Sustained Outrage

We’ve reported before on the important Freedom of Information Act case in which The Shepherdstown Observer is trying to get copies of the petitions filed to get a zoning matter on the ballot in Jefferson County.

See previous posts here, here and here.

And now, the U.S. Supreme Court has ruled 8-1 that people who sign petitions to put referendums on state ballots do not have a general right under the First Amendment to keep their names secret. According to The New York Times:

The near-unanimity of the decision masked a deep division on a more focused question that the justices left for another day: Are there good reasons to protect the identities of people who signed petitions concerning a measure opposing gay rights and say they fear harassment and retaliation should their names be posted on the Internet?

The Court’s opinion is available here, and there’s much more about the case available from The Scotus Wiki here, including this analysis:

By a broad eight-to-one majority in an opinion by the Chief Justice, the Supreme Court today held in Doe v. Reed that signatories of referendum petitions generally do not have a constitutional right – i.e., a right that would trump state open government laws – to keep their identities private. But the Court held – again, by the same broad majority – that courts should consider in any given case whether a particular referendum presents sufficiently unique circumstances that anonymity is required. It therefore permitted the claim to anonymity in this case, which involves a referendum on gay rights, to proceed in the lower courts. But their chances of prevailing appear very slim, as five members of the Court either expressed significant doubts about their claim or expressly rejected it.

The Martinsburg Journal had a story on the Supreme Court ruling’s possible impact on the West Virginia case, and here’s a right-up from The Reporters Committee for Freedom of the Press.

Oral arguments in the West Virginia case are set for Sept. 8.

Judges and prison sentences

I promise I didn’t set out to make this Prison Week here at Sustained Outrage, but I keep finding interesting information about America’s exploding prison population. Today’s installment comes via the U.S. Sentencing Commission, which in 2007 voted to reduce sentences for crack cocaine violations.

This month, the commission published the results of a survey of federal judges it conducted between January and March of this year. So, how do the group of people tasked with deciding how much time convicted offenders spend behind bars feel about the sentences they hand out?

Well, the answers may surprise you.

When asked if the mandatory minimum sentences associated with various offenses were appropriate, a solid majority of 62 percent said that they are two high in general. When asked about minimums associated with specific crimes, most judges said they were appropriate, with three notable exceptions: For drug trafficking crack cocaine, 76 percent said the minimums are too high. For marijuana crimes, 54 percent said they were too high. And for receiving child pornography, 71 percent of judges surveyed answered that the minimum sentences are too high. This was not the case for production (only 23 percent said too high) or distribution (37 percent) of child pornography.

These results were echoed when the judges were asked about the appropriateness of the ranges suggested by the federal guidelines, which the U.S. Supreme Court ruled are advisory in important opinions in Kimbrough and Gall.

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Goodwin confirmed by Senate

The U.S. Senate unanimously confirmed R. Booth Goodwin II to be U.S. Attorney for the Southern District of West Virginia on Tuesday. The Senate also approved John Foster to be U.S. Marshal for the Southern District and Gary M. Gaskins to be U.S. Marshal for the Northern District.

In a news release, Sens. Robert C. Byrd and Jay Rockefeller applauded the confirmations. From the release:

“I was proud to have recommended Booth Goodwin as U.S. Attorney for the Southern District. His confirmation and appointment is not a day too early. There are a variety of investigations taking place which require immediate attention — including the recent mine disaster in Montcoal which took the lives of 29 West Virginia coal miners.  I believe the people of the southern coalfields deserve the competent and vigilant representation that Mr. Goodwin will bring to the table. He has some very important work to do, and the Southern District is entitled to the resources they need to see their interests protected,” said Byrd.

“I have known Booth Goodwin for many years and cannot think of a better person to fill this important position – a position responsible for investigations of tremendous significance to Southern West Virginia including the tragic Upper Big Branch mine disaster,” said Rockefeller. “His years of service show that he is fighting for the people of West Virginia – and I know that as U.S. Attorney for the Southern District of West Virginia he will continue to enforce our laws and protect our state’s citizens from crime. Mr. Goodwin is more than qualified as a federal prosecutor and I am pleased that the Senate has moved forward on his confirmation.”

In addition, Senators Byrd and Rockefeller applauded the Senate’s unanimous confirmation of West Virginia’s federal U.S. Marshals:  John Foster to be United states Marshal for the Southern District of West Virginia; and Gary M. Gaskins, to be United States Marshal for the Northern District of West Virginia.  Senator Byrd and Senator Rockefeller recommended both Foster and Gaskins to these positions.  They were unanimously approved by the Senate Judiciary Committee on May 13, 2010.

“U.S. Marshals have been protecting this great nation since 1789, and their service has never been more important than it is today. The task of securing the homeland from terrorist attack must be balanced with protecting the public’s court officers and buildings and ensuring the effectiveness of our judicial system. West Virginia is fortunate to have the experience and dedication of men like John Foster and Gary Gaskins to fill those roles,” Byrd stated.

