The StandDown Texas Project

Politics & Capital Punishment in Kansas

The Topeka Capital-Journal reports, "Former D.A. criticizes Brownback ad depicting Carr brothers," by Tim Carpenter.  Here's an extended excerpt from the beginning:

The district attorney who prosecuted Sedgwick County’s notorious Carr brothers for murder condemned on Wednesday a new campaign advertisement from Gov. Sam Brownback that pivots on the case in a bid to weaken support for Democratic gubernatorial candidate Paul Davis.

The spot from Brownback’s campaign released Tuesday questioned the Kansas Supreme Court’s decision overturning death penalty sentences for Reginald and Jonathan Carr, who were convicted in the 2000 slayings of five people in Wichita.

The GOP governor said the commercial was designed to inform voters that Davis would appoint high court justices willing to impose on Kansans their personal views of capital punishment.

Nola Foulston, former Sedgwick County district attorney, said in a statement that use of the Carr brothers’ murders as a political wedge by Brownback’s campaign was damaging to victims’ families and could be viewed as unprofessional conduct by an attorney.

“This case has devastated our community for almost 14 years,” said Foulston, a Democrat who retired from the prosecutor’s office in 2013. “It is beyond disgraceful that Sam Brownback would exploit this tragedy and make the victims’ families relive that horrific crime every time they turn on their television just for the sake of getting re-elected."

Earlier coverage from Kansas begins at the link.  Related posts are in the politics category index.

A New Initiative From Sandra Day O'Connor

"O'Connor Helps Launch New Initiative Against Judicial Elections," ," is the title of Jordan Weissmann's National Law Journal report.

Since retiring from the high bench, former U.S. Supreme Court Justice Sandra Day O'Connor has repeatedly advocated against the use of elections to pick state judges. Now she is teaming with a center at the University of Denver to try to add some political teeth to her efforts.

On Thursday, the Institute for the Advancement of the American Legal System announced the creation of the O'Connor Judicial Selection Initiative, a project that will assist state level efforts to move away from judicial elections.

The institute, founded in 2006 by former Colorado Supreme Court Justice Rebecca Love Kourlis, will devote a full-time director to the project, backed by the institute's 10-person staff. The judicial selection initiative will also be aided by an 11-member advisory commission, which O'Connor will chair.

O'Connor said the initiative would provide "information and useful support" to states considering a move away from judicial elections.

"No other nation in the world elects their judges in popular elections," O'Connor said. "We are alone in that regard."

Calling the initiative a "think-do tank," Kourlis said the initiative was about moving beyond public education efforts. "This is all about, OK, in this particular state, what do we need to do to build a majority," said Kourlis, who is executive director of the institute.

She said its first major test would be in Nevada, where a proposed constitutional amendment would replace judicial elections with merit-based selection.

And:

The advisory committee includes:

• Chairwoman: Justice Sandra Day O'Connor (retired)

• Justice Rebecca Love Kourlis of the Colorado Supreme Court (retired)

• Chief Justice Ruth McGregor of the Arizona Supreme Court (retired)

• Meryl Chertoff, director of the Sandra Day O'Connor Project on the State of the Judiciary at Georgetown Law

• Diane Gates Wallach of Cody Resources, liaison to the institute's board

• Mary Wilson, president of the League of Women Voters

• Chief Justice Wallace Jefferson of the Texas Supreme Court

• Chief Justice Thomas Moyer of the Ohio Supreme Court

• Ramona Romero, corporate counsel, logistics and energy, at DuPont

• Larry Thompson of PepsiCo

• H. Thomas Wells, past president of the American Bar Association

An Interview With Sandra Day O'Connor

The Daily Beast today has "A Justice Reflects."  SDO was interviewed by Walter Isaccson, the CEO of the Aspen Institute, author, and former journalist.  Here's an excerpt:

Are you happy that a woman, Sonia Sotomayor, has been nominated to fill the latest vacancy on the Supreme Court?

I should say so. I was disappointed when I stepped down that I wasn’t replaced by a woman. It’s important for people to look around and see that women, who make up slightly more than 50 percent of the population, are represented on the court.

Judge Sotomayor’s supporters say that her background and life story would make her a good addition to the court. Should such things matter in picking a justice?

We’re all creatures of our upbringing. We bring whatever we are as people to a job like the Supreme Court. We have our life experiences. For example, for me it was growing up on a remote ranch in the West. If something broke, you’d have to fix it yourself. The solution didn’t always have to look beautiful, but it had to work. So that made me a little more pragmatic than some other justices. I liked to find solutions that would work.

You were the last elected official to serve on the court. You were the Republican leader in the Arizona state Senate, and you served in all three branches of state government. Was that important to your work on the High Court?

Absolutely. And here’s something I want to emphasize. It’s important for the Supreme Court to have a broader set of life experiences than just people who have served as judges. Judge Sotomayor’s appointment would mean that all nine justices are products of the federal courts of appeals. It used to not be that way. I was from state government. William Rehnquist had never been a judge before he was appointed to the Supreme Court. Lewis Powell had never been a judge. But they had broad real-life experiences, and I thought that helped make them good justices. In years past, you always had people on the court who had not spent their entire career as judges.

Do you think empathy is an important quality for a justice, as President Obama has said?

I’m not quite sure what that means. I have always tried to set aside emotional feelings when deciding a case. When you’re deciding an abstract principle, I don’t think it’s helpful to have an emotional attachment. But you do have to have an understanding of how some rule you make will apply to people in the real world. I think that there should be an awareness of the real-world consequences of the principles of the law you apply.

 Justice O'Connor is one of the speakers at the Aspen Ideas Festival,which continues through July 5; more on the program at the link.

When Judges Behave Badly

That's the title of Dahlia Lithwick's article in the March 9 edition of Newsweek.  It's subtitled, "Judges are not gods. But we must trust them to do their jobs, or do away with the institution itself."

February was a spectacularly bad month for the judging business. Last week Samuel Kent, a federal district judge in Texas, pleaded guilty to obstruction-of-justice charges in exchange for the state's dropping sex-crime charges. Kent may go to prison for three years for groping female subordinates, and there is talk in the Senate of his impeachment. Then Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, was charged by her state's Commission on Judicial Conduct with five counts of violating her duty and discrediting the court.

Keller made national headlines two years ago for ordering the courthouse closed as lawyers for a death-row inmate scrambled to file a last-minute appeal, based on developments that day at the U.S. Supreme Court. Their client Michael Richard was executed, despite the fact that the Supreme Court granted another prisoner a stay on the same grounds sought by Richard.

