Sustained Outrage

Actually, TWO nominees confirmed

Yesterday, with the U.S. Senate scheduled to vote on the nomination of Maryland Judge Andre M. Davis to the 4th Circuit Court of Appeals, I wrote about how President Obama’s judicial nominees were getting votes one at a time.

honeywell.jpgWell, Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, had other plans. As he and Sen. Jeff Sessions (R-Ala.), the Judiciary Committee’s ranking member, discussed Davis’ qualifications, Leahy moved to have the Senate take up the nomination of Judge Charlene Edwards Honeywell (right) for federal judgeship in the Middle District of Florida.

Without objection, the motion was approved, and just after the Senate confirmed Davis by a vote of 72-16, it unanimously approved Honeywell, 88-0. (Honeywell was on the same panel as West Virginia Judge Irene C. Berger that appeared before the Senate Judiciary Committee on Sept. 9. They both passed out of committee on Oct. 1, and Berger was confirmed Oct. 27.)

Once again, Republicans and Democrats sparred over the pace of judicial confirmations by the Senate. During his remarks, Sessions objected to the suggestion that Republicans are responsible for the five vacancies on the 4th Circuit:

sessionsthumb.jpgI find it breathtaking that people would suggest that the Republicans, who tried to fill that vacancy for 9 years and had the nominees blocked, were responsible for vacancies which have been there for a long time. I find that quite an odd thing.

Sessions noted that President George W. Bush nominated four candidates four the 4th Circuit Court of Appeals in 2008, whose nominations expired without any receiving an up-and-down vote by the full Senate.

Some of them never even got a hearing, despite being highly qualified, outstanding nominees. So Judge Davis has done pretty well in getting his case before the Senate and being able to get a vote.

Except the exact same thing happened to Judge Davis when he was first nominated for the 4th Circuit of Appeals by President Bill Clinton in 2000. Davis never received a hearing, and his nomination expired without the Senate ever taking it up. Both parties tend to drag their feet on nominations made during the final year of a lame-duck presidency. That’s part of the way the game is played.

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Another nominee, another individual vote

andredavis.jpgWith 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.

bergerthumbnail.jpgFor court watchers, the big news in West Virginia this week was the unanimous confirmation of Judge Irene C. Berger (right) by the U.S. Senate. Tuesday’s 97-0 vote makes Berger the first black judge on the federal bench in West Virginia history.

But Berger’s relatively smooth passage notwithstanding, the confirmation process is apparently becoming more contentious. After Michael A. Fletcher of the Washington Post noted that the Obama administration has submitted fewer names during its first nine months in office than its predecessor, several commentators have suggested that part of the reason so few judges have been confirmed is that Senate Republicans have taken obstructionism to a new level.

In a widely-read piece published Monday, Slate‘s Doug Kendall said that Senate Republicans have slowed the confirmation process to a crawl by delaying up-and-down votes even for candidates unlikely to raise objections.

The emerging Republican strategy is to hold these uncontroversial nominees hostage as pawns in the larger war over President Obama’s agenda and the direction of the federal judiciary. The Senate operates according to a set of arcane rules that allows a minority party to bring the institution to a halt if it chooses to do so. Most bills and nominations pass through the Senate with no debate and only a voice vote on the Senate floor. But this requires every senator to play along. By stonewalling on every nominee so far, Minority Leader Mitch McConnell, R-Ky., is requiring his counterpart, Sen. Reid, to negotiate, or devote precious floor time, for every judicial confirmation.

An Oct. 23 study by Russell Wheeler of the Brookings Institution, a Washington think tank, concluded that the relatively few Obama nominees are receiving speedy hearings before the Senate Judiciary Committee, but little more.

It is too soon to say whether these early developments presage an administration with a less energetic policy on judicial nominations than its predecessor; greater difficulty in identifying qualified candidates, especially non-judges; or a Senate that will not confirm large numbers of nominees because of unchallenged minority delaying tactics—or some combination of all three. 

Part of the issue, Wheeler wrote, may be that Obama is in a position to reshape the federal judiciary in ways that President George W. Bush never could. According to Wheeler, 41 percent of Obama’s nominees to federal District and Appeals courts would replace a Republican nominee, compared to 22 percent of Bush’s judges who replaced Democratic nominees.

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Help wanted: Judicial vacancies in West Virginia

UPDATE: U.S. Sens. Robert C. Byrd and Jay Rockefeller have just recommended state Democratic Party chairman Nick Casey to President Obama for the federal judgeship in the Northern District.