“In these two men we have almost six decades of law enforcement experience, said Rockefeller. “Whether serving as a West Virginia State Trooper or in the U.S. Marshal Service, John Foster and Gary Gaskins have protected West Virginia communities for their entire careers and I am confident that they will keep serving us with integrity and dedication. I look forward to seeing them take office and I thank them for their willingness to continue their incredibly important and honorable work.”

Holds and the 4th Circuit

With so much attention naturally focused on the nomination of Elena Kagan to the U.S. Supreme Court, it’s easy to forget that there are still 99 federal judicial vacancies, including 16 on the appellate level.

Several recent editorials have blamed the slow pace of confirmations on anonymous holds, a procedural maneuver that allows a single senator to block a nomination (or legislation) without having to provide any justification.

Here’s the Washington Post’s take, which blamed Sen. Jim DeMint (R-S.C.) for torpedoing a recent bipartisan effort to ban holds by attaching a last-minute amendment:

There is no excuse for the Senate institution known as the secret hold–the process by which a single, anonymous senator can block action without having to come forward and explain why. Senators know this, which is why every time the question has come before them, they have voted to do away with the secret hold. But somehow the hold has always held on — because while no senator has the guts to defend it publicly, behind the scenes the secret hold is a useful tool for those who are more interested in blocking and extorting than in legislating.

On Tuesday, an editorial in the Charlotte Observer claimed that a senatorial hold by Jon Kyl (R-Ariz.) was responsible for holding up the nominations to the U.S. Court of Appeals for the 4th Circuit of two North Carolina judges, Albert Diaz and James A. Wynn Jr. They were reported out of the Senate Judiciary Committee on Jan. 28.

Their nominations, as those of so many North Carolinians whose names have been sent to Washington for Senate approval, ran afoul of U.S. Sen. Jon Kyl, Republican of Arizona, and they have moved not one inch closer to Senate confirmation. Kyl has given no compelling reason for his action in late April blocking a vote by the full Senate. He has said only he did not want to jeopardize a deal between Republicans and Democrats on some other nominees, but Kyl appears to be using Wynn and Diaz as pawns in one of the pettiest displays of pertinacious politics in a congressional session noted for it.

The refusal to hold a confirmation vote on the two N.C. nominees is indefensible. There is no question about the character of these two nominees or their abilities. The only question is how long Sen. Kyl will block a vote. [North Carolina Republican Sen. Richard] Burr should use his influence with his party to allow this vote to go forward and put these outstanding jurists to work on the 4th Circuit Court of Appeals.

This piece in the Roanoke Times quoted Sen. Ron Wyden (D-Ore.), who co-sponsored the effort to get rid of holds, as saying the cause of open government was “blindsided” by DeMint, who effectively “kneecapped” his colleagues.

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Vicki Smith over at The Associated Press has this interesting piece out this morning:

West Virginia may be sued over Clean Water Act violations that a Georgia lawyer claims have continued for decades.

Atlanta lawyer William “Bo” Gray says more than 160,000 households are piping raw sewage into waterways, and government has done nothing to stop it.

Gray represents a developer who discovered the problem after his planned upscale community overlooking Kanawha Falls was denied sewage permits.

Notices of intent to sue within 60 days have been filed with the state Department of Environmental Protection, the Bureau for Public Health and all 55 county governments.

DEP spokeswoman Kathy Cosco says the agency is evaluating the claims. The Department of Health and Human Resources, which oversees the Bureau for Public Health, says it doesn’t comment on litigation.

For those who are interested, I’ve posted a copy of the notice of intent to sue here.  Among other things, the suit relies on WVDEP’s reports about how many streams statewide are contaminated with “straight pipe” sewage pollution. We’ve addressed this issue previously in our series on the Coal River, but it is certainly a matter that needs more attention.

Judiciary approves Goodwin as U.S. Attorney

At this morning’s executive business meeting, the Senate Judiciary approved Booth Goodwin to become the U.S. Attorney for the Southern District of West Virginia. Goodwin’s endorsement came at the end of the meeting, when a handful of nominees, including John Foster and Gary M. Gaskins to be the U.S. Marshals for West Virginia’s Southern and Northern districts, respectively, were approved all together by the committee.

Almost the entire meeting was spent discussing a different Goodwin, Goodwin Liu, a law professor at the University of California at Berkeley who is up for a seat on the U.S. Court of Appeals for the Ninth Circuit. Liu passed out of committee by a 12-7 vote on strict party lines, with multiple Republican senators, including Ranking Member Jeff Sessions (R-Ala.), Orrin Hatch (R-Utah), John Kyl (R-Ariz.), Lindsey Graham (R-S.C.), John Cornyn (R-Tex.), and Tom Coburn (R-Ok.) all speaking out against Liu’s record as an academic with no judicial experience.