Who is watching over the judiciary? Why do we give them such extraordinary power over our lives, then leave them to police themselves until and unless they actually break the law? This week the Supreme Court hears an important case about judging the judges: Brent Benjamin, chief justice of the West Virginia Supreme Court, refused to remove himself from a case despite the fact that one of the parties—the CEO of a coal-mining company—had contributed $3 million of his own money to Benjamin's judicial election campaign. (Benjamin later voted in favor of the coal company.) The high court must now address itself to questions of whether and when the out-of-control campaign spending in states that elect judges creates an "appearance of bias" on the bench. The rules about when judges are biased are in dire need of clarification.

And:

Efforts to control the judiciary often run afoul of the ideal of judicial independence. Whenever the public attempts to tell judges or justices how to monitor their conduct, they run headlong into the argument that judges warrant special deference because what they do transcends politics and public opinion. That's why an attempt last week by a group of prominent academics and practitioners to manhandle the justices of the Supreme Court into line will prove futile. A group of 33 prominent legal thinkers sent a letter to Attorney General Eric Holder Jr. and ranking members of the Senate Judiciary Committee, proposing Supreme Court reforms that would bar justices from making their own calls about retirement (they would be demoted after 18-year terms and the chief justice would serve only seven years). Justices would lose the power to decide for themselves if they are too sick or ill to serve, as well as the authority to decide which cases they would hear each term. Since the Constitution provides that the justices shall hold office "during good behavior," these attempts to cut short their careers and pump up their caseloads will likely go ignored.

This is why, when Americans of every stripe bicker and advocate for greater control over the judiciary, judges hear the sound of crickets chirping. And perhaps this is what they should hear. In the appalling cases, like Judge Kent's sexual-harassment charges, they should be disciplined. But the problem is that mixed in with legitimate grievances about judges, there are often many sore losers or litigants who didn't get what they wanted.

Judges are not gods. But we must be honest enough to admit that what looks like bias and corruption to us might just be a fallible human being doing her job. If we create too many systems that monitor the judiciary, we are really saying that we trust their judgment only when they agree with us. We need to separate the real problems of policing the judiciary from the generalized griping that they are old or elitist or out of touch. And in the end, to paraphrase Scalia, we must trust the judges to judge, or do away with the institution altogether.

A similar version appears at Slate.com as, "Lest Ye Be Judged."

Also in Ohio

AP reports, "Ohio court reprimands judge in death penalty case," via Google News.

The Ohio Supreme Court has reprimanded a judge and a prosecutor for teaming up to write a death penalty sentencing order.

The discovery of the prosecutor's involvement in writing the order led the court to overturn the sentence of the first woman condemned under Ohio's new death penalty law. Donna Roberts, convicted of murdering her ex-husband, has since been resentenced to death.

The court issued public reprimands Thursday to Judge John Stuard of Trumbull County Common Pleas Court and Chris Becker, an assistant county prosecutor.

The court noted Stuard had a practice of enlisting the county prosecutor's office in drafting sentencing opinions.

"High court reprimands judge, prosecutor," is the report in the Youngstown Vindicator.

The Ohio Supreme Court has given public reprimands to Judge John M. Stuard of Trumbull County Common Pleas Court and Chris Becker, an assistant county prosecutor, for what Judge Stuard said was a common practice in his courtroom.

The high court gave no other sanctions for the misconduct.

The court, in its decision, said Judge Stuard had a practice of enlisting help from the county prosecutor’s office in drafting journal entries in criminal cases.

Specifically, Judge Stuard employed the practice for the sentencing of Donna Roberts of Howland in 2003, when Judge Stuard sentenced her to death for her role in the murder of her ex-husband, Robert Fingerhut, in 2001.

Becker and the judge have said Becker prepared the 17-page sentencing entry, at Judge Stuard’s request.

The entry stated the sentence Roberts would get, some explanation of why and gave some history of the case.

And:

John Coughlan, disciplinary counsel for the Ohio Supreme Court, said the problem with the practice of having the prosecutor prepare the entry was that it constituted ex-parte (meaning one-sided) communications because it excluded defense counsel from being involved.

In this case, the defense team of John B. Juhasz and J. Gerald Ingram were not allowed to participate in the preparation of the sentencing entry because they had not seen it before it was read in court or been told the prosecution was preparing it, Coughlan said.

When Juhasz and Ingram noticed that Ken Bailey, an assistant county prosecutor also involved in the Roberts’ case, had a copy of the sentencing entry while Judge Stuard was reading his ruling during Roberts’ sentencing hearing, the defense lawyers raised an objection, which led to a complaint being filed by the Ohio Supreme Court’s Board of Commissioners on Grievances and Discipline against Judge Stuard, Becker and Bailey.

The Supreme Court dismissed the complaint against Bailey, saying he had not done anything improper.

Stuard, Becker and Bailey testified during a hearing in March before the Board of Commissioners on Grievances Discipline.

I'm informed by a reader in Ohio that:

"Ohio law requires that after a jury returns a death verdict, the trial judge conduct an independent review to determine whether aggravation outweighs mitigation and then impose sentence accordingly.  The judge is required, also, to write an opinion explaining why aggravation does or does not outweigh mitigation."

In Utah

"Shurtleff's plan to cut appeals draws judicial criticism," is Linda Thompson's report in today's Deseret News.

Utah Attorney General Mark Shurtleff said Monday that Utah's court system is so flawed because of seemingly endless appeals from convicts that "there is no death penalty" here.

What that means is no closure for crime victims, he said.

His office is promoting a constitutional amendment that would streamline and put limits on the post-conviction appeals process, which is publicized most often in cases involving death row inmates.

The amendment would give the state Legislature the sole authority to decide which cases could be appealed, except when an individual could present "clear and convincing" evidence that he or she was innocent.

"There must be an end," Shurtleff declared. "When it comes to the most violent crimes, there is no justice in Utah."

However, several legal experts denounced the proposal as so extreme and radical that it would mar the constitution, violate individual rights to due process and undermine the bedrock principle of the separation of powers among the three branches of government: legislative, administrative and judicial.

"This is like doing brain surgery with a meat ax instead of a scalpel," said former Utah Supreme Court Justice Michael Zimmerman. "I have deep concerns about Utah's constitution and the fairness of the process."

"Attorney general seeks a quicker path to the death penalty," is Pamela Manson's report in the Salt Lake Tribune.

Utah has a death penalty only in theory because lengthy appeals prevent the state from carrying out executions, Attorney General Mark Shurtleff said Monday.

So to streamline the process, his office is pushing a constitutional amendment that would give the Legislature, rather than the courts, authority to limit the claims that could be considered in post-conviction relief petitions. The change would apply to these petitions -- which are a type of appeal brought after a conviction and sentence have been upheld -- in all criminal matters, but is aimed particularly at death-penalty cases.

