm these nominations. If the Senate does not act – and I made this very clear – if the Senate does not act to confirm these nominees, I will consider making several recess appointments.”

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richardshelby.jpgOn Friday, Sen. Richard Shelby (left) confirmed that he had placed a “hold” on all of President Obama’s nominees who need to be confirmed by the senate. Shelby’s spokesman explained that the Alabama Republican was upset over bidding for a Pentagon contract that could create jobs in the Mobile area and financing for building a counterterrorism in Alabama.

As this Politico article explains, a senatorial hold doesn’t completely block a nominee, but it does require 60 votes to override a hold and schedule an up-or-down vote by the entire senate. And with the election of Scott Brown in Massachusetts, the Republicans now have 41 votes in the senate, meaning they can filibuster any nominee of their choosing.

Shelby’s action came just two days after Obama said, “Let’s have a fight about the real stuff,” as he discussed how his nominees have been held hostage with senate Democrats.

Shelby’s holds prompted New York Times columnist Paul Krugman to weigh in on senatorial procedure:

In the past, holds were used sparingly. That’s because, as a Congressional Research Service report on the practice says, the Senate used to be ruled by “traditions of comity, courtesy, reciprocity, and accommodation.” But that was then. Rules that used to be workable have become crippling now that one of the nation’s major political parties has descended into nihilism, seeing no harm — in fact, political dividends — in making the nation ungovernable. … And with the national G.O.P. having abdicated any responsibility for making things work, it’s only natural that individual senators should feel free to take the nation hostage until they get their pet projects funded.

NPR’s Watching Washington blog concluded that all American should be grateful to Sen. Shelby:

Americans owe a debt of gratitude to Richard Shelby, the senior Republican senator from Alabama, and the rest of the Senate should be furious at him.

The reason is simple. Shelby has overstepped the usual bounds of caution and produced an act of senatorial arrogance so breathtaking that the country just might notice. And if the country actually knew that such shenanigans were possible, the country would be amazed and, one would hope, perturbed.

That is why 99 other senators should be short of breath, too. Because if Shelby gets noticed with this extreme version of business as usual, other senators conducting smaller-scale hostage operations on similarly selfish impulses may get noticed, too.

The post continues:

The tactic works by inducing pain. It slows or disrupts the work of literally dozens of federal agencies and courts. It interferes with the normal execution of the functions we all pay taxes to support. But this is not the goal; it is merely pressure, a means to an end.

Placing a hold on a bill or appointment has another purpose. It gives any senator leverage over the White House and the rest of the Senate.

In this case, it serves notice that until Richard Shelby has been satisfied, nothing on the Senate agenda will be more important than satisfying Richard Shelby.

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Will Citizens United push Obama on judicial vacancies?

gavelflag.jpgCall it the law of unintended consequences, but with its ruling in Citizens United, the U.S. Supreme Court may have just given President Obama additional motivation to take strong action to fill the 102 vacancies in the federal judiciary.

Here’s how Nan Aron, president of Alliance for Justice, sees it in an opinion piece published Tuesday on Politico.com:

The breathless reporting of the State of the Union “confrontation” between President Barack Obama and the conservative members of the Supreme Court in the wake of the Citizens United v. FEC ruling has overshadowed a much more serious issue — congressional Republicans’ systematic blocking of the president’s judicial nominees.

While ultraconservatives regularly decry “judicial activism,” this criticism rings false. In fact, conservatives have long had the goal of packing the federal bench with ideological appointees. For years, Republicans have fought to place their own judicial activists in powerful judicial positions. The presence of Justices John Roberts and Samuel Alito on the Supreme Court represents the zenith of this strategy; and, as Citizens United proved, these justices’ activism can have a powerful, lasting legacy.

Now, faced with the prospect of seeing a president with a different judicial philosophy leave his mark on the federal judiciary, senate Republicans have a new strategy, according to Aron: Stall, stall, stall.

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president_official_portrait_lowres.jpgEarlier today, during a meeting with Senate Democrats, President Obama said that getting nominees confirmed — including judicial nominees — “is going to be a priority.” The president urged lawmakers not to hold nominees hostage over unrelated issues, saying, “Let’s have a fight about real stuff.”

Here’s the exchange between Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, and the president:

patrickleahy.jpgLeahy: You have a great sense of what the federal judiciary should be. I think back to President Clinton’s time, when the other side blocked 61 of his judges. You’ve had some superb judges. You’ve talked to both Republicans and Democrats, sent up some superb names. And Senator Reid still has to file a cloture. We have to spend a week of doing that, and then they pass by 100 to nothing or 90-10.

