Misgivings raised as U.S. prepares to speed death penalty appeals
The Associated Press
August 31, 2007
Since capital punishment was reinstated in the United States three decades ago, 124 people awaiting execution have been exonerated. For some prisoners, the appeals process provided time to prove their innocence.
Now a move by the government to speed up appeals has alarmed death penalty opponents, and even some supporters, who worry that innocent people could be put to death.
The unease involves a new law that would give the U.S. attorney general, instead of judges, the power to shorten some deadlines for appeals if programs are established to ensure convicts get competent lawyers.
Supporters of the law argue that families of victims suffer when executions are delayed, because they have to wait for perpetrators to face justice. Proponents also say that the long wait between sentencing and execution blunts the deterrent effect they believe makes criminals think twice before murdering.
"These cases are being reconsidered in a lot more detail than they need to be," says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a victims' rights group based in California. "Justice can't take this long."
Some lawmakers, defense lawyers and human rights groups believe the attorney general, as the supervisor of U.S. prosecutors, should not be made responsible for ensuring the rights of convicts.
Some of these opponents hope Monday's resignation of Attorney General Alberto Gonzales could provide an opportunity to alter or repeal the law.
The law, approved last year but not yet implemented, would affect only appeals in state courts, which try most death penalty cases. Thirty-eight of 50 U.S. states allow the death penalty, though some have suspended executions. While polls show most Americans favor capital punishment, support has been eroding amid reports of injustices.
Among the concerns, some death row convicts have lost their chances to appeal because of mistakes by state-appointed lawyers. Last year, the American Civil Liberties Union documented 16 death penalty cases in Florida alone, where lawyers missed deadlines.
Critics of the law say that moving up deadlines without guaranteeing that defendants have competent lawyers would be reckless.
Death-row inmates spend an average of 10.5 years in the legal system before execution, according to the Death Penalty Information Center, a research group that opposes capital punishment. The 124 people who were exonerated spent an average of 9.2 years to overturn their sentences, the center says.
"If you speed it up, you are going to make more mistakes and execute innocent people," said Brian Evans of Amnesty International.
The chairman of the Senate Judiciary Committee, Democrat Patrick Leahy, recently told The Associated Press that he would use hearings to expose the law's problems and push to repeal it. He could have an opportunity to raise the issue when his panel holds confirmation hearings for nominees to replace Gonzales and for other vacant senior Justice Department posts.
Although the law has been passed, the Justice Department has not finished writing the rules needed to implement it. Nevertheless, a published draft of those rules already has heightened concerns.
On Monday, the American Bar Association, the U.S. legal profession's largest association, called the rules "deeply and fundamentally flawed" for not ensuring that convicts have competent attorneys.
"The rules open the scary possibility that the states are going to wave their arms, and the Department of Justice is just going to let them speed appeals," said Robert Litt, a criminal defense lawyer who helped write the ABA comments.
A Justice Department spokesman, Erik Ablin, would not comment on the ABA's criticism but said the department would consider it before completing its rules.
States were given the opportunity to try to speed appeals under a 1996 law. But they have been unable to take advantage of the law because federal judges have repeatedly found that states did not provide sufficient legal protections to defendants.
"Now instead of making states do better, you are changing who decides," said Richard Dieter, executive director of the Death Penalty Information Center.
Bruce Fein, a senior Justice Department official under the late Republican President Ronald Reagan, supports the death penalty. But he agrees that the attorney general should not have this power to shorten appeal deadlines.
"Judges — since it's their business — pay attention to the law," he said. "But the motivation of an attorney general in making this decision could be: 'Let's show that we are tough on criminals.'"
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Blunt's survey for judicial nominees may be bid to intimidate, lawyers say
By Steve Vockrodt, Kansas City Business Journal
August 31, 2007
9. Have you been divorced? If yes, what is the full name(s) of former spouse(s) and date(s) of marriage?
91. Can you please identify a Missouri Supreme Court decision the reasoning of which you find exceptional? Why?
93. Can you please identify a Missouri Supreme Court decision the reasoning of which you find flawed? Why?
Such questions -- included in a 111-item survey given to three nominees for the Missouri Supreme Court -- have lawyers asking about Gov. Matt Blunt's motives.
"I think it's unprecedented," Lawrence Ward said of Blunt's survey. Ward, a Shughart Thomson & Kilroy PC lawyer, served on the Appellate Judicial Commission for Govs. Kit Bond and John Ashcroft.
Blunt's process for making his first appointment to the state Supreme Court has alarmed many in the state bar, who interpret the actions as an attempt to inject politics into a selection process designed to minimize it.
A spokeswoman for the governor said Blunt is using the questionnaire to make a careful decision on a successor for retired Justice Ronnie White."The governor has said he's working within the system," said Jessica Robinson, Blunt's spokeswoman.
Robinson said most of the questions on the survey mirror those given to nominees to the U.S. Supreme Court and federal courts.
Questionnaires given by the U.S. Senate to recent U.S. Supreme Court nominees John Roberts, Samuel Alito and Harriet Miers included 28 to 29 questions and did not include questions about divorces or thoughts on court decisions.
Asked whether Blunt is considering rejecting all three nominees, Robinson said she couldn't provide an official comment.
Charles German, president of the Kansas City Metropolitan Bar Association, said he thinks Blunt and his staff have tried to intimidate the three nominees -- state appeals court Judges Nannette Baker, Ronald Holliger and Patricia Breckenridge -- by using a protracted vetting process.
"I characterize it that way, although, you know, intimidation for what purposes?" said German, a lawyer with Rouse Hendricks German May PC. "If that's the motivation, I think it's doomed to failure."
The state adopted its system for selecting Supreme Court justices, dubbed the Missouri Plan, in 1940. A commission comprised of three lawyers, three citizens and the chief justice of the state Supreme Court selects three nominees. The governor has 60 days to choose one of the three, or else the commission makes the selection.
Missourians for Fair and Impartial Courts Inc. has called Blunt's actions with the present court opening an attack on the Missouri Plan and a setup for a cadre of lawmakers keen on modifying the plan in a coming legislative session.
"No governor, up until now, has felt the need to publicize it in the manner in which (Blunt) is going to make his decision," said Edward "Chip" Robertson Jr., head of the MFIC. Robertson, a lawyer with Bartimus Frickelton Robertson & Gorny PC, is a former chief justice of the Missouri Supreme Court.
The MFIC recently launched radio advertisements in response to those aired by the Adam Smith Foundation, a newly minted nonprofit organization that calls the Missouri Plan a secretive, political process.
"We as citizens have no say in how it works," said John Elliott, president of the Adam Smith Foundation. "We're told to shut up and mind our own business." The foundation supports applying the Missouri Sunshine Law to the Appellate Judicial Commission's process of interviewing and selecting nominees.