Sessions worried about adding Liu to the Ninth Circuit, which he called “one of the most undisciplined courts in America, one of the most activist courts in America.” Hatch questioned whether Liu would put his own views ahead of settled law, saying, “The Constitution must control government, not the other way around.”

Democrats countered that the senate had confirmed several circuit judges nominated by Republican presidents who had academic rather than judicial experience. Sen. Dianne Feinstein, (D-Calif.) noted that neither Judge Michael W. McConnell (who resigned from the Tenth Circuit in August 2009 to become the director of the Stanford Constitutional Law Center) and J. Harvie Wilkinson III (who taught law at the University of Virginia and edited the Norfolk Virginian-Pilot‘s editorial page for three years before President Reagan appointed him to the Fourth Circuit in 1984) had any judicial experience before becoming appeallate judges.

The discussion of Liu’s credentials offers an interesting prelude to the confirmation hearings of Elena Kagan, President Obama’s nominee to replace retiring Associate Justice John Paul  Stevens on the U.S. Supreme Court. Although Kagan is expected to be confirmed without too much difficulty, oppenents to her nomination are likely to raise the same issues about her academic, rather than judicial, experience.

Booth Goodwin on Senate Judiciary’s Thursday agenda

R. Booth Goodwin II, who was nominated by President Obama to be the U.S. Attorney for the Southern District of West Virginia on Jan. 20, is on the agenda for Thursday’s business meeting of the Senate Judiciary Committee.

If Goodwin’s confirmation goes smoothly, he will become the first nominated and confirmed U.S. Attorney in the Southern District since Kasey Warner left the office under a cloud of speculation in 2005.

Goodwin is the son of Joseph R. Goodwin, the district’s chief federal judge. Judge Goodwin told the Gazette in January that he will no longer hear criminal cases if his son is the district attorney. The judge has already recused himself from any cases handled by his son or the economic crimes section, which Booth Goodwin has headed for the past two years.

Two other West Virginia nominations are also on Thursday’s agenda: John Foster, to be U.S. Marshal for the Southern District, and Gary M. Gaskins, to be U.S. Marshal for the Northern District.

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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Judicial nominees: 2012 and beyond?

That’s the time frame that Senate Republicans are using, according to Sen. Mark Begich, D-Alaska, one of several Democratic senators who took to the Senate floor on Tuesday to decry the pace of judicial confirmations. Here’s what Begich said:

The problem and the cynicism of Republican obstructionism is seen nowhere as obviously as in the judiciary. There are currently 103 federal judge vacancies. Several nominees reported out of the Judiciary Committee have been denied votes in the Senate by Republican obstructionism for almost 200 days. In some cases the judicial seat to be filled has been vacant for years. It is clear that—even if they are in denial about who was elected in 2008—our Republican colleagues have their sights set on 2012 and beyond, when they hope to have a huge number of federal court vacancies to be filled by a President more to their liking.

Apparently, being forced to invoke cloture over Virginia Supreme Court Justice Barbara Milano Keenan, who was then confirmed for a seat on the U.S. Court of Appeals for the 4th Circuit by a vote of 99-0, has rubbed a few senators the wrong way. More from Tuesday, from Virginia Sen. Mark Warner:

Justice Keenan was filibustered, in effect, because one Senator placed a hold on her. Consequently, cloture had to be filed. That was despite the strong endorsement Justice Keenan had received from our new Republican governor, Governor McDonnell. I appreciate his support of Justice Keenan. A funny thing happened when we forced the vote both on cloture and the nomination: She was confirmed unanimously. Filibustering a nominee who gets a unanimous vote, something is not right with that. That is not the way this body is supposed to work.

And North Carolina Sen. Kay Hagan:

In fact, there are two judicial nominees on the calendar from North Carolina who would be easily confirmed should they come up with for a vote, Jim Wynn and Al Diaz, nominees for the Fourth Circuit Court of Appeals. They were both approved by the Senate Judiciary Committee in January. But truth be told, we have not just been waiting since January, we have been waiting since 1994. There has been an opening for a North Carolina judge on the Fourth Circuit since 1994. Partisan politics has gotten in the way of filling that vacancy time and again. Finally, we have not one but two qualified judges, supported by both myself and Senator Burr. Let’s bring them up for a vote

And Minnesota Sen. Al Franken:

[Keenan] was then confirmed unanimously, 99 to 0. Yet we are forced to vote for a filibuster. That is nuts. This is a perversion of the filibuster and a perversion of the role of the Senate. It used to be the filibuster was reserved for matters of great principle. Today it has become a way to play out the clock. Some of my colleagues seem more interested in using every procedural method possible to keep the Senate from doing anything then they are in creating jobs or helping Americans struggling in a difficult economy. They seem to actually want the government to fail. Why else delay things you actually agree with?… Let’s give the executive branch and the judicial branch the people they need so we can help government function in the way it is supposed to and reassure Americans that government does work for them.

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