At a presentation at the Capitol to the Commission on Criminal and Juvenile Justice, Barbara Noriega spoke in support of the proposal. Her mother and sister were murdered in 1990 by Von Lester Taylor, who continues to appeal his conviction and death sentence.

And:

However, opponents argued that the proposal could eliminate the ability of judges to consider innocence claims in any criminal case and would upset the balance of powers among the three branches of government.

Second District Judge Jon Memmott, chairman of the advisory Constitutional Revision Commission, worried about an unintended effect on non-death penalty cases. He noted that a constitutional amendment cannot be changed easily "when you get it wrong."

A two-thirds vote by state lawmakers is required to put the measure on the 2010 ballot.

Ten Utah inmates are currently under a death sentence. The dates of their crimes range from 1985 to 2004.

StandDown's state legislation category index is here.

The Charles Hood Case

Charles Hood's case came to a near-boil in June when his June 17 scheduled execution was halted because the death warrant expired before TDCJ could carry out the lethal injunction.  It was the end of a night of frantic legal action.

Today, Steven Kreytak reports, "Death row inmate's lawyers want depositions from judge, prosecutor," on the Austin American-Statesman's Austin Legal blog.

Lawyers for Texas death row inmate Charles Dean Hood, scheduled for execution Sept. 10 despite allegations that the trial judge and prosecutor at his 1990 trial were involved in a secret intimate relationship, hope to secure direct evidence of the affair in a civil rights lawsuit.

Hood’s lawyers said today that they will file a petition in a Collin County court at law asking to take the depositions of former state District Judge Vera Sue Holland and former Collin County District Attorney Tom O’Connell, who have refused to answer questions about any relationship they had in 1990.

Hood’s lawyers claim their relationship violated Hood’s right to a fair and impartial trial and have asked for a new trial.

The petition can be found here.

It is based on rule 202 of the Texas Rules of Civil Procedure, which allow oral or written depositions to be taken before a lawsuit is filed to investigate possible claims.

Under those rules, the court must order a deposition allowed if it finds that allowing the deposition would prevent a failure or delay of justice in an anticipated suit or the likely benefit of allowing the deposition to investigate a potential claim outweighs the burden or expense of the deposition.

AP has, "Inmate's lawyers want to depose ex-judge and D.A.," via the Fort Worth Star-Telegram.

Hood's attorneys contend the alleged relationship between Judge Verla Sue Holland, the judge who presided over Hood's capital murder trial in 1990, and the prosecutor, former Collin County District Attorney Tom O'Connell, tainted the trial.

The now-retired Holland, who in the mid-1990s served as a judge on the Texas Court of Criminal Appeals, and O'Connell, now in private practice, have declined to address the allegations.

"Their strategy of silence is understandable," Hood's lawyers, Gregory Wiercioch and A. Richard Ellis, wrote in a petition asking the Collin County Court at Law to order the meeting. "Proof of an undisclosed intimate relationship could not only result in civil liability, it could also taint the validity of numerous judgments, convictions and sentences in Collin County."

As his scheduled June execution neared, the Court of Criminal Appeals rejected Hood's efforts to appeal on the grounds of the alleged relationship, citing procedural reasons for the rejection but not addressing the merits of the accusations.

Hood's lawyers asked for a hearing on their request, which seeks to depose Holland and O'Connell. The request also seeks letters, cards and gifts they may have exchanged, receipts for any gifts, photos and videos of them together, and e-mails and text messages the two may have sent related to the allegations.

Earlier coverage of the case begins with this post.  Posts from the evening of June 17 are here, here, here, and here.

High Court Caricature

That's the title of the fabulous Ruth Marcus' must-read column in today's Washington Post.  LINK  Here's the beginning.

The court stepped in, summarily overturning laws in 16 states. Tossing aside evidence that the constitutional provision was never intended to apply to the situation at hand, the court instead looked to what it grandly described as the "broader, organic purpose of a constitutional amendment."

Another example of "unelected judges" demonstrating "little regard for the authority of . . . the states" and "even less interest in the will of the people"? Of judges, unconstrained by constitutional text or history, turning to " 'emanations' . . . and other airy constructs the court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning"?

The case is Loving v. Virginia, the 1967 ruling in which a unanimous Supreme Court found that state laws prohibiting interracial marriage violated the constitutional guarantee of equal protection. The decision has been on my mind recently because of the death this month of Mildred Loving, the African American woman who dared to marry a white man and try to live with him in Virginia. Last week, I happened to listen to C-SPAN's riveting rebroadcast of the oral argument.

A few days before that program, John McCain delivered the tired broadside, quoted above, against activist judges. As my car radio crackled with the tinny voice of Virginia's lawyer urging the court not to usurp the state's "legitimate legislative objective of preventing the sociological and psychological evils which attend interracial marriages," I could not help but recall McCain's critique.

I'm not suggesting for a second that the presumptive Republican nominee opposes interracial marriage or disagrees with the ruling. My point, rather, is that the debate over the role of the judiciary deserves a far more nuanced approach than McCain's caricature of "the common and systematic abuse of our federal courts by the people we entrust with judicial power."

Linda Campbell on Judges and Policitics

Fort Worth Star-Telegram editorial board member and columnist Linda Campbell has, "McCain's half-truths about judges."

John McCain ought to be ashamed of himself.

In his most pandering performance since speaking at Jerry Falwell's Liberty University to prove that he could schmooze even with agents of intolerance as long as they bring along Republican votes, McCain whacked away this week at that threadbare straw man, the "activist judge."

Speaking at Wake Forest University, he harrumphed about "the common and systematic abuse of our federal courts by the people we entrust with judicial power."

"For decades now," he claimed, "some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges."

And then he complained about lifetime-tenured judges who "show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people."

Well, here are some inconvenient details.

State Legislative Round-Up

Let's start with a Marcia Coyle's report in the upcoming National Law Journal, "'Racial impact statements' a reality in Iowa."

Iowa recently became the first state to enact a law requiring all new sentencing legislation to be examined for its racial and ethnic impact before passage — what some sentencing experts hope is the beginning of a trend.

Last year, Oregon was the first state to introduce legislation requiring so-called "racial impact statements," but it did not reach final passage.

Other bills are pending in Illinois and Connecticut.

"Oregon's was the first of a kind, so it's not unusual that it wouldn't make it through the first time," said Marc Mauer, executive director of The Sentencing Project, a strong proponent of the legislation. "But the sponsor is very enthusiastic and we're assuming he will do it again next year."

Mauer's organization issued a national report last summer on the racial disparity in state prison and jail populations. Iowa prison and jails had the highest rate of racial disparity in the nation, according to the report.

Currently, 2% of Iowa's population is African-American, but 24% of the state's prison population is African-American.