Robertson rejects the idea, likening it to a city council going into executive session to discuss personnel matters. "It's a bad idea because the Sunshine Law, in the first place, does not apply," he said. "But even if it did apply to the judicial commission, it would not apply to personnel matters, which is what this is."
Despite describing itself as a nonpartisan group, two of the Adam Smith Foundation's three incorporating members have been donors to Republican candidates.
Elliott made maximum $1,200 contributions to Missourians For Matt Blunt Inc. in 2004 and 2005, and a $1,175 contribution in 2003.
William Clark Hardin, another incorporating member from St. Charles, made several donations to Republicans in recent years, including a $1,275 contribution in 2006 to state auditor candidate Sandra Thomas.
"We know every group has a slant; now ours is conservative," Elliott said. "There aren't many conservative Democrats to support, but if there were, I'm sure we would be considering them."
Elliott said the foundation does not support any of the three candidates for the Supreme Court vacancy.
"Two of the three definitely have no exhibited conservative values in their rulings, and the third is questionable. The jury is still out -- no pun intended. The jury is still out on that one," Elliott said. "The lady from Nevada (Breckenridge), she's being touted as a Republican, and that's supposed to appease the conservatives and the Republicans and the governor."
He also pointed out that some of the spouses of the nominees have made political contributions to Democratic politicians. Campaign finance records show that Bryan Breckenridge, husband of Patricia Breckenridge, donated $675 to Friends of (Claire) McCaskill in 2003.
Supporters of the Missouri Plan insist that the process works fine as it is and has produced three qualified successors to White.
"Nobody who is leveling these criticisms are able to point to a decision of the Missouri Supreme Court that's inappropriate," German said. "What did they do to deserve this? It's hard to understand exactly what it is they're criticizing."
Sample question
From Matt Blunt's staff to the three nominees to fill the vacancy on the Missouri Supreme Court:
9. Have you been divorced? If yes, what is the full name(s) of former spouse(s) and date(s) of marriage?
10. Do you have children? What are their full names and ages?
26. What groups or non work-related organizations have you joined, including nonprofits, community groups, religious, secular or other organizations? Please list dates of service and offices held, and describe each organization's mission and purpose.
37. Have you or your family ever employed an illegal immigrant or a company that employed illegal immigrants?
38. Have you or your family ever worked for companies or been affiliated with organizations (nonprofit or other) that employ or provide services to illegal immigrants?
57. Have you ever taught continuing legal education courses? If yes, please list. Also, do transcripts, written speech notes, or audio/video recordings of the CLE course exist? Please submit copies of these.
58. Have you ever given lectures to organized groups, legal or otherwise, on topics of legal concern? If yes, please list and provide transcripts, written speech notes, and/or recordings of the lecture.
91. Can you please identify a Missouri Supreme Court decision the reasoning of which you find exceptional? Why?
92. Can you please identify a United States Supreme Court decision the reasoning of which you find exceptional? Why?
93. Can you please identify a Missouri Supreme Court decision the reasoning of which you find flawed? Why?
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Alabama lawyer becoming president of American Bar Association
The Associated Press
August 24, 2007
BIRMINGHAM, Ala. (AP) — Birmingham attorney H. Thomas Wells Jr. will take over as president of the American Bar Association next August, becoming the third Alabamian to head the group.
Wells, 57, was elected at the association's annual meeting that wrapped up Aug. 14 in San Francisco.
Previous Alabamians to lead the 413,000-member legal group were Henry Upton Sims of Birmingham in 1929-1930 and Wells' law partner, N. Lee Cooper of Birmingham, in 1996-1997.
Wells said his schedule will change dramatically when he becomes president next August, including traveling throughout the country to speak to legal groups, civic clubs and newspaper editorial boards and traveling internationally to attend professional meetings.
"I could be on the road 300 days," he said Friday.
Wells' one-year term could be more exciting than normal because he will take office in the heat of a presidential election. He said the association will have to be prepared for any election problems like the hanging chads of 2000 and will need to be ready to speak out about keeping the judiciary free from political influence.
He said judges' rulings sometimes become issues in political campaigns, but the judges are restricted from speaking publicly about pending cases. In those instances, association members step forward to explain that judges sometimes have to make decisions that are legally correct but politically unpopular, he said.
Wells, a 1975 graduate of the University of Alabama School of Law, has held other posts in the American Bar Association, including being a state delegate from 1992-2001 and chairman of its House of Delegates from 2002-2004.
A partner in the Maynard, Cooper and Gale law firm, Wells' practice focuses on the defense of class-action tort law suits and environmental and product liability cases.
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Lawyers Gear Up Grand New Fees - Hourly Rates Increasingly Hit $1,000, Breaching a Level Once Seen as Taboo
By NATHAN KOPPEL, The Wall Street Journal
August 22, 2007
The hourly rates of the country's top lawyers are increasingly coming with something new -- a comma.
A few attorneys crossed into $1,000-per-hour billing before this year, but recent moves to the four-figure mark in New York, which sets trends for legal markets around the country, are seen as a significant turning point.
On Sept. 1, New York's Simpson Thacher & Bartlett LLP will raise its top rate to more than $1,000 from $950. Firm partner Barry Ostrager, a litigator, says he will be one of the firm's thousand-dollar billers, along with private-equity specialist Richard Beattie and antitrust lawyer Kevin Arquit. The top biller at New York's Cadwalader, Wickersham & Taft LLP hit $1,000 per hour earlier this year. At Fried, Frank, Harris, Shriver & Jacobson LLP, also of New York, bankruptcy attorney Brad Scheler, now at $995 per hour, will likely soon charge $1,000.
At large firms, billable rates have climbed steadily over the years, since 2000 rising an average of 6% to 7% annually, according to the law-firm group of Citi Private Bank, a unit of Citigroup Inc. But for some time, the highest-billing partners at top big-city firms have hovered in the mid-to-high $900 range, hesitant to cross the four-figure threshold. "We have viewed $1,000 an hour as a possible vomit point for clients," says a partner at a New York firm. "Frankly, it's a little hard to think about anyone who doesn't save lives being worth this much money," says David Boies, one of the nation's best-known trial lawyers, at the Armonk, N.Y., office of Boies, Schiller & Flexner LLP.
A select group of attorneys began billing at that rate before this year, such as Stephen Susman, a founding partner of a Houston firm who has tried big-ticket cases around the country, and Benjamin Civiletti, a former U.S. Attorney General under President Carter and a senior partner at Washington, D.C-based Venable LLP. And in London, top attorneys bill at rates that, when converted, can hit almost $1,500 an hour.
As a critical mass develops around fees of $1,000 an hour in New York, though, more firms may feel comfortable going to that level and beyond. "One-thousand dollars per hour has symbolic significance," says Robert Rosenberg, a Latham & Watkins LLP partner who bills $925 an hour. "But like the year 2000, it's just a number."
