Sustained Outrage

A silver lining on judicial confirmations?

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Writing for Talking Points Memo, Brian Beutler thinks that Republicans taking control of the House could have a positive impact on President Obama’s nominees.

Beutler suggests that without much legislation coming out of the House to occupy the Senate’s time, Senate Majority Leader Harry Reid (D-Nev.) can schedule votes for pending candidates for federal judgeships and administration posts.

[W]hile the House passes legislation the Senate has no interest in considering, Majority Leader Harry Reid will have much more time, if he chooses, to devote to confirming a large backlog of Obama’s judicial and executive branch nominees — particularly numerous non-controversial picks, who will have to be renominated next year.

That’s certainly what advocates would like to see.

“Reid should concentrate Floor time on must pass bills, message and other votes that highlight differences and important matters that are or should be non-controversial, including confirming lifetime federal judges,” Glenn Sugameli, an advocate for swift judicial confirmations, tells TPM. “All of Obama’s nominees to circuit and district courts have had the support of their home-state Republican and Democratic senators and the vast majority have been non-controversial nominees who have been approved by the Judiciary Committee without objection and approved unanimously when they finally receive usually long-delayed Floor votes.”

“If one or more Republican senators force cloture votes on consensus nominees, they will accurately be seen as mindlessly obstructionist,” Sugameli says. “If they do not, nominees will be confirmed quickly.”

However, scheduling and holding floor votes still takes time, and there don’t seem to be any indications that GOP senators will any more accommodating with a 47-seat minority than they were with a 41-seat minority. The TPM piece continues:

That’s not to say that scores of judicial vacancies will be filled immediately, or that President Obama will (finally) see his executive branch fully staffed. Democrats will have a much smaller majority of 53 Senators, and any single Republican will be able to force Democrats to round up 60 votes and spend nearly a week of floor time to get a nominee confirmed.

“I would remind you that actions have consequences and we’re going to have to deal with what the House sends us and, at the other end, it’s three days plus [per filibuster] and all the days add up,” says Reid spokesman Jim Manley.

But one of the biggest hurdles nominees faced this year was a thick legislative agenda: they were literally crowded out by the sheer volume of routine, emergency, and history-making legislation. Next year that won’t be an issue. And that has some advocates seeing a silver lining around the midterm election results.

Hmm. I may be a big fan of Monty Python, but I don’t think I’m ready to start singing along just yet, particularly given that Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, just published this call for the restoration of bipartisanship and civility on Politico.com.

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Judicial nominees and the midterm election: Now what?

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(AP Photo/Charles Dharapak)

Elections have consequences, politicians like to remind us, usually after a big win. Within that simple phrase lies an implicit threat to those who find themselves outside looking in at the corridors of power: You’re going to need to get used to a new way of doing business.

Last week’s election saw Republicans retake control of the U.S. House of Representatives, and although they made inroads in the Senate, Republicans fell short of achieving a 51-vote majority. Thanks in part to Joe Manchin’s victory in West Virginia, Democrats still hold 53 seats in the Senate (including two independents who caucus with the Dems).

So what effect will the election have on President Obama’s judicial nominees?

The short answer: Probably not much.

Democrats had already lost their 60-seat super majority that, at least in theory, enabled them to easily overcome any threat of a GOP filibuster. Over the past two years, Republicans have proved very adept at preventing nominees from getting up and down votes, as have Democrats in the past when they were in the minority.

Just before the election, President Obama once again made reconciliatory overtures at Congressional Republicans in his weekly address. Obama was specifically calling on leaders to focus on the economy as the main issue confronting Americans, but I think his remarks can apply as well to confirming nominees.

On these issues – issues that will determine our success or failure in this new century – I believe it’s the fundamental responsibility of all who hold elective office to seek out common ground.  It may not always be easy to find agreement; at times we’ll have legitimate philosophical differences.  And it may not always be the best politics.  But it is the right thing to do for our country.

That’s why I found the recent comments by the top two Republican in Congress so troubling.  The Republican leader of the House actually said that “this is not the time for compromise.”  And the Republican leader of the Senate said his main goal after this election is simply to win the next one.

I know that we’re in the final days of a campaign.  So it’s not surprising that we’re seeing this heated rhetoric.  That’s politics.  But when the ballots are cast and the voting is done, we need to put this kind of partisanship aside – win, lose, or draw.

In the end, it comes down to a simple choice.  We can spend the next two years arguing with one another, trapped in stale debates, mired in gridlock, unable to make progress in solving the serious problems facing our country.

A lot of people, including the Federal Bar Association, would put the more than 100 vacancies in the federal judiciary among the serious problems facing our country.

So would Bloomberg’s Ann Woolner, who wrote in a column published earlier this week that said that Republican gains in the Senate would make it easier for the GOP to block Obama’s nominees:

Pushing the judiciary rightward has been a staple of Republican campaigns for decades.