And nearly 40% of all residents at state juvenile detention centers are minorities. Of that number, a full two-thirds are African-American, according to the Iowa governor's office.

"To their credit, Iowa policymakers, the press and the community rose up to say this is a problem," said Mauer. "It was overwhelmingly a bipartisan move with support from the governor."

The new Iowa law requires a "minority impact statement" for any legislation related to a public offense, sentencing, or parole and probation procedures. The law also requires that any application for a grant from a state agency must also include a minority impact statement.

The Charlotte Sun-Herald carries an AP report on Florida legislation, "Governor awaits bill for life sentencing punishment for killing cops."

A person convicted of killing or attempting to kill a law enforcement officer would serve life behind bars under a bill headed to the governor.

Officers already have enhanced protections under Florida law, but lawmakers say additional provisions are needed to combat a spate of violence against them. Opponents of the legislation have argued it is unnecessary because of already long sentences for the majority of offenders.

Under the proposed legislation, the penalty of life in prison would only be imposed if the death penalty is not. And the increases in some sentences would be stiff. Sentences currently range from approximately seven years to life depending on whether the charge against the person is murder or attempted murder and in what degree.

The bill (HB 321) passed the Senate unanimously Wednesday and had already passed the House.

Also from Florida, we have an OpEd by former judge, Ben Overton, "Funding the judiciary is a constitutional obligation ," via the Tallahassee Democrat.

As former judges and chief justices of the Florida Supreme Court, Stephen H. Grimes, Major B. Harding, Joseph W. Hatchett, Leander J. Shaw Jr., and myself have had significant experience in judicial administration. Because of that experience, we share a deep concern that Florida's courts are in danger of not being properly funded by the state Legislature, as is required by the Florida Constitution.

And:

For example, mortgage foreclosures soared 97 percent over last 12 months. Banks, title companies, real estate brokers — and all related industries — need courts open and operating at full capacity. So do homeowners and tenants.

But the courts can be cut only so far before cutting into the public's constitutional rights. They clearly do not have excess judges and staff to deal with an increasing caseload. Florida has only 4.8 judges per 100,000 in population, while the national average is 7.3. Two other death penalty states, Georgia and Texas, have 10.7 and 10 judges per 100,000, respectively.

At the same time, Florida judges and court staff are handling a 17-percent increase in capital murder cases. In addition, property crimes are up 6 percent, small claims cases are up 22 percent, and civil cases below $15,000 are up 17 percent.

We hope it is clear that the courts are not just another state agency. The judiciary is a separate, independent branch of our government that has the primary responsibility to provide all citizens and corporate entities open access to the courts. It is the people's constitutional right that is being enforced.

This fundamental importance was clearly what the framers of our Florida Constitution had in mind when they wrote the provision that makes it a constitutional duty for state lawmakers to fully fund the judiciary — even in times of a revenue shortfall.

The Price of Judicial Independence

The Recorder is one of Law.com's network of legal newspapers, and the California based publication has been giving special attention to the ABA meeting.  Mike McKee reports on a powerful ABA panel, "Judges on ABA Panel Describe Living in Fear, Years After Unpopular Rulings."

More than two years after enraging right-wing groups by ordering Terri Schiavo's feeding tube removed, George Greer still peers over his shoulder nervously at times.

In fact, the Florida judge told a rapt audience Friday at the American Bar Association's annual meeting, he even used an alias when he registered at his San Francisco hotel on this trip.

Two years ago, he said, someone in the Bay Area threatened to kill him over his decision to end life support for the brain-damaged Schiavo. And even though that person was prosecuted and jailed, Greer said, he's taking no chances.

"It is a little unnerving," he said. "I still can't see a strange car come down my street without wondering [who's behind the steering wheel]."

And:

Besides Greer, there was New Jersey Supreme Court Justice Roberto Rivera-Soto, who 10 months ago participated in a ruling saying gay and lesbian couples deserve the same rights as married couples, but stopped short of approving same-sex marriage.

Eileen O'Neill, a former Texas judge who in 1993 held Operation Rescue founder Randall Terry and other anti-abortion activists in contempt for violating an order directing them to quit harassing several Houston-area doctors, was on the panel. And so was former California Supreme Court Justice Cruz Reynoso, kicked off the bench by voters in 1986 along with two other justices for reversing death sentences.

All four spoke about the consequences of their actions, but stood firmly behind them, while fretting somewhat about the political and social pressures facing judges these days. Unstated, but hovering in the ether, was the fact that many judges believe the current presidential administration has exacerbated the problem by blaming unpopular rulings on "activist judges."

"It's not easy being a judge, but one of the things we uphold is the Constitution," Philadelphia-based U.S. District Judge Berle Schiller, chairman of the National Conference of Federal Trial Judges, told the crowd at the start of Friday's seminar. "And all these [four] jurists have been willing to stand up for the Constitution."

At their own risk, one might add.

More Controversy Swirls Around Texas Supreme Court Justice

In 2005, Texas Supreme Court Justice Nathan Hecht spoke up for his friend Harriet Miers after she was nominated to the U.S. Supreme Court.  That brought him an admonishment from the Texas Commission on Judicial Conduct, which was later overturned by a three-judge panel.

Earlier this year, the controversy morphed and erupted as Hecht attempted to re-coup legal fees he had paid defending himself before the Commission.  Two Republican lawmakers, Jeff Wentworth in the Senate and Tony Goolsby in the House, introduced legislation that would have reimbursed Hecht for  the $340,000 he had spent in legal fees.  Both legislators pulled the bills, however, after news articles reported that Hecht had already raised the money through campaign solicitations.

Now the Travis County District Attorney's office is investigating pro bono work done on behalf of Hecht.  The Dallas Morning News has this AP report.

A Travis County prosecutor confirmed that his office is investigating Texas Supreme Court Justice Nathan Hecht for accepting discounted legal fees from a law firm.

    

District Attorney Ronnie Earle said in a letter Tuesday that the matter "has been under review by this office since it came to our attention through news media accounts some time back."

    

A campaign finance watchdog group, Texas Watch, filed a complaint to Mr. Earle's office Tuesday about discounted legal fees that Justice Hecht was charged by the Jackson Walker firm to defend against abuse-of-office charges.

    

Justice Hecht accrued about $440,000 in legal fees in a successful fight against a sanction by the State Commission on Judicial Conduct that alleged he abused his office to promote Harriet Miers for a U.S. Supreme Court seat.

    

In the complaints, Texas Watch alleges that Justice Hecht received a $100,000 discount on his total bills, paying $330,000 to the Dallas law firm.

    

His attorney, Chip Babcock, would not confirm the amount but said he discounted 25 percent of the fees as pro bono, work done for free in the name of the public good.