Yet, many attorneys are still reluctant to charge $1,000 an hour. "There is a perception issue between $1,050 and $950," says Hugh Ray, a partner at Andrews Kurth LLP in Houston. "At some point, you look bad if you go too high." Mr. Boies says psychology in part has held him back from charging more than $880 per hour, noting, "When I started practicing law in 1966, my billing rate was considerably under $100."
Law firms also derive comfort from running with the pack. "We prefer not to be market leaders when it comes to rates," says J. Gregory Milmoe, a bankruptcy attorney at Skadden, Arps, Slate, Meagher & Flom LLP in New York. Mr. Milmoe says in September his hourly rate will climb to $950.
Firms' hesitation to breach the $1,000 mark shows that legal services aren't unlike other high-end products that sell at "just under" prices, like the $19,900 car, says Eric Anderson, a marketing professor at Northwestern University's Kellogg School of Management. "The sellers are worried that they will be perceived as extremely expensive."
Some clients' reactions bear that out. Brackett Denniston III, the general counsel of General Electric Co., says the company has paid $1,000 per hour for "specialized" legal advice. Still, "that's a line we'd rather not see crossed," Mr. Denniston says. "A thousand dollars per hour is emblematic of the high cost of major law firms," he says. "More than rates, my greater concern is the overall inflation level" in legal costs.
Thomas Sager, assistant general counsel of DuPont Co., says he recently balked when a New York lawyer cited $1,000 as his hourly rate. Instead, Mr. Sager says, he agreed to pay the attorney a flat monthly fee. "One-thousand dollars may be someone's choke point, but mine is actually a lot lower," he says.
Still, some lawyers are confident they're worth $1,000 per hour, and that now's the time to break the barrier. "I haven't personally experienced resistance to my billing rates," Mr. Ostrager says. "The legal marketplace is very sophisticated."
Law firms say the boosts aren't just about lining partners' pockets. They're partly a response to booming costs, which in recent years have included skyrocketing associate salaries -- first-year lawyers in many firms make $160,000 a year -- and expenses associated with geographic expansion.
While it's hard to raise prices on standard legal work, for matters such as bet-the-company deals, intricate patent disputes, huge bankruptcies or complex antitrust litigation, firms often feel they can raise fees for name-brand partners without upsetting clients.
Indeed, clients are often most cost-conscious about junior attorneys, believing they provide less value-per-dollar than senior counsel. Considering a major-league baseball player can make the equivalent of $15,000 per hour, "$1,000 for very seasoned lawyers who can solve complex problems doesn't seem to be inappropriate," says Mike Dillon, the general counsel of Sun Microsystems Inc.
Hourly rates, of course, tell just part of the fee story. Firms occasionally discount their stated rates for top clients. And companies sometimes prefer to pay their lawyers a flat fee for each case or deal, believing it encourages more efficiency than billing by the hour.
Plaintiffs trial lawyers often bill on a contingency-fee basis, earning a share of a settlement or verdict -- an amount that can dwarf top rates. "It represents an opportunity cost when I am working by the hour," says Mr. Susman, who last year raised his hourly fee to $1,100. He did it in part, he says, "to discourage anyone hiring me on that basis."
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Washington Co. judge ordered to repay $1.2 million in estate case
The Associated Press
August 24, 2007
MOBILE, Ala. (AP) — A Washington County judge asked another judge to keep the public from learning that he was being ordered to repay $1.2 million to a woman he represented in an estate case and to give her back 600 acres of land.
Circuit Judge Stuart DuBose, who was elected last year to serve the circuit for Choctaw, Clarke and Washington counties, was ordered by Mobile County Circuit Judge John Lockett to have the money and land returned to Cheryl Weaver.
The Press-Register reported Friday that DuBose responded to the order by faxing a letter to Lockett saying the ruling was "not legal" and "immoral."
"This order must not become public knowledge," DuBose wrote. "It must not be recorded. It will ruin me professionally and further ruin me financially."
Lockett, who is overseeing the case after it was moved from Washington County, ordered DuBose to halt all unofficial communication with the court after receiving the fax Sunday.
The dispute began in 2003, when Weaver visited DuBose and asked him to draw up a will for Joseph J. Sullivan. Weaver, who was Sullivan's caretaker, informed DuBose that Sullivan was dying and wanted to leave his entire estate to Weaver.
DuBose drafted the will, but never met with the dying man. He also drafted a certificate of competency for Weaver to have signed by Sullivan's doctor.
After Sullivan died, Weaver sued DuBose alleging malpractice among other claims. The dispute over the estate was settled in October.
Lockett ruled that DuBose or the Sullivan estate must pay Weaver because DuBose violated a confidential settlement order when splitting Sullivan's land between his law firm and Weaver.
DuBose won his judgeship last year after a closely contested primary race. After the primary but before the uncontested general election, DuBose was suspended for 45 days by the Alabama Bar Association for his conduct in the estate case.
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Rookie lawyers train off the clock; A year of learning --- without billing
TAMMY JOYNER, The Atlanta Journal-Constitution
August 24, 2007
In an unusual move, an Atlanta-based law firm has eliminated a half-century-old requirement known as "billable hours" for first-year attorneys in favor of more on-the-job training.
Ford & Harrison, one of the top labor employment firms in the nation, recently dropped the requirement as part of its new "Year One" Associate Development program, a 15-month regimen modeled after the medical school residency.
Rather than spending most of their first year or so researching law --- and billing clients for that work --- the new lawyers will spend time in strategy sessions, arbitration hearings, even in court --- duties usually reserved for senior attorneys.
"You have hands-on experience, but the clients aren't charged for it," said Lash Harrison, the managing partner who came up with the idea. "While we will keep track of hours whether they are billable or not, the focus will be on training, shadowing and clinical hours."
The program begins next month with the arrival of the first-year associates. The firm will have six new attorneys throughout its U.S. operations. The program will have no bearing on their pay, which for the Atlanta associate will be $115,000. First-year associates get up to $125,000, depending on the market and the cost of living.
One legal expert praised the concept, calling it a novel approach to addressing clients' concerns about billing, especially for tasks done by inexperienced attorneys.
"It's a great idea," said Susan Hackett, senior vice president and general counsel for the Association of Corporate Counsel in Washington. "There isn't a lot of experience with this kind of thing out in the marketplace. So I imagine a lot of people will be watching to see how well it works."
Billing has become such a concern, Hackett noted, that some clients have resorted to asking law firms to exclude any billing from first-year associates.
She called the Ford & Harrison plan "the kind of innovative solution that more clients are going to look for in law firms."
It's been a fortuitous year for first-year associates in general. U.S. firms increased many starting salaries to well over $100,000.
Under the Ford & Harrison program, the six fledgling attorneys will take part in collective bargaining sessions, depositions, trials and hearings, labor and other arbitration cases and on-site investigations of Equal Employment Opportunity Commission cases, as well as strategy sessions.
One first-year associate will work in the Atlanta office. Ford & Harrison has more than 190 lawyers in Atlanta and 17 other U.S. offices.
