Sustained Outrage

Citizens United ruling issued by Supreme Court

39197024.jpgThe U.S. Supreme Court rolled back limits on campaign spending by corporations and unions in its 5-4 decision in Citizens United vs. Federal Elections Commission, published today.

SCOTUSblog has posted a helpful summary of coverage and reactions here.

As I’ve noted before, West Virginia has been trying to align its electioneering laws with the latest Supreme Court rulings. The last round of changes implemented by the Legislature resulted in successful challenges in federal court in 2008 from West Virginians for Life and the Center for Individual Freedom.

Third-party campaign spending in West Virginia has attracted national attention and resulted in a previous opinion by the Supreme Court. Stay tuned to see the impact of today’s game-changing ruling. As Monty Burns, “The Simpsons” resident corporate magnate, might say, Release the hounds!

Albert Diaz and James A. Wynn Jr., the two North Carolina judges nominated to the U.S. Court of Appeals for the 4th Circuit, have been held over by the Senate Judiciary Committee during today’s business meeting.

Both judges appeared before the committee on Dec. 16, when their home-state senators, Democrat Kay Hagan and Republican Richard Burr, both urged the committee to act quickly to confirm Wynn and Diaz and fill two of the four openings on the 15-seat 4th Circuit.

Burr and Hagan’s entreaties notwithstanding, holding over nominations for at least a week has become standard operating procedure for the judiciary committee, even for candidates with bipartisan support. So during today’s meeting, O. Rogeriee Thompson, a federal judge from Rhode Island who’s been nominated for the 1st Circuit, passed out of committee on a voice vote. Naturally, Thompson was held over at the previous business meeting on Dec. 17.

Caperton, recusal and judicial elections

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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Judicial nominations: “Partisan political warfare”?

That’s how Sen. Arlen Specter (D-Pa.) sees it. Speaking Tuesday in support of Indiana U.S. District Judge David F. Hamilton‘s nomination to the U.S. Court of Appeals for the Seventh Circuit, Specter said:

arlenspecter.jpgSpeaking candidly, perhaps bluntly, Judge Hamilton is a pawn in partisan political warfare. That is the long and short of it. This is the 90th filibuster in the past several months. This follows a pattern, regrettably, that goes back almost two decades, when both sides, Democrats and Republicans at various times, have engaged in filibusters against judicial nominees where there was no justification to do so. It occurred extensively during the Clinton administration. At that time, on the other side of the aisle, I supported many of President Clinton’s nominees. It occurred during the Bush administration, when I chaired the Judiciary Committee, and there were repeated filibusters by Democrats against President Bush’s nominees.

At that time, this Chamber was almost torn apart with the ferocity and intensity of the partisanship, with serious consideration being given to what was called the nuclear or constitutional option, when there was serious consideration given to altering the traditional requirement of 60 votes to end a filibuster. There was a tactic devised to challenge the ruling of the Chair, which could be overruled by or upheld by only 51 votes, and thereby move the judicial nominees without the traditional 60 votes. Fortunately, sanity and tradition prevailed and we worked out a compromise with the so-called Gang of 14 to confirm some and to reject others. Now we find the pattern continues.

It is my hope that at some point we can declare a truce, an armistice, and stop the partisan political warfare. The nomination of Judge Hamilton would be a good occasion to do that. 

Well, there was no truce.

On Tuesday, Republicans tried unsuccessfully to filibuster Hamilton’s nomination, which prompted the Washington Post‘s Dana Milbank to observe: “When you’re in politics, a certain amount of hypocrisy comes with the job. Still, what happened on the Senate floor Tuesday stretched even the senatorial capacity to suspend shame to new levels of elasticity.”

And on Thursday, in a highly partisan vote, the Senate confirmed Hamilton by a 59-39 margin. The only Republican to vote for Hamilton was Sen. Richard Luger of Indiana, who, along with his Democratic colleague Evan Bayh, recommended Hamilton in the first place.

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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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Shelters for battered women discriminatory, judge rules

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.