The Travis County District Attorney has a special unit charged with investigating possible ethics violations by elected and appointed officials.  Earlier coverage is here.

The Attack Ads Will Come to Order

That's the title of Ruth Marcus' latest column in today's Washington Post, and it's focused on judicial elections.  LINK

Modern-day politics as usual? Sadly, yes -- except that the campaign was for chief justice of the Alabama Supreme Court. And while the race was particularly noisy -- almost 18,000 television ads, more than in the three previous elections combined -- it wasn't particularly surprising. Judicial elections have taken on the trappings of ordinary political campaigns, complete with consultants, slick mailings and big media buys. A 2006 Georgia Supreme Court race featured robo-calls by former attorney general John Ashcroft.

Things are getting worse by the election cycle. Television ads ran in 10 of 11 states with contested Supreme Court races, compared with four of 18 states in 2000, according to a report by Justice at Stake, the Brennan Center for Justice and the National Institute on Money in State Politics.

Time was that judicial candidates left the really nasty stuff to outside groups and political parties. In 2006, judicial candidates ran 60 percent of the negative ads, compared with 10 percent two years earlier. At a conference last week by FactCheck.org, campaign consultants reported with satisfaction that their once diffident clients had realized they couldn't hide behind their robes.

"Elections for the judiciary have become like all other elections," said Allan Crow, who helped Georgia Supreme Court Justice Carol Hunstein win reelection. "You either allow the opposition to win by running their negative ads or you fight back."

And:

You might hope that spending by business groups and trial lawyers would at least cancel each other out. But business groups, particularly the U.S. Chamber of Commerce and the National Association of Manufacturers, have become outsize players in judicial campaigns. In 2006, business interests contributed 44 percent of the money raised by state Supreme Court candidates.

The paradox of judicial elections is that voters simultaneously demand this system and distrust it. The Annenberg Public Policy Center found that nearly two in three preferred to elect judges rather than have a merit system in which governors choose from a list developed by a nonpartisan committee. Yet seven in 10 believed that the need to raise campaign funds would affect a judge's rulings. Even without the impact of campaign cash, it's easy to see how judges facing reelection might think twice before issuing a decision that could be fodder for a 30-second spot.

There are some hopeful signs amid the sludge. Judicial candidates raising more money won 68 percent of the time in 2006, down from 85 percent in 2004. Last month, New Mexico followed North Carolina's lead in adopting public financing for judicial campaigns.

More Calls for Judicial Reform

Bruce Davidson, Editorial Page Editor for the San Antonio Express-News, has a column about the need for  - and possibility of - judicial reform in Texas.  LINK

With Republicans still in control of statewide offices, GOP leaders have an opportunity to end partisan judicial sweeps by sending voters a constitutional amendment to create a merit selection/retention election system.

    

Numerous efforts have been made in the past to change the state's system of judicial selection, but they failed. The Texas Republican Party has led the charge to kill reforms.

    

"We support our right to select our judges by a direct vote of the people and oppose all attempts to impose an appointment/retention process," the 2006 Texas GOP platform states.

    

That sounds lofty, but the truth about most judicial elections is that voters don't know jack about the candidates.

    

In Dallas and Houston, so many judicial candidates are on the ballot that voters would need a weekend seminar to gain in-depth knowledge about them.

    

A system that allowed the governor to appoint judges from candidates screened by a diverse committee of lawyers and then let voters have an up-or-down vote after each four-year term would be vastly superior to partisan elections.

Partisan Judicial Elections

As we noted on Wednesday (here), Dallas County saw a profound party flip that changed the face of the local judiciary.  The Dallas Morning News says it's one more reason not to have partisan judicial elections, in the editorial, "Oil, Meet Water: Partisan politics, judicial elections don't mix."  LINK

Things changed overnight in the Dallas County judicial system. But one thing remains consistent: this editorial board's support for ending partisan judicial elections.

In 2001, an editorial on this page said, "The ideal system would provide for the nonpartisan selection and appointment of judges with subsequent retention elections."

In 2003, the last time sensible reform was discussed, we derided Republicans in the Texas House for blocking a new system. We wrote: "There's a better way. Most states use it. It starts with the governor appointing judges. The Senate then confirms them. And voters later keep them or dismiss them in nonpartisan retention elections. In those states, justice is not partisan."

We have stood by this position no matter which way the political winds were blowing. We've even discussed what sort of committee ought to be charged with sifting through judicial applicants and forwarding a handful of names for the governor to choose from. And this year, we opened our minds to yet another reform alternative. In recommending Democrat Emily Tobolowsky over Republican Karen Willcutts, we cited as a key difference between the two Ms. Tobolowsky's support for nonpartisan judicial elections.

Retired Texas Supreme Court Chief Justice Tom Phillips promoted judicial independence and reform during his entire tenure on the Court.  Legislators refused to listen when he was the only Republican on the Court, just as they did when all nine members were Republican. 

Fifth Circuit Judge Says 'No Vengeance"

Today's must-read is a speech delivered by Fifth Circuit Court of Appeals Judge Carolyn Dineen King in Corpus Christi at the annual Red Mass.  It's reprinted in the South Texas Catholic newspaper.  LINK  Two lengthy excerpts are below:

I want to share with you today my concerns about capital punishment. I became a federal judge in 1979, seven years after the Supreme Court effectively struck down all the capital sentencing laws in the nation and three years after the Court took the first steps to approve newly-enacted capital sentencing laws in several states, including Texas. The three states in the Fifth Circuit - Texas, Louisiana, and Mississippi - all have capital sentencing laws, as does the federal government. In my twenty-seven years as a federal judge, I have participated in the disposition of appeals or habeas petitions in scores of capital cases. So my concerns are informed by my experience as a judge. They are also informed by my religious beliefs.

One of my concerns is driven by the way capital sentencing laws have developed during the last 40 years. Let me set out for you the big picture on that development, with a particular focus on Texas law. In the 1960s and 1970s, the nation experienced one of its periodic collective reevaluations of capital sentencing. This particular reevaluation coincided with, or really was a part of, the civil rights movement and its focus on the disparate treatment of black citizens. As respects capital sentences, the available evidence indicated that black defendants were disportionately likely to receive the death penalty when compared to white defendants, and that black defendants, who were uniformly poor, were unable to obtain the same quality of representation as was available to at least some white defendants.