"Regardless of how much time is spent in a classroom, there is no substitute for experience," said Lauren Wherley, one of the incoming associates. She'll be working in the firm's Washington office.
Started in 1950s
Billable hours is a concept borrowed from the accounting profession. It's the practice of charging a client for a service based on the time it took to complete. It's also a critical measurement of a lawyer's productivity and the financial lifeblood of law firms. Law firms began using the method in the 1950s for uniformity as the industry and clients' needs grew. Bonuses often hinge on billable hours.
Ford & Harrison's decision surprised many in the legal community.
"It is unusual for a law firm to tell its new associates right upfront that they will not be held accountable for the firm's billable hours standards," said Roger Quillen, chairman of Fisher & Phillips, another employment law firm in Atlanta. "It's not usual for a law firm to recognize that first-year lawyers might not meet the firm's normal billable hours standards."
Typically, associates at Atlanta law firms bill between 1,800 and 2,000 hours a year, legal experts say. The conventional thinking is that fresh-from-law-school attorneys often turn in fewer hours than more seasoned attorneys. They usually spend their time on such tasks as library research, writing opinion letters and working with senior lawyers to draft discovery requests.
Help from clients
Ford & Harrison got help from some of its clients in developing the Year One program. That type of buy-in will hopefully help clients see the "value" in using new attorneys, Lash Harrison said.
Once they emerge from the program, the new attorneys should be "much more efficient, so we'll be able to utilize them to do more substantially sophisticated work," Harrison added.
"I am very impressed by Ford & Harrison's progressive approach and commitment to the development of their associates," said Regine Zuber, vice president and associate general counsel at Turner Broadcasting System Inc., a client. "I would think this would be a great tool to attract the best and brightest law school graduates."
Harrison also sees the change as a way to keep young attorneys interested in the field.
"If you spend the first three or four years doing things that are dull, you might not continue in the profession."
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Show Me the Judges – [Commentary]
The Wall Street Journal
August 30, 2007
For the latest proof that you can't get politics out of politics, see the battle in Missouri over how the state selects its judges. All three branches of that state's government are arguing over a system that was designed to protect judicial independence from the rowdier environs of democratic elections. What it now has is worse.
Launched in 1940, the so-called "Missouri Plan" was once considered state of the art and imitated by many other states. An ostensibly non-partisan seven-member commission chooses a slate of three nominees and the Governor chooses among them. The idea was to produce candidates based on merit while diluting political influence over courts.
But that was then. Anybody with the power to choose judicial candidates was also destined to become a political actor. And that's exactly what has happened to the Appellate Judicial Commission, made up of three members chosen by the Missouri Bar Association, three picked by current and past Governors, and the chief justice of the state supreme court. Now Republican Governor Matt Blunt finds himself battling the Missouri bar over the commission's latest panel of candidates to fill the seat of retiring state Supreme Court Justice Ronnie White.
From a list of some 30 applicants, the commission offered Mr. Blunt three nominees. One, Nannette Baker, is a former TV reporter who practiced law for three years before taking her current seat on the bench. Her inclusion allows the commission to take credit for proposing an African American to fill a seat being vacated by an African American. Yet the original list of 30 had other, more impressive black candidates, including Appellate Judge Lisa Hardwick, who had apparently not been deferential enough to the bar association.
The second option is Ron Holliger, a trial lawyer known for personal injury and product liability suits. He's the choice of those lawyers who hope to preserve a permissive judicial environment. Behind door No. 3 is the nominally "conservative" option, Judge Patricia Breckenridge.
How the commission arrived at this roster has its own hazy backroom quality, an issue that has become part of the controversy. What is clear is that over the decades the state bar has increasingly dominated the selection of finalists. Each applicant was required to fill out a form asking such non-probing questions as where they live and whether they have children. The real decision-making was conducted in interviews, where commission members got into weightier matters of politics and judicial philosophy.
Missourians surely would benefit from a fuller picture of what goes on in these sessions, whose upshot seems designed to steer Mr. Blunt toward appointing a favorite of the legal guild. In a Federalist Society poll done in March, 87% of state residents were unaware even of the make-up of the nominating commission. Various state politicians have called on the commission to open its records and transcripts to the public -- which it has so far refused to do.
Meanwhile, the Governor is unhappy with the options, taking the unusual step of asking each of the three candidates to fill out his own 111 question survey. Mr. Blunt has not ruled out rejecting all three as a kind of protest, but under the Missouri Plan that would leave the commission making the pick.
All this comes amid increased scrutiny of the Missouri court system, as well as a period of high stakes for the Missouri trial bar in upcoming cases on tort reform and workers compensation. Several controversial court decisions earlier this year laid the groundwork for the current battle -- highlighting a growing pattern of judicial overreach. The court overturned 60 years of legal precedent to give collective bargaining rights to public employees and issued a ruling that effectively imposed new taxes.
The Missouri plan was originally seen as preferable to a system directly electing judges, which in other states has left sitting judges beholden to the wealthy trial lawyers who are their biggest campaign donors. But as the current case has shown, special interests are no less involved in the state's selection process -- the only difference is that this now happens behind closed doors.
Missouri's moment may also have national repercussions. Some 35 other states adopted some version of its plan, though many have since made their methods more representative. Trying to get politics out of politics is a fantasy exercise. The success of the American system is rooted in checks and balances and the accountability that comes from public scrutiny. Keeping judicial selection democratically accountable is the best insurance for choosing the best judges, and ensuring that they are serving the interests of all citizens.
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The Professions Strike Back
BY Scott Horton, Harper’s Magazine
August 15, 2007
The Bush Administration has finally achieved something unprecedented. The organized bar–with a vote just one short of unanimity–has declared one of Bush’s executive orders illegal and vowed to seek Congressional action to override it. And psychologists appear poised to join their legal colleagues in an equally harsh denunciation. It’s about torture. Remember Bush’s claim, “We do not torture”? Except, of course, we do, and on Bush’s personal orders.
Back on July 21, President Bush issued an Executive Order which gave cover to a series of brutal interrogation and detention practices to be used by the Central Intelligence Agency at black sites. Now the nation’s organized bar and its psychologists’ association are both saying: “no” and directing their members not to comply with the order. Jane Mayer’s recent article in the New Yorker furnishes an excellent description of the tactics at the bottom of this controversy. Here’s a sampling:
A former member of a C.I.A. transport team has described the ‘takeout’ of prisoners as a carefully choreographed twenty-minute routine, during which a suspect was hog-tied, stripped naked, photographed, hooded, sedated with anal suppositories, placed in diapers, and transported by plane to a secret location. A person involved in the Council of Europe inquiry, referring to cavity searches and the frequent use of suppositories during the takeout of detainees, likened the treatment to ’sodomy.’ He said, ‘It was used to absolutely strip the detainee of any dignity. It breaks down someone’s sense of impenetrability. The interrogation became a process not just of getting information but of utterly subordinating the detainee through humiliation.’ The former C.I.A. officer confirmed that the agency frequently photographed the prisoners naked, ‘because it’s demoralizing.’
