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Sunday, March 27, 2005

Courts - Judges on the hot seat

"It's The Law, Not the Judge: But These Days the Bench Is the Hot Seat," is the headline to a piece by Jeffrey Rosen in the Sunday Washington Post's Outlook section. It begins:

The response to the rulings in Terri Schiavo's case, following close after the murder of a state judge in Atlanta and a federal judge's family in Chicago, has put not only judicial opinions but judges themselves suddenly under the spotlight. The U.S. Marshals Service reports a "dramatic increase" in threats against federal judicial officials in recent years. And political attacks on judges seem to grow ever more vitriolic. The title of a best-selling new book makes its unsubtle point: "Men in Black: How the Supreme Court Is Destroying America."

Judges today are being catapulted into public view as personalities who seem fair game for attack rather than as anonymous oracles of the law. Part of the reason for this is the legalization of politics: Both liberals and conservatives are increasingly asking judges to decide issues -- from the right to die to presidential elections -- that politics are unable to resolve. As a result, when politicians and disappointed litigants don't like the result of a judicial decision, they feel emboldened to demand a new judge rather than accepting their defeat with good grace. This new personalization of the judiciary poses grave threats to the idea of judicial independence, which judges should try to resist by avoiding the spotlight rather than courting it.

A related AP story, dateline Topeka, Kansas, appears in a number of papers today. Some quotes:
The justices of the Kansas Supreme Court haven't been making many friends lately, certainly not among legislators. First, they knocked down the state's death penalty, then demanded the state spend more money on education.

The reaction at the capitol to the unpopular orders? A proposed constitutional amendment requiring Senate confirmation of those who would sit on the state's highest court - an idea that has found backers in some states where legislators have found themselves upset with the actions of the third branch of government.

"We are seeing across several states and the federal government efforts to limit judicial independence. There is a general perception that when courts make rulings counter to prevailing political sentiments, they are somehow not doing their job," said Rachel Caufield, a Drake University politics professor and research coordinator for the American Judicature Society.

As the story points out, the Kansas selection process is similar to that in Indiana:
For the past 45 years, Kansas justices have been chosen by "merit selection" - designed explicitly to keep politics out of the process. A nonpartisan commission picks three finalists for jobs on the high court, leaving the final choice to the governor.

Voters decide every six years whether a justice remains in office, and no justice has ever failed to receive a two-thirds majority. Similar approaches are used for initial selections of justices in 23 states and for interim appointments in seven others.

That the governor is involved raises the ire of some conservatives, who don't think Democratic Gov. Kathleen Sebelius should have a free hand in shaping the seven-member court of a state that is predominantly Republican. But the court's recent decisions are driving the proposed changes. * * *

"I'm concerned that the tone of some recent decisions has raised real ire in the Legislature and the countryside and we are wise to look for a measured response that makes sense," said Senate Majority Leader Derek Schmidt, R-Independence. "I'm concerned that if we don't do anything, the lid will blow off the powder keg eventually."

The measured response: subjecting the justices to Senate confirmation. Senate leaders say such a constitutional amendment has broad support and could come up for a vote next week. Adoption by the Legislature would put the proposal on the statewide ballot in November 2006.

Meanwhile, the House has its own plan, a proposed amendment requiring nonpartisan elections for justices, which is done in 13 states.

"The idea of merit selection is to squeeze politics out of the judicial selection process to the extent that is feasible to do so," said Allan Sobel, the executive director of the American Judicature Society, which created merit selection in the 1930s. "To call for Senate confirmation is to throw politics back into the mix in a very substantial way."

But University of Pennsylvania law professor Stephen Burbank said unless senators try to influence court decisions, justices should not feel that a confirmation unduly curtails their independence. Seven states with merit selection of justices now require Senate confirmation, and Connecticut requires approval by the House and Senate.

Even so, Burbank said, lawmakers should think twice before making changes. "If it turned out that this was a short term reflection of disagreement with a few decisions in the recent past, it probably would be a mistake," Burbank said.

The piece points out that Kansas is not by itself in proposing changes:
The reaction of Kansas lawmakers to its court's unpopular decisions isn't uncommon in other states that use merit selection. Some Missouri lawmakers want to add Senate confirmation, while others have proposed taking away the power of the courts to determine public school funding. Neither appears to have much political traction.

"If they can remove jurisdiction from one thing, there is no reason why they couldn't do it with everything and not even have courts," said Kansas City, Mo., attorney Joe Whisler.

On Thursday, the Arizona Senate passed and sent to the House a proposed constitutional amendment to give senators the power to reject a governor's judicial appointments.

Indiana senators passed a confirmation plan, but it faces a doubtful future in that state's House. In the South Dakota Legislature, a Senate confirmation plan died this year. In Wyoming, a similar proposal failed to clear a House committee.

"There is this idea that judicial independence is bad because it's supposed to protect bad judges, but in reality judicial independence is about protecting the public," Caufield said. "No judge should ever be beholden to public opinion. They should be beholden to the law."

Indiana's proposal is, of course, SJR 1, about which the ILB has posted six earlier entries, including this most recent one from March 21st.* However, I am unaware of what are "the unpopular decisions" in Indiana that this proposed constitutional amendment is designed to counter. Or is it intended as a preemptive measure? Or a warning shot? Whatever, it passed the Indiana Senate by a vote of 33 to 16. Access the rollcall here. It was assigned to the House Judiciary Committee on March 14th.
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* To find the other entries, type "SJR 1" with the quotes in the search box in the right column.

Posted by Marcia Oddi on March 27, 2005 08:23 AM
Posted to Indiana Courts