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.

president_official_portrait_lowres.jpgSome observers, as noted by the Washington Post‘s Michael A. Fletcher, are beginning to wonder when President Obama is going to focus more attention on the 96 vacancies in the federal judiciary. As of Oct. 18, Obama has forwarded 23 nominations for federal district and appeals court judgeships to the Senate for consideration. By comparison, Fletcher wrote, President George W. Bush submitted 95 names over the same period following his election.

To be fair, the Obama administration (unlike its predecessor) has had to contend with an opening on the U.S. Supreme Court, and may be preparing for the possibility of one or two more in the relatively near future, given the speculation surrounding Associate Justice John Paul Steven’s retirement and the apparent precariousness of Associate Justice Ruth Bader Ginsburg’s health. These high-profile appointments may have pushed other judicial nominations to the back burner.

What does this mean for West Virginia? The Mountain State currently has two open seats on the federal bench, one each in the Northern and Southern Districts. Kanawha Circuit Judge Irene C. Berger’s nomination to the opening created when U.S. District Judge David A. Faber took senior status at the end of last year made it out of the Senate Judiciary Committee on Oct. 1. She is now awaiting endorsement by the entire Senate.

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Should Benjamin step down from Maynard e-mail case?

benjaminap.jpgSeveral Gazette readers, and at least one Web site commenter, wondered today why Chief Justice Brent Benjamin was taking part in a pending appeal over whether the West Virginia Supreme Court must release e-mails between former Justice Spike Maynard and Massey Energy President Don Blankenship.

As recounted in today’s paper, The Associated Press is challenging a decision by Kanawha Circuit Judge Duke Bloom to withhold from public release eight of 13 electronic messages between Maynard and Blankenship.

Why Benjamin didn’t recuse himself seemed like a reasonable question, given the fact that the U.S. Supreme Court earlier this year ruled that Benjamin should have stepped down from another Massey case because of Blankenship spent millions of his own money on an independent campaign to put Benjamin on the court.

I asked Jennifer Bundy, the Supreme Court’s media spokeswoman, if Benjamin considered recusing himself and if so, why he didn’t.  She responded:

No one asked for the disqualification of any justice, nor was there any suggestion that any member of the Court not hear the case.

But did Benjamin consider stepping down from this case on his own, to avoid any appearance of a conflict? Bundy said:

The case is pending in the Court.  It is inappropriate for any member of the Court to comment about it.

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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.

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State Police settle with Roger Wolfe

State Police patchThe 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.

wolfemugshot.jpgIn 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.

(Read previous posts related to Wolfe’s lawsuit here, here and here.)

You can read more about this in tomorrow’s Gazette.

Updated: Here is a link to the Gazette‘s story on the settlement.

Judicial Investigation Commission clears Halloran

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 halloran.JPGreporters 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.

Behind closed courthouse doors in Cabell County

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).

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Campaign spending: open for business?

39197024.jpgLast month, at the first public meeting of the Independent Commission on Judicial Reform, several speakers from North Carolina extolled the virtues of the Tarheel State’s public financing option, in place since the 2004 election. Public financing, they said, helps insulate judicial candidates from the appearance of undue influence from campaign donors.

(A quick aside: Judges are in a tricky spot when it comes to campaign fund raising. They cannot personally solicit campaign donations, and most will tell you that they never look at the list of contributors that their campaign treasurers submit to the Secretary of State. In practical terms, however, this doesn’t mean that they don’t know who gives them money. They get a pretty good idea of who is supporting them, including lawyers, when they go to their own fundraising events. And in case it has escaped notice, many lawyers will take the first chance they get to remind judges that they gave money to their campaign. But, as a recent advisory opinion from the Judicial Investigation Commission reiterated in March, the existence of a campaign donation from a lawyer to a judge does not by itself require a judge to step down from any case involving that lawyer. The most any individual can give is $1,000, both in the primary and the general election.)

But back to campaign spending. Other speakers at the forum, including campaign law expert Kenneth A. Gross, warned the commissioners that public financing won’t touch independent expenditures. In fact, the trend has been for courts to ease restrictions on campaign spending, he said.

He and others are monitoring how the U.S. Supreme Court handles the Citizens United v. Federal Elections Commission case. In a rather extraordinary move, the justices asked for a rehearing of a case, and scheduled it for yesterday, during their summer recess. At issue in this case is whether the U.S. Supreme Court will overturn a ban on corporate spending in elections that has been in place since 1907.

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