In 1972, in Furman v. Georgia and two companion cases, one from Texas, the Supreme Court effectively struck down all the capital sentencing laws in the nation. But the Court did so in a way that did not bode well for the future. The cases produced nine separate opinions, but no opinion of the Court. Five justices voted to vacate the death penalties imposed in the cases, holding simply that the imposition and carrying out of the death penalty constituted cruel and unusual punishment in violation of the Eighth Amendment to the Constitution. Four justices would have upheld the death penalties. Those justices who voted to vacate the death penalty focused on several factors. Among them were what they perceived to be the arbitrary and capricious manner in which the penalty was applied, with comparatively few defendants eligible for the death penalty receiving it and many defendants, seemingly equally eligible, being spared. Also of concern, as I have mentioned, was the disproportionate representation of black and poor citizens in the group of those who received the death penalty.

Finally, justices focused on the absence of standards governing the discretion which juries employed in assessing the death penalty. The opinions make for interesting reading. Several drew on an earlier Supreme Court case that described [t]he basic concept underlying [the Eighth Amendment] as nothing less than the dignity of man. As Justice Brennan said in his opinion, [t]he State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings. A punishment is 'cruel and unusual,' therefore, if it does not comport with human dignity. He went on to say that the fundamental premise of the [Eighth Amendment is] that even the vilest criminal remains a human being possessed of common human dignity.

And:

Now I want to talk briefly about the Catholic Church's views, and my religious views, about the death penalty. Before I begin, I want to make one point very clear. My religious views play no role, and in my view, can play no role in the judgments I am called upon to make as a judge. I am sworn to uphold the constitution and laws of the United States. Nearly all the death sentences I have reviewed have been state court sentences reaching me by habeas appeals where my only question is whether the state complied with the constitution, as interpreted by the Supreme Court. So that is my only decision.

Until 1995, the Catholic Church took a permissive view about the death penalty. In the 1970's, after Furman, while new capital sentencing laws were under consideration, the Catholic Church and Catholics generally could have made a major contribution to the debate over whether, or how, those laws were to be developed. But the Church and Catholics were silent. When I asked one of my friends, who is a professor of theology at the University of St. Thomas, about that, he said that in view of the Church's rather speckled history, one could understand why the Church might not be out front on this issue. Well, I can't understand it. Redemption is possible, even for the Catholic Church.

Moving ahead, in 1995, Pope John Paul published his encyclical on human life. The Pope begins by reaffirming a traditional moral principle: The commandment 'You shall not kill' has absolute value when it refers to the innocent person. While the right to life is always precious, he mentions two instances when it is not absolute. First, he repeats the Church's common teaching on the right to legitimate self defense. Second, he allows for the possibility of morally legitimate capital punishment. But John Paul states that we ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. He foresees extremely few instances when capital punishment can in fact be justified. He says: Today . . . as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically nonexistent. To summarize, the Church's position is that the state ought not to execute a person unless there is no other way to defend the prison population, guards and inmates, from that person. While there are some capital defendants who are so dangerous that the prison system may be unable to protect itself from them, many defendants who are executed today do not represent threats to an adequate prison system. Yet we continue to execute them.

Catholics, the people of life, have an opportunity to advocate to our legislators changes in our laws that will align them more closely with the moral law. For the solution to the problems that we face with the death penalty is a political one (not a judicial one), and each of us, as a Catholic citizen and voter, is called upon to promote it.

One of the forces that powers the drive for the death penalty, and that is independent of concerns for the protection of society and deterrence, is vengeance or retribution. Defendants are put to death because they deserve it. Death is the only fit punishment for capital crimes and this retributive purpose justifies its infliction. The need for vengeance is particularly strong, and more understandable, in the families of victims. But it permeates the explanations of death penalty adherents. Vengeance was discussed in several of the opinions in Furman, with some justices taking the position that the Eighth Amendment does not require that we renounce vengeance and others saying forthrightly that [r]etaliation, vengeance, and retribution have been roundly condemned as intolerable aspirations for a government in a free society.

Judge Hecht - UPDATED

Texas Supreme Court Justice Nathan Hecht's reprimand has been dismissed.  An AP report is available via the Dallas Morning News website.  LINK

A three-judge panel has dismissed a Texas Supreme Court justice's reprimand for endorsing his friend Harriet Miers after her U.S. Supreme Court nomination.

In a ruling announced Friday, the panel of three appeals court judges said Nathan Hecht did not violate state rules that bar judges from lending their office's prestige to boost the private interests of themselves or others, and from using their names to endorse candidates for office.

The State Commission on Judicial Conduct admonished Hecht in May after two complaints were filed against him. Hecht told White House staff to send him all media inquiries about her career, then campaigned tirelessly for her in about 120 newspaper, radio and television interviews, the commission said.

Mark Greenwald, an attorney for the commission, said the commission expected the outcome and was happy that Hecht had his day in court. But Greenwald said the commission still had no guidance on rules for the conduct of other judges.

Howard Bashman has a link to the 43 page decision here.

A Judge Speaks Out

Maro Robbins of the San Antonio Express-News writes in today's paper about U.S. Bankruptcy Judge Leif Clark's recent e-mail to NPR and possible reverberations.  LINK

Venting in an e-mail to National Public Radio, U.S. Bankruptcy Judge Leif M. Clark last week denounced the recently passed legislation that limits the rights of terror suspects to challenge their detentions and see certain evidence against them.

"These are the tactics of the old Soviet Union, not of a country that stands for freedom and the rule of law," Clark, responding to a NPR discussion of the legislation, opined in the message that was posted in full on the network's Web site and read aloud Thursday on Morning Edition.

The result: Clark's e-mail now is under review by the chief judge of the 5th Circuit Court of Appeals, the tribunal that disciplines federal judicial misconduct in Texas, Louisiana and Mississippi.

The question is whether Clark's message, which identified himself as a federal judge and a teacher of constitutional law, violated rules that forbid jurists from engaging in political activity or otherwise creating doubts about their impartiality.

"How easy would it be for a president to use such a law to make his political enemies simply disappear?" Clark concluded. "Can this be America?"

While judges enjoy the rights to free speech, the federal judiciary's code of conduct limits what they can say and, at the moment, the federal judiciary is under fire for not adequately policing itself. One proposal being discussed in Congress would create an inspector general to police judicial misconduct.

Clark, a former ordained Lutheran minister who used to sport a ponytail, declined comment. As a bankruptcy judge, he doesn't have lifetime appointment and is in the fifth year of a 14-year term.

Judge Clark's complete e-mail is here.

CJ Roberts on Judicial Independence

That's the topic of Tony Mauro's must-read column in Legal Times.  LINK

Chief Justice John Roberts Jr. has made his strongest plea yet for judicial independence, even warning fellow conservatives to back off from attacking judges for unpopular decisions.

Speaking Thursday and Friday before a historic D.C. gathering of federal and state judges, lawyers, academics and business leaders aimed at preserving a "fair and independent" judiciary, Roberts recalled former President Ronald Reagan's definition of a judge's duties.