Part of the strategy, used by both parties, is to block judicial candidates named by a president of the opposite party. This became easier last week for Republicans, who were already doing quite well at it.

Republicans have managed to stall more than a score of President Obama’s nominees to the bench so far, although they number only 41 senators, barely enough to keep a filibuster going.

With six more Republican senators narrowing the gap in January, the minority party in the Senate will have more muscle to use against the president’s choices.

This matters a lot. Whether the issue is health care, immigration or regulation, federal judges will decide which provisions are constitutional and which ones must die.

Republicans have been loading the federal bench with as many conservatives as they can, while blocking as many Democratic nominees as possible.

Yes, I said Democratic nominees instead of liberal. The current list of 23 stalled Obama nominees includes 17 approved by the Senate Judiciary Committee without a whiff of controversy or even a no vote against them.

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Money vs. incumbency: Advantage money

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Right around the primary, I wrote about a study by the National Institute on Money in State Politics called The Role of Money and Incumbency in 2007-2008 State Elections. That study concluded that when an incumbent also enjoyed a fundraising advantage, they won 96 percent of the time. That’s a pretty big hurdle for challengers to overcome.

But what happens when the money advantage changes sides?

Thanks to the U.S. Supreme Court’s Citizens United decision, third parties can now spend money on behalf of candidates without limit, and without having to disclose the true origin of the money. (You can read previous coverage here.) And spend they did, as this report, Outside Job, from Public Citizen points out.

In the 2010 general election, where a Congressional seat was not won by the party that previously held it, third parties spent more on the winner than on the loser 78 percent of the time.

Winning candidates in elections in which power changed hands were aided by average spending of $764,326 by independent groups, while losing candidates were aided by average spending of $273,268, a ratio of nearly 2.8 to 1. The analysis deemed outside spending as aiding candidates if it either praised them or criticized their opponents. It does not include outside spending for primaries.

To be clear, not all of the elections cited involved an incumbent. For example, in West Virginia’s 1st Congressional District, incumbent Democrat Rep. Alan Mollohan lost in the primary, so the contest between Republican David McKinley and Democrat Mike Oliverio was for an open seat. The study includes the race because the seat changed hands as McKinley, aided by $931,700 in outside spending, beat out Oliverio, who didn’t garner any outside spending, according to the study.

(Public Citizen’s hastily assembled list, published on Nov. 3 before all the elections were decided, differs slightly from this accounting from Politico, which puts the total at 68.  It’s not clear why Politico didn’t include open Senate seats that used to belong to Democrats, including Illinois, Indiana, North Dakota and Pennsylvania, that were won by Republicans on Nov. 2.)

Also, the earlier study focused on state legislators, not members of Congress, where much more money is in play. And Public Citizen’s study doesn’t look at overall spending, it only looks at third-party spending. It’s possible that some of the losing candidates actually outspent the winners when candidates’ own funding is added in.

But the quick takeaway from Nov. 2 is that outside parties are likely to keep pouring lots of cash into elections because, well, it seems to be pretty effective.

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An avalanche of cash in judicial campaigns, Pt. 2

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In a previous post, we looked at the vast amounts of cash poured into judicial campaigns, particularly races for seats on state Supreme Courts, and how many believe that money is undermining the judicial system.

On a macro level, well-organized and well-funded groups are spending millions and millions of dollars to help elect judges they believe will be either pro or con lawsuits filed against big businesses. But what about on a micro level?

As this report, The New Politics of Judicial Elections, 2000-2009: Decade of Change,  co-authored by JusticeatStake.org, The Brennan Center for Justice, The National Institute on Money in State Politics and Hofstra Law School points out, when a judicial candidate accepts a campaign contribution, that leaves him or her open to the allegation that the donor will receive — or at least expect — special treatment from the bench.

In West Virginia, judicial candidates cannot ethically solicit campaign contributions directly themselves. But that doesn’t mean that lawyers and businesses don’t hurry to open their wallets and checkbooks for candidates whom they hope will look upon their cases and causes favorably. And in very extreme cases, this might lead to their disqualification, but only in the most extreme cases.

So what’s a candidate to do?

The current race for state Supreme Court between Democratic incumbent Thomas McHugh and Republican challenger John Yoder, circuit judge in Berkeley, Jefferson and Morgan Counties, offers an interesting case study.

As campaign finance filings on the Secretary of State’s website show, McHugh has raised $289,326.09 as of Oct. 22. Yoder, by contrast, has raised $5,851.40. To date, McHugh has spent almost 40 times as much as Yoder.

Now, Yoder may pay dearly for his modest fundraising on election day — I really have no idea — but clearly he intends to insulate himself from any hint of a suggestion that he is beholden to any given campaign contributor.

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An avalanche of cash in judicial campaigns, Pt. 1

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With the election just days away, I thought now might be a good time to revisit the topic of money and judicial campaigns. Right now, with control of the U.S. Senate and the House of Representatives at stake, most of the media’s focus is on the flood of third-party cash poured into the closest congressional races without the true source of the funding being divulged. (Thank you, U.S. Supreme Court, for Citizens United.)