In addition to these practices, some of which may constitute the felony of rape by instrumentality under various state statutes, other practices condoned by Bush’s order include waterboarding, long-time standing, hypothermia and sleep deprivation in excess of two days. These are all techniques considered to be “torture” under American criminal law, as well as under international human rights standards.
The Bush Administration has reckoned with the silence and complicity of professional organizations whose work is essential to permitting the implementation of the CIA torture scheme, including doctors, psychologists, behavioral scientists and lawyers. However, the silence of the professions is coming to an end.
The Lawyers
Yesterday meeting in San Francisco, the organized legal profession in the United States—the American Bar Association—took a firm stand on the president’s order, denouncing it as unlawful and calling upon Congress to override it. Of the more than five hundred delegates present and voting, one single delegate sided with the administration—the most devastating defeat ever suffered by any U.S. administration on what was essentially a vote of condemnation. Even the ABA committees that represent government lawyers involved in national security organizations and retired military officers led the charge in assailing the Bush order’s legality.
The Los Angeles Times reports:
The first resolution dealt with an executive order adopted by the Bush Administration less than a month ago that Barbara Berger Opotowsky, president of the New York City Bar Association, said was clearly “inconsistent with U.S. obligations” under Article 3 of the Geneva Conventions, which requires humane treatment of detainees.
“The use of official cruelty has repeatedly been shown to be far from the best means of extracting truthful information,” said Opotowsky, who proposed the resolution. She noted that a U.S. Army field manual on intelligence interrogations issued last September barred the controversial interrogation techniques that will be available to the CIA. “Unfortunately, the executive order sets a lower standard for the CIA,” she said.
Memphis, Tenn., lawyer Albert Harvey, a retired Marine major general, also spoke in favor of the resolution, which passed by voice vote with only a single “nay” registering in the large meeting hall at the Moscone Center here. “When we put our troops in harm’s way, we expect other countries to treat our soldiers humanely. We can do no less,” said Harvey, who heads the ABA’s Standing Committee on Law and National Security. Like Opotowsky, Harvey quoted an article recently published by P.X. Kelley, a former Marine commandant, and Robert Turner, of the University’s Center on Law and National Security, who in the past have been supportive of the administration’s war on terror. In this instance, however, the duo wrote that they could not “in good conscience” support the executive order, saying it affords the CIA “carte blanche to engage in ‘willful and outrageous acts of personal abuse.’ “
By passing this resolution, the ABA has now committed itself and its resources to oppose the Bush Administration in court proceedings and in Congress. It also established an opinion within the profession that the executive order itself is unlawful. The ability of CIA officials and others to rely on the order in taking action and claim immunity based on that reliance has been strongly eroded by this action. And from this point, the view advanced by a small handful of “loyal Bushie” lawyers that the techniques themselves are lawful has to be understood as the perspective of a tiny insular minority within the legal profession, a view which has now been forcefully denounced by the profession as a whole.
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A Quest to Get More Court Rulings Online, and Free
By JOHN MARKOFF, The New York Times
August 20, 2007
SEBASTOPOL, Calif., Aug. 14 — The domination of two legal research services over the publication of federal and state court decisions is being challenged by an Internet gadfly who has embarked on an ambitious project to make more than 10 million pages of case law available free online.
The project is the latest effort of Carl Malamud, an activist who founded http://public.resource.org in March, with the broad intent of building “public works” accessible via the network, and with the specific plan to force the federal government to make information more publicly accessible.
Last week, Mr. Malamud began using advanced computer scanning technology to copy decisions, which have been available only in law libraries or via subscription from the Thomson West unit of the Canadian publishing conglomerate Thomson, and LexisNexis, a division of Reed Elsevier, based in London.
The two companies control the bulk of the nearly $5 billion legal publishing market. (A third, but niche, player is the Commerce Clearing House division of Wolters Kluwer).
He has placed the first batch of 1,000 pages of court decisions from the 1880s online at the public.resource.org site. He obtained the documents from a used Thomson microfiche, he said.
Mr. Malamud, who is a self-styled Robin Hood of the information age, has confounded executives and administrators at organizations as diverse as the Smithsonian Institution, the House of Representatives and the Commerce Department by asserting the public’s right to government information and then proceeding to digitize it and place it in the public domain.
“I don’t mind people making billions,” Mr. Malamud said, “but I hate barriers to entry.”
Mr. Malamud has a significant track record in battling publishers over public information. In 1994 he began a crusade that ultimately persuaded the federal government to make records from the Securities and Exchange Commission and the Patent and Trademark Office available online to the public at no cost.
He said the free availability of that digital information did not undercut the businesses that were making money from the information at the time.
“The market for commercial services based on those databases actually increases once the core underlying data has been made widely available,” he wrote in a letter to the chief executive of Thomson North American Legal last week, informing the company of his actions.
Mr. Malamud is not the first person to attempt to unravel the control of West and LexisNexis. The issue of whether the companies have copyright protection over the published and online versions of the legal research reference materials led to legal challenges in the 1980s and ’90s. During the ’90s, a New York lawyer, Alan D. Sugarman, successfully challenged West, winning a ruling in a copyright protection lawsuit. However, Mr. Sugarman’s company, Hyperlaw, ultimately failed.
“It cost me a lot of money, and when it was all said and done I was wiped out financially, so I went back to the practice of law,” Mr. Sugarman said.
West’s electronic and print influence over the legal profession became so valuable that Thomson paid $3.4 billion for the company in 1996. The West books contain major court decisions, and they have been adopted as the standard in the nation’s courts and law firms, and the West method of identifying cases has remained the standard for citations in decisions and legal briefs.
However, Mr. Malamud and a diverse group of backers argue that the control of publishing court rulings subverts the original intent of the framers of the Constitution by making the nation’s laws difficult to obtain by those outside the legal profession.
In a letter to West Publishing last Wednesday, Mr. Malamud said his intent was to make federal and state court decisions available to a population that cannot afford the subscription costs.
Legal codes and cases are the “operating system” of the nation, he said. “The system only works if we can all openly read the primary sources,” he said in the letter. “It is crucial that the public domain data be available for anybody to build upon.”
John Shaughnessy, a spokesman for Thomson, said: “We have received the letter from Public Resource and Mr. Malamud raises a number of interesting but complex points. We are looking at them now and then will be in touch directly with Mr. Malamud.”
The Public Resource effort is one of several attempts to make the nation’s laws more accessible. One project, AltLaw (altlaw.org) is a joint effort by Columbia Law School’s Program on Law and Technology and the Silicon Flatirons program at the University of Colorado Law School to permit free full-text searches of the last decade of federal appellate and Supreme Court opinions.
