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Monday, June 19, 2006

Courts - "Judge conservatively, lest ye not be a judge"

The May-June issue of Mother Jones has an article titled "The Bible Bench - The message from fundamentalists to state jurists is clear: Judge conservatively, lest ye not be a judge." It is written by "Margaret Ebrahim, formerly of 60 Minutes II and the Center for Public Integrity, [who] is an investigative reporter for the Associated Press."

The article (much of which will, to regular readers, recall earlier ILB entries) begins in 2003 with Iowa District Judge Jeffrey Neary, who "terminated a civil union and settled property disputes between [two] women."

“I was just trying to settle a dispute between two people,” Neary says. But he made his decision just days before the Massachusetts Supreme Court upheld the legality of same-sex marriage in that state. Conservative Christians were ready for a fight.

In late summer 2004, Neary began preparing his race for retention. Because voters simply mark yes or no for one candidate, he hadn’t planned on running much of a campaign—Iowa judges typically win retention races with more than 75 percent of the vote. But the protests against him revived. * * *

Neary squeaked by with an embarrassing 59 percent of the vote, despite the fact that he had launched a fundraising committee that raised nearly $28,000—a huge sum for an Iowa judicial race—and bought newspaper and television ads attesting to his character. The experience has made Neary think twice before ruling on controversial cases. “When I write opinions, I will cover myself, so people know why I decided the way I did,” he says. “I will think a little bit about timing. I will sit on decisions around retention time. Yes, this experience has curtailed the third branch of government.”

Other judges share his concern, the highest profile being retired Supreme Court Justice Sandra Day O’Connor. In an unusually stark speech given at Georgetown University in early March, she asserted that “attacks on the Judiciary by some Republican leaders pose a direct threat to our constitutional freedom.” While not referring to him by name, O’Connor singled out former House GOP leader Tom DeLay for taking aim at the Supreme Court last year after its ruling in the Terry Schiavo case during a televised rally of conservative Christians called Justice Sunday. She expressed dismay over increasing physical assaults on judges as well as calls for “reforms” such as impeachments. “I am against judicial reforms driven by nakedly partisan reasoning,” she said. “The courts do have the power to make presidents, the Congress, or governors really, really angry. But if we don’t make them mad some of the time, we probably aren’t doing our jobs as judges…. We must be ever-vigilant against those who would strong-arm the Judiciary into adopting their preferred policies.”

That is just the beginning -- the article later gets into the politics of the "announce" clause. Some quotes:
Greg Wersal, a conservative lawyer ... in 1998 was running for the Minnesota Supreme Court for a second time. He didn’t have a chance against the incumbent, he felt, if he couldn’t tell voters his stance on pertinent legal issues. But the code of judicial ethics in Minnesota, as elsewhere, barred candidates from compromising their impartiality by discussing their views on disputed legal or political matters. This “announce clause,” as it is known, was developed by the ABA in 1972 and is in use by nine states to help maintain judicial impartiality and public faith in the courts. Twenty-five other states have imposed a “commit clause,” also developed by the ABA in 1990, which gives candidates more leeway to discuss the issues, as long as they don’t commit to a specific position. And 40 states prohibit making any “pledges or promises” about future judicial actions. (On the federal level, only judicial nominees who are sitting judges may not comment on pending cases and face a general requirement of impartiality.) * * *

In the midst of his 1998 campaign, Wersal filed suit against the Minnesota Board of Judicial Standards, charging that the announce clause violated his right to free speech. His suit caught the eye of the GOP, which joined his effort, and when the case went to the U.S. Supreme Court, it retained James Bopp Jr., a Terre Haute, Indiana, lawyer with a long conservative pedigree. The case of Republican Party of Minnesota v. White (named for Suzanne White, then head of the Board of Judicial Standards) was decided by the Supreme Court in 2002—and the decision went to Wersal.

During an interview in his office, Bopp said he believes that all judicial candidates, whether they’re appointed or elected, have a right to talk about controversial issues and cases as long as they don’t promise to rule a certain way on a specific case. But such a distinction hardly provides true protection against politicizing the courts; a candidate doesn’t need to name Roe v. Wade to indicate hostility to abortion rights. Bopp’s victory stunned the liberal judicial establishment.

Much later in the article:
Resistance in other states is likewise encountering conservative ire. By Bopp’s count, at least 40 states are defying the White precedent by instructing judicial candidates not to respond to surveys or answer questions on hot-button issues. He has sued six states total and has so far prevailed in three: Alaska, North Dakota, and Kentucky; the Indiana and North Carolina cases are pending.
A side-bar begins:
Conservatives around the country are pressing judicial candidates to answer questions about their personal religious practices and views on abortion, gay marriage, school prayer, and other controversies likely to come before their courts. But in Congress last fall, when Democrats attempted to probe Supreme Court nominees’ stances on these same issues, the GOP cried foul. No one, they said, should apply a single-issue “litmus test” to discern a nominee’s qualifications for the court. Should we count on seeing these indignant senators and conservative leaders push the GOP to stop holding state judges to a different standard?
Also on the Mother Earth website is an interview with Nebraska Judge Neary. From the intro:
In recent years, a handful of states have flirted with implementing a merit-based system for their judges. However, the Christian right has fought against the measures every step of the way, praising contested elections as the way to keep judges responsible to the "will of the people." Yet proponents of merit selection find an irony in this: Why is it necessary to pit candidates against each other, encourage influence-peddling, and engage in mud-slinging to select a judge? As the website of the nonpartisan American Judicature Society notes, "Not only does merit selection ensure that only the most qualified candidates become judges, but... retention elections provide a mechanism whereby those judges who are failing to live up to their responsibilities to the citizens can be removed from the bench."

At a time when religious conservatives are stepping up efforts against both individual judges and the way justice is delivered in this country, MotherJones.com spoke with Neary about the right's attack on the judiciary, the task of judges, and the merits of merit selection.

The long and very interesting interview ends with this:
MJ: How should a judge, given this political climate, handle potentially unpopular or controversial decisions?

JN: Every time we make a decision, somebody's unhappy. Obviously, that goes without saying. This is my rule of thumb: Don't deviate or change from the way that you've always done things. Whatever you decide, explain yourself well and in-depth and don't be afraid to be lengthy if you have to. From judges' perspectives the best thing they can do is communicate things. I would encourage a judge not to give in to the temptation to let the outside pressures dictate how you handle a case.

Posted by Marcia Oddi on June 19, 2006 08:24 PM
Posted to Courts in general