But as this report, jointly produced by JusticeatStake.org, The Brennan Center for Justice, The National Institute on Money in State Politics and Hofstra Law School, documents how, over the last decade, the amount of money involved in judicial campaigns has exploded. And, as retired Justice Sandra Day O’Connor explains in her introductory letter, the glut of campaign cash has a potentially pernicious effect on the judicial system.

We all expect judges to be accountable to the law rather than political supporters or special interests. But elected judges in many states are compelled to solicit money for their election campaigns, sometimes from lawyers and parties appearing before them. Whether or not these contributions actually tilt the scales of justce, three out of every four Americans believe that campaign contributions affect courtroom decisions.

This crisis of confidence in the impartiality of the judiciary is real and growing. Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.

We all have a stake in ensuring that courts remain fair, imparitial, and independent. If we fail to remember this, partisan infighting and hardball politics will erode the essential function of our judicial system as a safe place where every citizen stands equal before the law.

The report itself concluded that in the past 10 years, $206 million has been spent on state Supreme Court races alone. Here’s what that looks like, in two-year units:

And here’s that $206 million figure broken down by source of funds:

Where does West Virginia figure into all of this? Well, with a total population of 1.8 million, which ranks 37th in the nation, West Virginia ranked 10th in spending over the past ten years, with almost $9.6 million in total spending.

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Money and elections

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I didn’t post this until after yesterday’s primary was over, because I didn’t want anyone to think that I was trying to influence voters in any way. But the National Institute on Money in State Politics released a couple of interesting studies recently that examined the intersection of money, incumbency and politics in state legislative elections.

Incumbents who also had a fundraising advantage won 96 percent of the time in the 2007-08 election cycle, according to Peter Quist’s study, The Role of Money and Incumbency in 2007-2008 State Elections. In one-third of the races, incumbents ran unopposed.

Challengers who failed to raise more money than the officeholder won only 8 percent of the time. However, when they did manage to build a bigger war chest, challengers won 53 percent of the time, according to the study.

Moreover, the success rate for incumbents has been slowly creeping upward, from 89 percent in 2001-02 to 92 percent in 2003-04 and 2005-06 to 94 percent in 2007-08. The winning percentage for candidates with the money advantage has been relatively stable, though: 82 percent in 2001-02; 84 percent in 2003-04; 83 percent in 2005-06; and 80 percent in 2007-08.

The other study, Tyler Evilsizer’s Competitiveness in 2007-2008 State Legislative Races, notes that only 22 percent of candidates nationwide had a monetarily competitive race, i.e. where the candidates raised similar amounts of money.

As for West Virginia, roughly a quarter (26.5 percent) of the 117 legislative races in 2008 were monetarily competitive, while 44 percent weren’t competitive, and 29 percent were uncontested. You can see a national map here.

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Do campaign dollars sway judges?

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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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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.

Caperton, recusal and judicial elections

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benjaminap.jpgInteresting column by Adam Liptak in today’s New York Times, in which he observes that the justices of the U.S. Supreme Court may be a little bit better at interpreting precedent than predicting what impact their rulings may have in the future.

Liptak mentioned in passing the Caperton case, in which a 5-4 majority ruled in June that West Virginia Supreme Court Justice Brent Benjamin (pictured) should have stepped down from a case involving the company of major campaign donor Don Blankenship. (See previous coverage here, here and here.) Liptak wrote:

[D]ire prediction sometimes seems the court’s default rhetorical mode.

Chief Justice John G. Roberts Jr., dissenting from a decision about judicial disqualification in June, said the majority opinion would “inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be.”

That overstated the decision’s likely effect, Penny J. White, a former judge who is now a law professor at the University of Tennessee wrote in The Harvard Law Review in November. She said there would be no “onslaught of judicial recusal motions,” basing her view “on my experience as a state trial and appellate judge and my interaction as a judicial educator with judges from all 50 states.”

I haven’t seen any academic studies on recusal in the wake of the court’s ruling. Anecdotally, it doesn’t appear that there has been a deluge of “Caperton motions” in the courts that I cover. I did take note when Kanawha Circuit Judge Jennifer Bailey voluntarily stepped aside from the criminal case against Natasha Light, the passenger in the truck involved in a high-speed chase the night Charleston Police officer Jerry Jones was killed. Bailey’s clerk, Lori Teel, is Jones’ sister.

(Readers, feel free to bring any cases to my attention if I’ve missed the boat on recusal motions.)

I’m also curious to see if groups with defined agendas have been busy donating money to justices and judges they would want off of their cases, but inexplicably, the Campaign Finance Center section of the Secretary of State’s Web site doesn’t currently allow the public to review campaign finance reports online.

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Campaign spending: open for business?

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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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