“I’m a legal academic and I woke up one day and thought, ‘Why can’t I get cases the same way I get stuff on Google?’ ” said Tim Wu, a Columbia law professor who is one of the leaders of the project. “People should be able to get cases easily. This is a big exception to the way information has opened up over the past decade.”
The challenge faced by the various public interest and commercial efforts is the lack of standardization in the court system that makes it a technical nightmare for those who want to place information online for the public.
“There is supposed to be no ignorance of the law, and yet it’s not even accessible to most people,” said Tim Stanley, the chief executive of Justia, a Palo Alto, Calif., provider of online information.
Justia is spending about $10,000 a month to send people to copy documents at the Supreme Court so the company can place it online for free access, he said.
The unifying vision of all of the challengers to the current system is a Wikipedia-like effort to make the nation’s laws freely searchable by Internet search engines. They believe this will lead to a public system of annotation of the laws by legal scholars as well as bloggers, giving the American public much richer access to the nation’s laws.
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Lawyers elected to Bar board
The Montgomery Advertiser
August 12, 2007
The Elder Law Section of the Alabama State Bar elected Montgomery's Ronald A. Holtsford as chairman for 2007-2008.
Jason Britt of Elmore County was elected vice chairman.Holtsford is a 1999 Jones School of Law graduate in private practice. Britt, a 2004 graduate of the Jones School of Law, practices in Millbrook with Morris and McAnnally, LLC.
The Elder Law Section is made up of Alabama attorneys active in assisting elderly with age related legal issues.
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'Simpsons approach' urged for voter guide
By Geoffrey Fattah, Deseret Morning News (Utah)
August 16, 2007
If Homer Simpson were a Utah voter, the voter information provided about judges would be enough to have him yank out his remaining two hairs in frustration and shout, "Doh!"
In fact, some lawmakers say the section on judicial retention elections in the voter information pamphlet has been compared to reading through the IRS tax code.
For those who haven't seen it, the section includes the name and a brief bio on each judge. In a spreadsheet format are the results of two 15-question surveys from attorneys who appear before a judge and from jurors who serve in their court. Each question has a number, and voters need to flip to the front of the booklet in order to find the key that contains the text. Flipping back and forth comparing questions to numbers, plus result percentages, quickly becomes a dizzying blur.
Lawmakers, with the help of court officials, now say that section of the voter guide needs to be scrapped and a "Simpsons approach" needs to be taken to help better inform voters about a judge's performance. A statistical study of voters in judicial retention elections shows that few appear to use the complex section in the voter guide to make a decision.
Fortunately for Utah's judges, the vast majority of voters choose to retain them unless an organized campaign singles one out, as in the case of 3rd District Judge Leslie Lewis.
State Sen. Chris Buttars, R-West Jordan, co-chairman of the Judicial Retention Election Task Force, said voters he's talked to can barely figure out the survey results, let alone understand the questions in the survey.
During the task force meeting Tuesday, one legislative staffer admitted he and his wife studied the profiles of a few of the 62 judges up for retention election last year. After some intense study, the staff member said he and his wife found one judge whose performance appeared sub-par, but once at the voting booth his wife admitted to him that she forgot which judge it was.
Short of having a law degree or a degree in statistics, Sen. Greg Bell, R-Fruit Heights, said the pamphlet is just too confusing for the average voter and that a "Simpsons approach" should be taken to simplify the information.
"I don't think the public has a clue" who judges are or how they are evaluated, Buttars said.
Utah Supreme Court Chief Justice Christine Durham, who is also a member of the task force, cautioned about cutting out pertinent information on how judges are evaluated.
Unlike other elected officials, whose performance is gauged on their stance on political issues and their voting record, judges are gauged more on how unbiased, balanced and professional they are. District and appeals judges in Utah run for uncontested retention election at the end of their six-year terms.
It's not a matter of how a judge rules on a case but how fair and professional they are, said Sen. Lyle Hillyard, R-Logan. "Sometimes being a very good judge isn't making everyone happy," Hillyard said.
On Tuesday, the task force voted unanimously to start a work group of lawmakers, court officials and perhaps a marketing professional to completely re-do the voter information section on judges. The results could be finished for a review during the next task force meeting on Oct. 1.
Rep. Roz McGee, D-Salt Lake, suggested that perhaps the problem with informing voters had more to do with a need for better civics education in public schools.
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Former Missouri chief justices defend court plan – [Commentary]
By DAN MARGOLIES, Kansas City Star
August 13, 2007
The spate of attacks aimed at upending Missouri’s 67-year-old nonpartisan court plan has drawn a pointed response from four former chief justices of the Missouri Supreme Court.
Responding to an editorial in the Springfield News-Leader criticizing the judicial selection process for not being open, the four defended it as necessary to protect the careers and reputations of judicial candidates.
Clients might hire other lawyers if they learned that their attorney was seeking to become a judge, they wrote in a letter to the newspaper’s editorial-page editor. The publicity could discourage qualified candidates from applying at all.
And that same publicity, they said, “would encourage lawyers who have not earned a good reputation to apply for judgeships for the purpose of having their names included among those discussed in the press for appointment to an appellate bench.”
Moreover, they said, “some excellent lawyers and judges are subject to frivolous complaints or silly suits. Public discussion of meritless complaints would be a disservice and discouragement to many, very well qualified applicants.”
The letter was signed by Andrew Jackson Higgins, who was chief justice from 1985 to 1987; Edward “Chip” Robertson, chief justice from 1991 to 1993; Ann K. Covington, chief justice from 1993 to 1995; and John C. Holstein, chief justice from 1995 to 1997. All but Higgins were appointed by former Gov. John Ashcroft, a Republican. Higgins was appointed by former Gov. Joe Teasdale, a Democrat.
The News-Leader’s editorial ran amid an increasingly vitriolic campaign by some Republican lawmakers to modify or jettison the process by which judges in Missouri are selected for the Supreme Court and the Court of Appeals. The process, which Missouri adopted in 1940, aims to insulate the judicial selection process from partisan politics.
The campaign reached fever pitch after Gov. Matt Blunt’s office criticized the seven-member Appellate Judicial Commission for supposedly acting in secret when it picked the finalists for a vacancy on the Supreme Court. Blunt, who has frequently lambasted “activist judges” and backed measures to strip them of jurisdiction, has demanded transcripts of the proceedings and extensive background material on all 30 applicants for the position.
The commission screens candidates and submits three names to the governor, who has 60 days to pick one. The commission consists of three members elected by lawyers, three appointed by the governor, and the chief justice of the Supreme Court.
Last month, the panel sent the names of three appeals court judges to Blunt: Ronald Holliger of Blue Springs and Nannette Baker of St. Louis, both of whom were appointed to the bench by former Gov. Mel Carnahan, a Democrat; and Patricia Breckenridge of Nevada, Mo., who was appointed by former Gov. Kit Bond, a Republican.
