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With the U.S. Senate poised to vote today on another of President Obama’s judicial nominees — U.S. District Judge Andre M. Davis of Maryland (left), it’s worth noting that yet again, the senate is proceeding very deliberately, taking up one judge at a time for confirmation by a floor vote.
Writing recently in response to criticism of Obama’s approach to judicial nominations, University of Richmond law professor Carl Tobias said the real cause of delays in approving Obama’s nominees is a bottleneck at the senate.
The committee has approved 14 federal court nominees, and the real bottleneck has been Senate floor action. Of those 14 nominees, only five have received floor debate and confirmation; nine are pending without GOP consent to consider them. Senator Reid has attempted to cooperate with Senator McConnell and Republicans — but to no avail. For example, McConnell insisted that the Senate consider no lower court nominees until it had confirmed Supreme Court Justice Sonia Sotomayor, which delayed the process until September.
The unanimous consent procedure allows one senator to stop the entire body, and anonymous holds have delayed specific nominees’ consideration. Reid has been reluctant to employ cloture, which forces votes, mainly because this practice wastes valuable floor time. However, on Tuesday, Reid took the unusual step of invoking cloture to secure a floor vote on Southern District of West Virginia Judge Irene Berger. She is the third uncontroversial judicial nominee on whom Reid has been forced to seek cloture. Indeed, the GOP has ratcheted up the stakes with the unprecedented action of placing holds on noncontroversial nominees.
At least thus far, it’s hard to blame the political maneuvering and delay tactics on the quality of the candidates, since once Obama’s nominees actually make it to the senate, they have been approved overwhelmingly. Not counting U.S. Supreme Court Associate Justice Sonia Sotomayor’s 68-31 vote on Aug. 6, the four candidates approved by the full senate have received a grand total of three votes against them, and all of those were cast during the vote that confirmed U.S. District Judge Gerald Lynch to the 2nd Circuit Court of Appeals by a 94-3 margin.
It will be interesting to see if any senators vote against Davis. Sen. Jeff Sessions (R-Ala.) recently said, during the discussion that preceded Judge Irene C. Berger’s confirmation, that Davis’ record as a judge was “a cause for some concern.” Soon, voters will see if any of Sessions’ colleagues share his concerns over Davis — at least enough to vote against him.
There’s an old aphorism, repeated to me recently by a learned hand in West Virginia politics, that when you win a presidential election, you should immediately start taking over the government.
As the Associated Press is reporting, Chief Kanawha Circuit Judge Jim Stucky ruled earlier this month that West Virginia’s domestic violence programs discriminate against male victims. They also deny women batterers access to the same treatment programs as their male counterparts, according to Stucky.
You can read the full order here.
Here’s one of Stucky’s conclusions:
The intent of the West Virginia legislature relative to domestic violence is crystal clear. The legislature has found that every person has a right to be safe and secure in his or her home and family and to be free from domestic violence. To secure this right to all West Virginians the legislature has defined domestic violence and those who can be perpetrators or victims of domestic violence in the strictest of gender neutral terms. Every person, regardless of gender, enjoys a statutory right to participation in and receipt of domestic violence services offered by facilities licensed and funded in whole or in part by the state of West Virginia.
The West Virginia State Police have agreed to pay Charleston attorney Roger A. Wolfe $200,001.01 to settle his lawsuit over an alleged beating that occurred in the South Charleston barracks while Wolfe was in custody.
Wolfe maintained that on June 17, 2007, following his DUI arrest, two troopers took him to a small room and beat him (with his hands cuffed behind his back) so badly that cranial fluid came out of his nose. While offering slightly differing accounts of how it happened, the troopers suggested that Wolfe became belligerent and lunged at Paul A. Green, who was forced to sweep Wolfe’s legs out from under him to prevent a head-butt.
In any event, Wolfe ended up requiring treatment at Thomas Memorial Hospital. Although he was treated and released that night (and arraigned and jailed; that’s his mugshot to the left), Wolfe later spent six days in the hospital.
The settlement covers all of the troopers that Wolfe said beat him and later covered it up (Green, Jason S. Crane, Kristy L. Layne and John K. Rapp Jr.). It also covers former superintendent D.L. Lemmon, three unnamed troopers and the agency itself. (Court documents indicate that Wolfe wanted to depose troopers L.W. Price, J.T. Portillo and D.O. Bennett, who were reportedly in the barracks at the time of the alleged beating.)
According to filings in the civil case, all seven of the troopers testified in front of a federal grand jury convened in June or July 2008 as part of a criminal inquiry into the alleged beating. The U.S. Attorney’s Office routinely refuses to confirm or deny the existence of a grand jury investigation, and to date, no criminal charges have been filed in the matter.
You can read more about this in tomorrow’s Gazette.
Updated: Here is a link to the Gazette‘s story on the settlement.
WSAZ had filed a complaint with the Judicial Investigation Commission over Kanawha County Magistrate Tim Halloran (pictured) after he, according to the station, locked one of its reporters out of the arraignment of former Charleston Police Officer Sean Phillip Patrick. (Patrick was accused of soliciting sex over the Internet from a girl he believed was between the ages of 15 and 17.)
Not long after the station lodged a formal complaint, several news vehicles parked outside of the courthouse were ticketed, reportedly at Halloran’s behest. WSAZ then filed another complaint against Halloran over the alleged retaliation. (Read the Gazette‘s coverage here and here.)
Today, the commission informed WSAZ that it had found insufficient evidence to support charges that Halloran violated the Code of Judicial Conduct in either case.
“After a careful review and full discussion of your complaint, the Judicial Investigation Commission was of the opinion that there was no probable cause to file a complaint against Magistrate Halloran, since it could find no substantiated evidence that would indicate any violation of the Code of Judicial Conduct.
“The Commission, therefore, dismissed your complaint and closed its file in this matter.”
— Fred L. Fox, II, Chairperson of the JIC
Mike Waterhouse, the station’s News Operations Manager, had this to say in response: “I am very disappointed in the decision of the Judicial Investigation Commission.”
As I posted earlier, judicial officers aren’t supposed to summarily close courtrooms during criminal proceedings without providing prior notice and justification. At least, not according to state law they’re not.
I have to admit that I was pretty stunned when I read this article by Curtis Johnson, my counterpart at the Huntington Herald-Dispatch. In Curtis’ telling, Cabell County Circuit Judge Alfred Ferguson kicked him out of an evidentiary hearing in open court after Curtis (quite correctly) refused to promise not to report on the hearing’s contents.
Here’s what Ferguson said later by way of an explanation, according to the article:
“When I’ve got this hearing scheduled and people there … I just can’t stop the court proceedings for the news media,” he said.
Oh, yes you can, judge. In fact, that’s exactly what you should have done. Or do West Virginia’s Supreme Court of Appeals’ rulings on press access no longer apply?
This isn’t the only time the issue of excluding the press from a criminal hearing has come up recently (cough, Tim Halloran, cough). So here, for the benefit of Ferguson, Halloran and any other judicial officer who want to arbitrarily boot reporters from his or her courtroom without prior warning, is a refresher on West Virginia’s open courts laws.
First, there’s Article III, Section 17 of the West Virginia Constitution:
The courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay.
In fact, under West Virginia law, even quasi-judicial proceedings, such as disciplinary hearings for doctors and lawyers, are open to the public, thanks in no small part to the crusading efforts of late Gazette publisher W.E. “Ned” Chilton III in Daily Gazette Co.,Inc. v. Committee on Legal Ethics of the West Virginia State Bar (1984) and Daily Gazette Co., Inc. v. West Virginia Board of Medicine (1986).