The Battle Lines are Drawn: J.A.I.L. versus The Foreign Power
A Power Foreign to Our Constitution
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The Selling of the Judiciary
Brennan Center For Justice at New York University School of Law O'Connor & Breyer on Judicial Independence
Retired Supreme Court Justice Sandra Day O'Connor encouraged her staff to enjoy whitewater rafting, Mexican take-out brunch and tours of the Smithsonian. Justice Stephen Breyer loves to read French manuscripts and cultivated his distaste for footnotes during his clerkship to Arthur Goldberg. Such details were plentiful as Professor John Feerick introduced Justice O'Connor and her former colleague Justice Breyer to a well-heeled audience of lawyers and law students at Fordham Law School yesterday morning.
The two justices, and co-hosts of the day's symposium, sat together at a small table for their introductory panel, "Judicial Independence and Impartiality." Sandra Day O'Connor, dressed in a violet suit with gold buttons, her blonde hair now a shock of snowy white, frowned as she tried to twist the top off her water bottle, then leaned over towards Breyer and held it out to him. He wordlessly took it, unscrewed the top, and handed it back.
Sally Rider, Director of the William Rehnquist Center at the University of Arizona, kicked things off with a series of questions. Why, she asked O'Connor, did she decide to convene this conference on judicial independence in the first place?
O'Connor said she remembered seeing "Impeach Earl Warren" signs in New Mexico and Arizona when she was growing up, and said that in her final years on the Supreme Court, attacks on judges increased, including proposals for mass impeachments of judges involved in the Terri Schiavo case, or proposals to cut judicial terms short, or a particularly disconcerting movement towards "Jail4Judges," a campaign to allow citizen panels to review rulings from the bench, with the ability to even imprison—as the name tantalizingly implies—those who made bad decisions. These developments were "very depressing," she said, and so she decided to use her retirement to call attention to these attacks on judges.
"An independent judiciary is an essential bedrock principle, and we're losing it." The reason was in part the fact that civics and government are not a requirement for high school graduation. "One third of Americans can't name the three branches of government, but two thirds can name a judge on American Idol!"
Money has been pouring in to state judicial elections in recent years, including races for State Supreme Court justices. A 2004 campaign for a seat on the Illinois Supreme Court brought in a record-setting $9.3 million in political contributions, including hundreds of thousands of dollars from State Farm, a company with a case pending before the court. And just recently, Wisconsin voters were subjected to over 11,000 televised campaign ads in the weeks before their state's Supreme Court race, over ninety percent of which were purchased by special interest groups (racking up a bill of well over 3.6 million dollars). Said O'Connor, "We put cash in the courtrooms, and it's just wrong." She then pointed to the room of lawyers and students. "You should take this seriously." (A later panel backed up O'Connor's concerns. New York Times legal correspondent Adam Liptak, Brennan Center attorney James Sample and Professor Michael Dimino discussed evidence that judges tend to rule in favor of their campaign contributors.)
She went on. "No other nation in the world elects judges." She pointed to Georgina Woods, the chief justice of Ghana, sitting in the front row, as if to illustrate her point.
"Why are we tolerating this? What are we going to do about it?" Then, seeming to remember that the initial question posed to her several minutes before was "why did you convene this conference," she added, "That's why," and sat back in her chair. The audience laughed and applauded.
Breyer took the floor next. Keeping state courts impartial is a major issue, but try talking about it with people "and they're asleep after five minutes." He recounted a trip to Russia he had made when serving as an appellate judge for the First Circuit after he was appointed by Carter. Meeting with Russian judges from across the country, he was surprised to hear their accounts of "telephone justice," when the party boss calls and tells judges which way to vote. "They asked me, ‘do you have telephone justice in the United States,' and I had to explain to them that no, the President wouldn't call you. He'd be crazy to do that."
More and more people today think that judges make decisions based on politics rather than the law, he added. O'Connor began to interrupt, then changed her mind. "No, no," she said, waving her hand at him, "you tell them."
He continued. "It's extraordinary that three hundred million people have agreed to settle disputes using the law, not sticks and stones on the street, like they do in some places."
Sally Rider asked what people who are concerned about judicial independence can do. "It takes concerned citizens" said O'Connor. And it takes activism from the business community, because "legislators will listen to them more than the average housewife." Breyer said this was a difficult message to get across to people. "That's why the people I like talking to the most are 9th and 10th graders, because they want to know about this stuff."
He encouraged the audience to get involved any way they could—writing to newspapers, or volunteering at schools to talk about the law. "Our method of resolving disputes in this country, what a treasure it is."
"That's a good place to stop," O'Connor nodded. "I totally agree."
New York Times Editorial Observer
The Selling of the Judiciary: Campaign Cash ‘in the Courtroom'
"We put cash in the courtrooms, and it's just wrong," Sandra Day O'Connor, the former Supreme Court justice, declared at the start of a conference in New York last week on a growing threat to judicial independence and integrity: the escalating millions that special interests are pouring into state judicial elections in an effort to buy favorable rulings.