“You don’t see any of these candidates who has done anything outside the norm of what judges do,” Robertson said in an interview last week. “I’ve asked — and nobody’s been able to point to it — for an opinion that displays judicial activism. …
“I think this is a panel that meets the governor’s criteria. And what I’ve said is that the governor got what he wanted. He just may not have gotten who he wanted.”
Robertson, now in private practice with the local firm of Bartimus Frickleton Robertson & Gorny, may seem an unlikely critic of the governor. A lifelong conservative Republican, he was roundly bashed when Ashcroft appointed him to the Supreme Court 22 years ago. Robertson was Ashcroft’s chief of staff at the time and all of 33 years old.
But Robertson said he was incensed over the attacks on the nonpartisan court plan, which he insisted has worked well for nearly 70 years.
“We’ve avoided in this state all of the controversy, all of the difficulty that has attended court systems in other states that have a different method,” he said.
Robertson is one of several prominent Missourians behind the newly formed Missourians for Fair and Impartial Courts, a group that aims to counter the attacks on the Missouri plan.
“You begin to hear this steady drumbeat of ‘judicial activism,’ ” he said. “But when you ask somebody for an example of that, they can’t give you one, beyond something a federal judge may have done …
“Somebody thinks there’s a political advantage to be gained or that we’re in danger of having the judiciary do some things that our judiciary has never done.”
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Judicial accountability statute unlikely to resurface
David Kranz, Sioux Falls Argus Leader (South Dakota)
August 3, 2007
When South Dakota voters resoundingly defeated a Judicial Accountability measure in the 2006 election, it seemed likely that supporters would revisit the issue next year.
When South Dakota voters resoundingly defeated a Judicial Accountability measure in the 2006 election, it seemed likely that supporters would revisit the issue next year.
If that does happen, Bill Stegmeier told me he would not be the one leading the charge.
"I don't believe you will see anything on the ballot next year. It is just too soon to do anything. If someone does, it won't be me," said Stegmeier, a Tea resident who was the state sponsor of Amendment E in 2006.
The amendment on the 2006 ballot would have created a special grand jury of South Dakotans to review complaints against judges, jurors and other elected officials such as county commissioners, members of city councils and boards.
While he might not take the lead on any similar amendment, Stegmeier says that does not mean he won't be somewhere in the background.
"If it does happen again, and I hope it does, I would support it financially. I wouldn't participate through J.A.I.L., though."
The J.A.I.L. organization, (Judicial Accountability Initiative Law), communicates nationally through e-mail about the need for revisions in the law. Through the leadership of Ron Branson, a California resident, they helped promote the amendment in South Dakota, where it first appeared on a ballot.
Since midway through the 2006 campaign, state supporters of Amendment E have been at odds with the J.A.I.L. faction from out of state.
The possibility that amendment supporters won't try to put it on the ballot next year doesn't surprise Tom Barnett of Pierre, head of the State Bar Association. It wouldn't make a difference, he said.
"I don't hear a word. I would think with the level of rejection, 89 percent, I would assume it is dead issue," Barnett said.
Lately, the J.A.I.L group's criticism has focused on former Supreme Court Justice Sandra Day O'Connor for speaking out against the South Dakota amendment and then her recent lectures around the country criticizing the judicial accountability proposal.
In the meantime, Stegmeier has a recommendation about what to do next.
"If it was up to me, I would alter the make-up of the judicial qualifications committee. They are all insiders with no representations of the people," he said.
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Buy stock in a law firm? There's talk again
An Australian firm went public this year. Such a move seems imminent in Britain, reviving the U.S. debate.
By Chris Mondics, Phildephia Inquirer
August 11, 2007
Globalization of the legal industry and intense competition for business and legal talent have renewed debate over proposals to permit law firms to raise capital as publicly traded companies, much like Ford and General Motors.
Much of the recent impetus comes from legislation likely to be enacted this year in the United Kingdom to allow law firms to sell shares to investors. In Australia, the firm of Slater & Gordon went public in April, and its stock is trading nearly 70 percent above its initial offering price.
No one expects the U.S. legal profession to soon abandon its centuries-old model of partnerships barring outside investment. Each state bar would have to sign off, and resistance is strong.
One obstacle: Most state bar associations allow lawyers to take their clients with them when they jump to another firm.
The rule permits top lawyers to function much like football and baseball superstars, selling their services to the highest bidder. Experts on the economics of the legal industry say the rule would serve as a powerful disincentive to investors.
Even so, events in the United Kingdom and Australia and the rapid expansion of U.S. firms overseas have helped trigger a discussion about how the U.S. legal business might be reshaped if outside investors had a stake in law firms.
"I personally would welcome a dialogue on nonlawyer ownership of law firms," said Mark Alderman, chairman of the Wolf, Block, Schorr & Solis-Cohen L.L.P. law firm in Philadelphia. "And I would welcome a dialogue on noncompetes for lawyers. Those are two rules that still may have important purposes, but may have become a bit anachronistic."
Alderman said the down side of not acting could be that firms in Britain or other international markets might gain access to capital markets. "We could find ourselves potentially at a competitive disadvantage."
Sheldon Bonovitz, chairman and chief executive officer of Philadelphia-based Duane Morris L.L.P., said one potential attraction of outside ownership was that partners could convert some of their own interest into cash.
"I think that conceptually it is something that could make sense in the future; and the reason is, there are several firms now with well over $1 billion in revenue. You become very institutionalized and corporate, and you create a value in the franchise," he said. "You can see firms in the next five years having $2 billion in revenue, and you ask, how do owners really cash out their value? You do it by bringing in other investors."
Bruce MacEwen, a New York-based consultant to law firms in the United States, Britain and Canada, said the largest British firms, the so-called magic-circle firms, might eventually use their access to investor capital to crack open the U.S. legal market.
"If a magic-circle firm were to . . . go public and have access to the deep pool of capital, they could use it to build their practices in New York, and the first thing you would hear out of the mouths of managing partners is 'we need a level playing field,' " MacEwen said.
Much of the resistance to the idea of publicly traded law firms in the United States is based on the idea that the law and lawyers play a special role in a democracy and that making them more like traditional businesses would undermine service to clients. A generation ago, law firms rarely raided one another for partners, and stuck by gentlemen's agreements not to poach one another's clients.
But those days are long gone, as the vibrant competition among firms to hire away high-producing partners amply attests.
"It's pretty clear right now that law firms are for-profit businesses," said Larry Ribstein, a law professor at the University of Illinois College of Law and an expert on law-firm economics. "And the only difference really between a law firm and any other business is that law firms don't have the same flexibility to choose a financial structure that is more conducive to its long-term interests."
Britain began its own restructuring of the legal industry several years ago with the appointment of a commission aimed at encouraging more competition. Among the recommended changes was a proposal to permit outside investment.
Proponents suggested at the time that such financing structures would encourage creation of large retail-oriented law firms, a kind of legal Wal-Mart providing affordable services to the middle class.
