Missouri Plan Escapes Attack in its Own Backyard

A decisive majority of the Missouri House voted recently to reject an effort to politicize the state’s first-in-the-nation model system of judicial selection. By a bipartisan vote of 83-69, Missouri’s state house gave thumbs-down to a proposed amendment to the state’s constitution that would have put the power to pick judges squarely in the hands of the legislative and executive branches of government.  The state house’s rejection of the proposal culminates a long and aggressive campaign against the third branch in Missouri -- for now. A broad-based coalition, built by Missourians for Fair and Impartial Courts, helped demonstrate to the legislature that Missouri voters were not supportive of playing politics with the courts. In December of 2007, Justice at Stake commissioned public opinion research by Public Opinion Strategies that clearly demonstrated an "ain't broke, don't fix it" attitude across the state toward judicial selection.

May Primary in West Virginia Could Be Raucous

After a multi-million dollar campaign in Wisconsin this spring, judicial election observers are now warily watching developments in West Virginia’s May 13 primary.  The last West Virginia Supreme Court campaign, in 2004, was a multi-million dollar fiasco that ended up on the front page of the New York Times for its strident negativity.  This year, two seats on the five-member court are on the ballot.  One of the contenders is Chief Justice Elliot Maynard, who made national news earlier this year for failing to step aside in a case brought by an energy executive he had vacationed with on the French Riviera.  To add to the campaign hurly-burly, recently a federal court blocked enforcement of a new West Virginia law designed to provide the state’s voters with information about the groups behind “independent” TV ads.

Presidential Candidates On Pending Judicial Nominations

In response to a query from Senator Arlen Specter, the presidential candidates have written letters staking out their positions on proposed petitions to move pending judicial nominations to the Senate floor.  Citing her “tremendous respect for the Judiciary Committee and its jurisdiction,” Senator Clinton said, “I do not believe that taking the unprecedented step of filing a petition to discharge the nominations of Article III judges from the Judiciary Committee is warranted.”  Senator McCain wrote that he hoped the Committee would approve Specter’s discharge petition: “Such partisan gridlock only serves to harm all Americans who seek justice in our courts only to find our courts understaffed.”  Senator Obama referenced his “great respect for the Senate’s constitutional advice and consent role in the confirmation of these judges,” and like Clinton argued for a bipartisan solution.

Are Virginia Judges Becoming Political Pawns?

Virginia is one of only two states where the legislature appoints judges (South Carolina is the other).  The state’s system has recently come under increasing scrutiny: is partisanship subjecting the state’s judiciary to political horse-trading?  A recent story in the Bristol News provides some recent examples indicating some judges think so.  A political fracas in the Norfolk area has also caught the eyes of some political observers:  As the Virginian-Pilot recently noted: “Disagreements over a handful of bench assignments escalated this winter as warring lawmakers retaliated against each other by withholding approval for non-controversial candidates….the debacle erodes public trust in the state’s system for selecting judges.….If lawmakers want to retain that responsibility, however, they must prove they are still capable of doing the job.”  A recent poll conducted by the Supreme Court of Virginia found that few believe “courts are not influenced by political considerations."

Congressional Update

On April 24, the “State Secrets Protection Act” (S 2533), was reported out of the Senate Judiciary Committee with bipartisan support.  According to Senator Kennedy, the Act “provides detailed guidance to the federal courts, bringing clarity, predictability, and fairness to their review of assertions of the privilege.” The Act would provide uniform procedures and codify “best practices” for invoking secrecy, require judges to review actual evidence; forbid dismissal of cases at the pleadings stage; require the government to produce unclassified or redacted versions of sensitive evidence; put in place security procedures to avoid leaks; and provide Congressional oversight.  Further floor action in the Senate is not expected this year; Attorney General Mukasey expressed opposition to the bill, indicating that he would urge the President to veto it.  (The American Constitution Society recently sponsored a panel on the topic.)