"The judge's commitment to the preservation of our rights often requires the lonely courage of a patriot," Roberts quoted Reagan as saying 25 years ago. "To the extent that attacks on judicial independence come from conservative quarters, I would commend to those quarters the words of the leading conservative voice of our time."

But Roberts also said attacks on the judiciary are "utterly bipartisan," and a key to warding off such attacks is to use "self-restraint" in decision-making.

"Judges are insulated from political pressure precisely because they are not supposed to be making political decisions but deciding cases according to the rule of law," said Roberts.

Mauro also reports on Attorney General Gonzales comments.  On Friday, we linked you to the initial AP report and Howard Bashman's post with video links. LINK  More of Tony's column is below:

At the same conference, sponsored by Georgetown University and the American Law Institute, Attorney General Alberto Gonzales offered similar remarks, defending the judiciary while warning judges not to overstep their authority.

"It is essential that judges be courageous enough to do the right thing, motivated solely by a respect for the law, undeterred by criticism or the possible outcome of the next election," said Gonzales. But he urged judges to retain "a proper sense of judicial humility."

Though he couched his comments in largely general terms, Gonzales went on to criticize high court rulings that have struck down Bush administration wartime measures. The Constitution gives the courts "relatively few tools" to intervene in military and foreign policy, Gonzales said, adding, "Judges must resist the temptation to supplement those tools based on their own personal views about the wisdom of the policies under review.

More Takes on Judicial Independence

Earlier this week we linked you to Justice O'Connor's OpEd and an AP report of Attorney General Alberto Gonzales remarks on the topic.  Howard Bashman at How Appealing has several links to the program at Georgetown University School of Law which sparked so much of the debate.  This is from Howard's post:

A news release headlined "Fair and Independent Courts: A Conference on the State of the Judiciary" begins, "On September 28, Georgetown University Law Center welcomed retired Justice Sandra Day O'Connor, six sitting Supreme Court justices, and hundreds of other nationally recognized leaders in law, government, business, journalism, academia and the nonprofit sector when it hosted and co-sponsored a unique two-day conference that addressed the independence of the nation's courts."

You can access the conference program, with links to video of various presentations, at this link.

AG's Take on Judicial Independence

Wednesday, we linked you to Justice O'Connor's OpEd on Judicial Independence.  LINK  Earlier today, Attorney General Gonzales entered the fray with a speech at Georgetown University School of Law.  LINK

''Judges must resist the temptation to supplement those tools based on their own personal views about the wisdom of the policies under review,'' Gonzales said.

And he said the independence of federal judges, who are appointed for life, ''has never meant, and should never mean, that judges or their decisions should be immune'' from public criticism.

''Respectfully, when courts issue decisions that overturn long-standing traditions or policies without proper support in text or precedent, they cannot -- and should not -- be shielded from criticism,'' Gonzales said. ''A proper sense of judicial humility requires judges to keep in mind the institutional limitations of the judiciary and the duties expressly assigned by the Constitution to the more politically accountable branches.''

His audience included legal scholars and judges, including Justice Clarence Thomas, one of the Bush administration's most reliable supporters on the Supreme Court.

The Threat to Judicial Independence

That's the title of an OpEd essay in today's Wall Street Journal by retired Supreme Court Justice Sandra Day O'Connor.  LINK

Troublingly, attacks on the judiciary are now being launched by judges themselves. Earlier this year, Alabama Supreme Court Justice Tom Parker excoriated his colleagues for faithfully applying the Supreme Court's precedent in Roper v. Simmons, which prohibited imposition of the death penalty for crimes committed by minors. Offering a bold reinterpretation of the Constitution's supremacy clause, Justice Parker advised state judges to avoid following Supreme Court opinions "simply because they are 'precedents.'" Justice Parker supported his criticism of "activist federal judges" by asserting that "the liberals on the U.S. Supreme Court . . . look down on the pro-family policies, Southern heritage, evangelical Christianity, and other blessings of our great state."

It should come as no surprise that the increased scapegoating of the judiciary has coincided with an increase in anger directed toward individual judges. In the last decade, threats and inappropriate communications directed toward the federal bench have more than quadrupled. According to the U.S. Marshals Service, complaints about such behavior were being logged at a record-setting pace this year. And while it is encouraging that Congress recently set aside funds for federal judges to have home security systems installed, it is deeply dispiriting that the demand for the systems among the judges was so high. Judge David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit was quite right when he observed, "Judges must be free to make judicial decisions without the fear of physical harm to themselves or to members of their families."

Given the escalating criticism that is leveled at judges, it seems appropriate to bear in mind the reasons that the Framers initially established an independent judicial branch. In Federalist No. 78, Alexander Hamilton explained why, in our constitutional system, "the complete independence of the courts of justice is peculiarly essential." Hamilton contended that the judiciary needed to be distinct from the legislative and executive branches because that was the best way to guarantee "a steady, upright, and impartial administration of the laws." Hamilton also believed that judicial independence was necessary in order to safeguard against "injury of the private rights of particular classes of citizens, by unjust and partial laws." It is well worth remembering that, far more often than not in modern times, the judiciary has admirably performed these two vital tasks: checking the other two branches and protecting minority rights.

An independent judiciary does not mean, of course, that it is somehow improper to criticize judicial decisions. To the contrary, it is a healthy sign for democracy that the public is engaged with the workings of the judicial system. Judges can -- and do -- sometimes render erroneous decisions, but that is why appeals are allowed to higher courts. Moreover, judges can be -- and are -- subjected to discipline for legitimate reasons. Members of the judiciary cannot sincerely believe that they should be regarded as above the very laws that they are charged with interpreting. Ours is, after all, a nation of laws, not men -- or even women.

Nonetheless, we must be more vigilant in making sure that criticism does not cross over into intimidation. Judges and lawyers certainly play essential roles in opposing attacks on the judiciary. Indeed, later this week, I -- along with Justice Stephen Breyer -- am co-chairing a conference on judicial independence at Georgetown University Law Center. But the legal community needs help from other sectors of society to ensure that the current mood of cynicism does not end up compromising the rule of law. This includes members of the business community. Adam Smith, writing in "The Wealth of Nations," well understood the importance of an independent judiciary: "[U]pon the impartial administration of justice depends the liberty of every individual, the sense which he has of his own security." Without judicial independence, Smith warned, "it is scarce[ly] possible that justice should not frequently be sacrificed to what is vulgarly called politics."

More broadly, of course, all of society has a keen interest in countering threats to judicial independence. Judges who are afraid -- whether they fear for their jobs or fear for their lives -- cannot adequately fulfill the considerable responsibilities that the position demands. In these challenging and difficult times, we must recommit ourselves to maintaining the independent judiciary that the Framers sought to establish.