Tony Williams, a principal in Jomati Consultants L.L.P., a legal-consulting firm based in London, said he expected a number of midsize British firms to take advantage of the financing options once the new system takes effect, probably in 2010 or 2011.
While that might in turn spur efforts in the United States, huge obstacles remain.
Chief among those, according to Mitt Regan, a law professor at the Georgetown Law Center and a codirector of its Center for the Study of the Legal Profession, is the ability of lawyers to leave a firm with their clients.
"Running a law firm can be like managing a baseball team made up totally of free agents: Your entire starting lineup can move to another team," he said. "Such partners are the equivalent of short-term shareholders who won't hesitate to seek a better return elsewhere. When they leave, the firm loses both capital and business assets."
Most lawyers like it that way.
"If you are a free agent, you like your free-agency status," Alderman said. "But not if you are trying to run a law firm."
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Comment: Judicial races merit a neutral approach – [Op-ed]
By Thomas Phillips, San Antonio Express
August 10, 2007
Editor's note: Phillips presented the following remarks at the annual meeting of the National Governors Association in Traverse City, Mich., on July 23.
Chief Justice William Rehnquist was fond of calling America's independent judiciary the crown jewel of our constitutional system.
What is judicial independence? To me, it means that other government officials do not interfere with judicial rulings or intimidate judicial officers, no matter how unpopular the judicial decisions might be.
Why is judicial independence even necessary in a democracy?
We have learned that democracy alone cannot guarantee freedom and security. Without strong institutions, including courts, to enforce the rule of law, electoral winners may trample on the losers' rights. And democracy alone cannot ensure economic progress; international capital comes to countries where contracts are enforced and arbitrary governments are restrained.
Because they have such power, it is imperative that judges exercise restraint. Frankly, it is not easy to find men and women who have not only the intellect to interpret the law, but also the humility to honor proper limitations on their role.
Virtually every state has Codes of Judicial Conduct. These codes constrain judicial behavior, so judges will be, and will appear to be, as impartial and apolitical as possible.
Increased politicization of the judicial branch has imperiled these norms. Judges, by choice or necessity, are making more controversial decisions on more contentious policy issues than ever before. As a result, political parties and interest groups are more keenly interested in judicial positions at all levels.
Record amounts are contributed in judicial races, most of it by individuals and groups with an economic stake in the judges' rulings. Thus, both press and public increasingly see judges less as neutral arbiters of the law than as mere politicians in robes.
The Codes of Judicial Conduct are disappearing as a viable tool to preserve judicial independence. First, much of the campaign spending in the most fiercely contested judicial races is by independent special interest groups, not by the candidates' own campaigns. The candidates have no control over these groups or what they say.
Second, several federal courts have, in the name of free speech, struck down code restrictions on judges announcing their views on disputed policy issues, personally soliciting campaign funds, identifying with a particular political party, making statements that appear to commit them on a particular matter that may come before the court and making pledges or promises of performance in office.
Armed with these judgments, political parties, individual and PAC contributors and interest groups are demanding commitments from judicial candidates in particular cases before they have heard a single witness or read a single brief.
The judiciary needs the governors' help. Among other things, governors should examine how judges are selected. No system is perfect, but some methods seem especially bad.
Partisan elections are the worst. Justice is not Democratic or Republican, and judges should not be linked with a party either in their own minds or in public perception.
Nonpartisan elections are better, but they do nothing to reduce the need for campaign contributions. Moreover, they may make single-issue interest groups even more influential in elections.
Legislative or gubernatorial appointments free judges from raising campaign cash or selling themselves to voters like soap flakes. But appointed judges are not accountable to the people, whom they ultimately serve.
Merit selection, or initial appointments followed by yes/no elections where voters can retain or remove their judges, seems to work best. This system allows the voters to pass on every judge, and no state that has adopted it has ever changed to another system.
Surveys of corporate lawyers rank partisan election states at the bottom in judicial fairness and impartiality. Since 2002, the American Tort Reform Association has identified 26 jurisdictions as judicial hellholes, some more than once. Sixteen are in one of the eight partisan election states, seven are in one of the 17 states that elect most or all trial court judges in nonpartisan election, while only one each is in a state with legislative election, gubernatorial appointment or merit selection.
In short, that makes judicial excellence an economic development issue in America just like in developing nations.
Thomas R. Phillips, a partner with the law firm of Baker Botts, was formerly chief justice of the Texas Supreme Court.
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Judges on ABA Panel Describe Living in Fear, Years After Unpopular Rulings
Mike McKee, The San Francisco Recorder
08-13-2007
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]."
Greer, who said he's on the federal bench, was one of four current or former judges who appeared in a 90-minute seminar in San Francisco's Moscone Center West to describe how their lives were affected by their rulings in high-profile cases involving hot-button issues.
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.
Soon after the New Jersey Supreme Court issued its ruling on same-sex marriage -- which didn't fully appease parties on either side -- Rivera-Soto said he got a letter from a radio talk-show host announcing that his home address and phone number had been broadcast. The letter writer also advised the justice that the show's prime audience included white supremacists, skinheads and members of both the Aryan Nation and the Ku Klux Klan.
"I hope you have a good life," Rivera-Soto quoted from the letter. "However long that lasts now that people know how to find you."
Greer talked about he and his wife had to be placed under 24-hour watch after Operation Rescue posted their home address and phone number on its Web site. All of their mail was checked by authorities and on one occasion dead flowers were delivered to their condominium with a note reading, "No Food, No Water" -- a reference to Schiavo.
"It got to the point," Greer said, "that we felt a little trapped in our apartment."
O'Neill said she "pretty much ... became the anti-Christ" after issuing an order preventing anti-abortion activists from harassing doctors. Her home address also was posted on Operation Rescue's Web site and both her office and cell phones were flooded with "hate messages."
O'Neill said she was placed under 24-hour police protection too, but found out "only much later ... that there had been certain kinds of death threats against me."
Reynoso, now a professor emeritus at the University of California at Davis' King Hall School of Law, didn't talk about threats, but contended that the campaign to force him off the bench was filled with misinformation. Word was out that he was putting murderers back on the streets, Reynoso said, even though his decisions only reversed death sentences, not the convictions.
"The people who were saying this knew it was not true," he said. "The public didn't."
O'Neill and Reynoso complained that judges, by the nature of their position, aren't allowed to respond to allegations and threats, and that local bar associations can only do so much. Greer complained about the loose-cannon nature of bloggers who can say anything -- and stir up hatred -- without being held accountable.
Rivera-Soto, however, said he felt criticism and harsh reactions come with the territory for judges, and that in the long run they're good for the judiciary.
"We're treated like demigods, and we're not," he said of judges. "We put our pants on like everybody else and we make mistakes."
Rivera-Soto said many judges bring an ivory tower mentality to their work, and make themselves targets of wrath.
"If we have an aristocracy in the United States," he said, "it's the judiciary. And judges should remember that aristocracies generally don't come to a good end."
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