The substance of her remarks was no surprise. Since retiring in 2006, Justice O'Connor has devoted herself to spreading the word about assaults on judicial independence and the bedrock principle of impartial justice — including from big-money state judicial campaigns. Still, it was startling to hear a former member of the nation's highest court speak about the problem in such stark terms. No question, her alarm is well-founded.
Thirty-nine states elect at least some of their judges. On top of the inappropriate judicial involvement in partisan politics, recent years have seen the dawn of a grubby new era of multimillion-dollar campaigns for important state judgeships. They include 15- and 30-second attack ads, a staple of competitive races for top executive and legislative posts. These slugfests are largely underwritten by well-heeled interest groups — including insurance companies, tobacco firms, the building and health care industries, unions and trial lawyers — that have seized upon judicial contests as a promising avenue for influence-peddling.
The implications for the nation's justice system are enormous. About 95 percent of cases are handled by state courts rather than appointed federal judges, notes Justice Stephen Breyer, who appeared at the Fordham Law School conference with his former colleague. Experts expect that 2008 will be another banner year for raucous and expensive judicial races.
The perception that money is corrupting the courts would be damaging enough. But often, it seems, special interests are finding that buying up judges likely to side with them in big-dollar cases is a good investment — the real-life grist for John Grisham's new fictional legal thriller, "The Appeal."
Events this month in Wisconsin and West Virginia only deepen these concerns. On April 1, the first and only African-American member of the Wisconsin Supreme Court, Louis Butler, lost his seat after a nasty, racially charged campaign in which his opponent, Michael Gableman, was aided by a barrage of TV advertising, paid for by the state's largest business lobby.
In West Virginia, meanwhile, the State Supreme Court's handling of a case involving a large coal company, Massey Energy, took on a decidedly farcical flavor. For the second time, the appellate court threw out a $50 million verdict against Massey.
The court decided to rehear the case after photographs publicly surfaced of its chief justice, Elliott Maynard, vacationing in Monte Carlo with Massey's chief executive, Don Blankenship, in 2006, while the matter was pending in the Supreme Court. The chief justice disqualified himself from the rehearing. So did another justice, Larry Starcher, because he had publicly criticized Blankenship and his company. The 3-to-2 outcome in favor of Massey was unchanged from the first round, which might not have been noteworthy except that the deciding vote was cast once again by Justice Brent Benjamin, who declined to recuse himself despite owing his election to the court to more than $3 million spent by Mr. Blankenship.
In response to such travesties, judicial reformers have stepped up their call for public financing and strict fund-raising rules for state judicial contests or a switch to a nonelective merit selection system.
But with states in no rush to make these changes, a new report from the Brennan Center for Justice smartly focuses on an effective if less sweeping antidote that would be more achievable in the short-term: persuading jurisdictions to strengthen their recusal rules.
Surely special interests would be less inclined to invest so heavily in judicial elections if they knew the recipients of their largess likely would be barred from sitting on their cases.
Ron Branson, author of JAIL4Judges, states:
Justice O'Connor comments what is sticking in her craw, "O'Connor said she remembered seeing ... a particularly disconcerting movement towards "href="../../State_Chapters/dc/DC_initiative.doc" target=_blank>Jail4Judges," a campaign to allow citizen panels to review rulings from the bench, with the ability to even imprison—as the name tantalizingly implies—those who made bad decisions."
Justice O'Connor's "finding" is indicative of what is wrong with the judges in this nation. They are incapable of squaring with truth and dealing with the facts before them. The JAIL4Judges Special Grand Jury (Judicial Accountability Initiative Law) is not at all about "citizen panels to review rulings from the bench," but rather, as the Initiative states in paragraph 2, "Exclusions of Immunity," to wit, "...no immunities shielding a judge from frivolous and harassing actions shall be construed to extend to any deliberate violation of law, fraud or conspiracy, intentional violation of due process of law, deliberate disregard of material allegations, judicial acts without jurisdiction, blocking of a lawful conclusion of a case, or any deliberate violation of the State Constitution or of the United States."
Since when is punishing a judge for deliberately violating the law and deliberately violating the Constitution an attack upon the "rulings from the bench?" Further, how is it that criminally indicting judges and establishing trials for violating statutory law tantamount to imprisoning judges for making "bad decisions?"
What O'Connor is advocating is that judges should be free to mock the laws, hold contempt for the Constitution, and should never be held accountable. In other words, continue to enjoy the protections of judicial immunity. This is what is sticking in Justice O'Connor's craw, for which she has chosen to now travel this country coast to coast to condemn JAIL4Judges, which seeks to pass Judicial Accountability into law in America.
J.A.I.L. (Judicial Accountability Initiative Law) www.jail4judges.org, has
been in existence for over 12 years, and is in all 50 states and several foreign countries.
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