A hat tip to Howard Bashman at How Appealing.

Chief Justices Sound Alarm on Judicial Elections

That's the title of Tony Mauro's column in Legal Times today.  LINK

The nation's state chief justices are launching a campaign to remind voters of what used to be obvious: Judicial elections are different from those for other offices.

Voicing "grave concern" over increasingly partisan and costly campaigns, the Conference of Chief Justices -- representing the top jurists in all 50 states, the District of Columbia, and U.S. territories -- voted Aug. 2 on measures to emphasize the "unique nature" of judicial elections. At least some of the judges in 39 states are elected.

"It's the money, it's the judicial questionnaires, it's a whole constellation of things happening now that don't advance the public's confidence in the courts," says Indiana Supreme Court Chief Justice Randall Shepard, outgoing chairman of the conference, who hosted the chief justices' meeting in Indianapolis. "We need to get information to bar associations and judges groups about what to do when the fire alarm goes off, or before the alarm goes off, in an election."

Justice Kennedy & Judicial Independence

Justice Anthony Kennedy has taken a lot of verbal abuse over the issue of citing international law and norms, especially as author of the Supreme Court's landmark decision in Roper v.Simmons, which ruled as unconstitutional the death penalty for juvenile offenders.

Dalia Lithwick has an essay, "Kennedy made me do it!", exploring conservative angst, today in Slate.  LINK

Why is it that whenever conservatives behave stupidly, they blame it on Justice Kennedy? Liberals are equally capable of the stupidity. But they don't go around blaming Antonin Scalia for it.

Consider former Alabama Supreme Court Justice Tom Parker. Apparently he didn't like Kennedy's majority opinion in Roper. Fair enough. But Parker didn't just express his disapproval, he urged his colleagues on the Alabama Supreme Court to ignore the Roper ruling altogether when they faced a substantially similar case last winter. He chose to talk to them about the matter in a January op-ed in the Birmingham News that reads less like legal argument than Fox News talking points. Urging his brethren to bypass Roper because it was "the unconstitutional opinion of five liberal justices on the U.S. Supreme Court," Parker wrote: "State supreme court judges should not follow obviously wrong decisions simply because they are 'precedents.' ... [A] judge takes an oath to support the Constitution—not to automatically follow activist judges who believe their own evolving standards of decency trump the text of the Constitution."

The Simmons decision is here.

Thanks to Howard Bashman at How Appealing for spotting this.

Justice O'Connor on Judicial Independence

Retired Supreme Court Justice Sandra Day O'Connor is interviewed in today's USA Today, where she discusses judicial independence  LINK and civics at America's 400th birthday LINK

Q: The issue of judicial independence has been much in the news. How serious a threat is such “court bashing” in the country today?

A: It's very serious. There were “Impeach Earl Warren” signs in the western United States when he was chief justice, but it never amounted to anything truly threatening. But the concerns today are not only at the national but at state levels. Have you watched what's happening in a proposal in South Dakota? They're looking to remove all judicial immunity from judges for their judicial decision-making and want to subject them to civil and criminal lawsuits for their actions on the bench. The sponsors want to take it elsewhere.

 

Q: What might be the effect of such a proposal?

A: That would be a remarkable change in direction from what the framers of our Constitution intended. They went to enormous effort to set up three separate branches of government — each with power to affect the other two but providing for independence of each of the branches, in effect letting them do their jobs.

Thanks to Howard Bashman at How Appealing for spotting this.

Judicial Fireworks in Alabama

Andrew Cohen's Bench Conference discusses the judicial wars in Alabama.  LINK

Dan Filler at Concurring Opinions has more.  LINK

Should International Law Be Cited In U.S.

That's the question that Ohio State University Law Professor John Quigley asks in an OpEd distributed by Knight Ridder News Service.  The subtitle of the essay is, "Yes:  Foreign precedents often have guided the high court in its rulings." LINK

Ginsburg has made clear that consulting foreign law does not mean the judges have to follow it. Yet the specter of rampant use of foreign law has been raised as if our judges no longer care about our own Constitution.

What our judges do in referring to foreign court cases is nothing out of the ordinary. The highest courts of many countries refer to foreign courts in construing their constitutions.

On some issues, our country explicitly accepts international standards of conduct. By treaty, for example, we have agreed not to torture, or to jail people without just cause. When it comes to applying those international standards, we cannot help but look at how they are read by courts in other countries.

Judicial Reform in Texas

"Another chance for judicial reform" is the title of San Antonio Express-News Editorial Page Editor Bruce Davidson's column in today's paper.  LINK

Under Texas' system of partisan elections, judges are forced to hustle contributions to stay on the bench, particularly in statewide races.

It's difficult to believe that a judge can disregard contributions from lawyers and litigants appearing in his court.

While no system is perfect or completely free of politics, merit selection with retention elections is the reform that makes the most sense. Under that system, the governor would appoint judges, who ideally would be screened by a nonpartisan legal panel. Senate confirmation would be required.

After serving a term, a judge would be required to face voters in an up-or-down vote.

Former Texas Supreme Court Chief Justice Tom Phillips spent his entire career on the high court pushing reforms for judicial selection, but was stymied by both Democrats and Republicans in the Texas Legislature.

More From Andrew Cohen

The CBS News analyst and blogger has commentary "Judge Thyself --- And Soon," at WashingtonPost.com.  LINK

You don't have to be a Washington insider to know that federal judges are under enormous political pressures these days from conservatives in Congress who want to limit the power and the authority of the bench. So what are too many otherwise bright federal judges doing? They reportedly are violating ethics rules, sloppily and sometimes arrogantly, and thereby giving their political enemies valuable traction in the battle between the branches. In fact, these regular tormentors of the judiciary are back, circling around the robed flock these days with their latest bad idea.

Attack on Judicial Independence in Colorado

Andrew Cohen's Bench Conference blog picks up an item from Colorado.  LINK

It's hard to go a day without coming across another story of another frantic attempt by conservative politicians to intrude upon the province of judges. And today's story comes from Colorado, where supporters of an initiative to impose term limits upon the state's judiciary have been allowed to begin to collect signatures to get the measure on the ballot this November No other state requires such limits, the Denver Post's Howard Pankratz is reporting this morning, and there is a really good reason for that: it's a terrible idea.

Justice Scalia, Congress, & International Law

Justice Scalia told Congress to back off from criticism of the Court and the use of citing international law in a speech yesterday. Though Scalia has been critical of citing international law in Supreme Court rulings, his remarks demonstrate a unity with the other justices on the issue of judicial independence.

Legal Times' Tony Mauro has a report here.

Washington Post coverage is here.

The Los Angeles Times coverage is here.