My thing is this — because of what they did last time, we end up with the greatest shortage and the most judicial crises I think in our history. Will you continue to work very hard to get up names as quickly as possible, so that we can do this, and help us get these judges through? I don’t want the same judicial crises to occur. You’ve had good nominees. Can you commit to work with us, both parties, and keep trying to get them through?

Obama: Well, this is going to be a priority. Look, it’s not just judges, unfortunately, Pat, it’s also all our federal appointees. We’ve got a huge backlog of folks who are unanimously viewed as well qualified, nobody has a specific objection to them, but end up having a hold on them because of some completely unrelated piece of business. That’s an example, Michael, of the kind of stuff that Americans just don’t understand.

On the judges front, we had a judge for the — coming out of Indiana, Judge Hamilton, who everybody said was outstanding — Evan Bayh, Democrat; Dick Lugar, Republican; all recommended. How long did it take us? Six months, six, seven months for somebody who was supported by the Democratic and Republican senator from that state. And you can multiply that across the board. So we have to start highlighting the fact that this is not how we should be doing business.

Now, in fairness — in fairness, when we were in the minority, there were some times where we blocked judges, we blocked appointees. I think it’s fair to say we were a little more selective in how we did it — “a lot more,” somebody said. (Laughter.)

So this is an example of where I’m going to reach out to Mitch McConnell; I know Harry has as well. And I’m just going to say, look, if the government is going to work for the American people, I can’t have the administrator for GSA, which runs every federal facility, all federal buildings all across the country — here we are, we’re trying to save billions of dollars, cut waste — Claire McCaskill has been all on top of how can we audit our spending — and we could save billions of dollars in ending old leases that don’t work or renegotiating them or consolidating buildings and efficiencies. But I don’t have a GSA administrator, even though I nominated somebody who was well qualified several months ago, and nobody can tell me that there’s anything particularly wrong with her. They’re blocking her because of some unrelated matter. I don’t know, you guys may know better than I do. And that is — that has to end. It has to end. (Applause.) And the American people want it to end.

Let’s have a fight about real stuff. Don’t hold this woman hostage. If you have an objection about my health care policies, then let’s debate the health care policies. But don’t suddenly end up having a GSA administrator who is stuck in limbo somewhere because you don’t like something else that we’re doing, because that doesn’t serve the American people. Then they don’t know what the argument is about. Then it’s just sort of a plague on both your houses because it looks like you guys are just fighting all the time. And we’ve got to put an end to that.

As I’ve noted before, even non-controversial nominees, including those who pass out of committee without any votes against them, face long waits before they get a vote by the full chamber.

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oconnor_s.jpgRetired Supreme Court Justice Sandra Day O’Connor, who has become an outspoken critic of electing judges since she left the bench in 2006, said Tuesday that the U.S. Supreme Court‘s recent rulings in Citizens United and Caperton “should be a warning to states that still choose their judges by popular election.”

Her comments came at a symposium at Georgetown University’s law school. Carte Goodwin, who chaired Gov. Manchin’s Independent Commission on Judicial Selection, served as a panelist during a discussion of the Caperton ruling.

Adam Liptak of the New York Times has coverage of the event here.

You can listen to O’Connor’s keynote address here, but Liptak certainly picked out a few choice quotes in his article:

“In invalidating some of the existing checks on campaign spending,” Justice O’Connor said, “the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.”


“We can anticipate that labor unions and trial lawyers, for instance, might have the financial means to win one particular state judicial election,” she said. “And maybe tobacco firms and energy companies have enough to win the next one.

“And if both sides unleash their campaign spending monies without restrictions, then I think mutually-assured destruction is the most likely outcome.”

Taken together, Citizens United and Caperton do seem to be on a collision course. On the one hand, corporations are now free to spend unlimited amounts of money on elections, including those that elect judges. But outsize donations to a judicial candidate can be grounds for recusal.

As I’ve noted before, University of Tennessee law professor Penny J. White thinks judicial elections compromise the basic fairness guaranteed by the due process clause of the 14th Amendment.

But as the new rulings sink in, it’s a brave new world out there. Remember, there’s an unfinished term for the state Supreme Court up for grabs in 2010. The first reader who correctly predicts (in the comments section of this post) a corporate campaign donation of more than $100,000 to either Thomas McHugh or John Yoder wins a Gazette coffee mug.