What's the Best Way to Select the Judges We Need?
Letters-to-the-Editor, The Wall Street Journal
August 22, 2008
Bipartisan federal judicial nominating commissions, as endorsed by the American Bar Association, do not remove constitutional powers from the president or the Senate as suggested in your editorial "The ABA Plots a Judicial Coup" (Aug. 14).
Rather, as currently used in eight states to broad acclaim, such commissions bring transparency and consensus to the process senators already use to recommend candidates to the president for appointment of federal judges. Such commissions, which senators themselves establish, help ensure that the president ultimately receives the best counsel from a wide range of people -- lawyers and nonlawyers alike. The choice of who is nominated remains with the president. The choice of whether or not to confirm remains with the Senate.
The editorial also refers to the ABA's history of evaluating federal judicial candidates. This is an entirely different matter, and Senate leaders of both parties have called our process the "gold standard." The ABA's extensive investigations and evaluations consider only three criteria: integrity, professional competence and judicial temperament -- not political considerations.
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Young Lawyers Section honored
Cosby Woodruff, The Montgomery Advertiser
August 23, 2008
The Alabama State Bar Association's Young Lawyers Section received recognition from the American Bar Association for a project that introduces high school students to the civil and criminal justice systems.
The group received a first place award of achievement for its Minority Pre-Law Conference program that addressed a shortage of minorities in the legal profession.
Navan Ward of Beasley Allen Law Firm in Montgomery chaired the conference committee.
"The goal of this program is building confidence in our system of justice, in our judiciary and in the lawyers and judges who provide legal service to all Americans despite barriers of language and culture," he said in a news release.
"If lawyers and judges can achieve diversity, we believe our citizens will have more confidence in the ability of the legal and judicial system to help solve their problems."
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Capt. Kirk may get beamed off Alabama TV ad
By PHILLIP RAWLS, The Associated Press
August 24, 2008
MONTGOMERY, Ala. (AP) — William Shatner, the "Star Trek" captain who now plays a lawyer on "Boston Legal," may have to give up one of his roles — that of a TV pitchman for an Alabama law firm.
The state Board of Bar Commissioners has asked the Alabama Supreme Court to place new restrictions on lawyers' ads, including no paid actors or testimonials.
Auburn lawyer Mike Slocumb, who uses Shatner in his TV ads, says the proposed rules would violate his First Amendment right of free speech.
Not so, says Talladega attorney Blake Lazenby, who headed a State Bar committee that developed the proposals to regulate lawyers' ads.
"The goal is not to present anything misleading and to make them as dignified as the law will allow," he said Friday.
Only a small percentage of Alabama's lawyers advertise on radio or TV. But some have found it an effective way to attract clients, particularly people facing problems with auto accidents, Social Security disability determinations, bankruptcy and some criminal charges.
Some TV ads are done exclusively for a single firm. Others, like the Shatner ads, are sold to several law firms across the country that don't share the same market.
Tony McLain, general counsel for the Alabama State Bar, said that in addition to Shatner, Alabama lawyers have run TV ads using actors from the old TV shows "L.A. Law" and "The Man from U.N.C.L.E."
It's not just actors who have drawn attention. Some ads have used wreck scenes and other emotional content to grab viewers' attention.
"People have found the ads in Alabama, which are not nearly as bad as some other places, to be offensive," said Birmingham attorney and State Bar President Mark White.
Blake headed the State Bar's Committee on Disciplinary Rules and Enforcement, which included defense and plaintiff lawyers from throughout the state and current and former judges. The committee developed the proposed rules and got them approved by the Board of Bar Commissioners.
The board has presented them to the Alabama Supreme Court and is awaiting word on whether the court will require Alabama lawyers to start following them. There is no time limit on when the Supreme Court must decide.
Not everyone on the Board of Bar Commissioners supports the proposed rules. Commissioner Thomas Ryan Jr. of Huntsville wrote a letter to his fellow commissioners predicting the rules will be successfully challenged on First Amendment grounds if approved by the Court.
The proposed rules provide that in a law firm's radio and TV ads, no person's voice or image, other than a member of the law firm, may be used.
The visual images in TV ads are "limited to the advertising lawyer in front of a background consisting of a single solid color, a set of law books in an unadorned bookcase, or the lawyer's own office, with no other persons shown."
Still pictures and illustrations would be allowed, but no video of car crashes or other emotional scenes.
Background music could be used, but no jingles.
Lazenby, who doesn't advertise on radio and TV, said his committee had near perfect attendance and lots of discussion as it sought to develop rules that would respect free speech while protecting the dignity of the profession.
He said TV viewers are fascinated by a well-known actor doing an ad for a lawyer, and they think it somehow makes that lawyer better qualified than other lawyers.
"It tends to mislead people," he said.
Slocumb said he prefers to use someone in his ads who is trained to appear before a camera, and the ads don't mislead anyone because people recognize Shatner.
"Everybody knows he's an actor," Slocumb said.
White, the State Bar president, sees it differently.
"The profession, because it is a profession, dictates we control the conduct of the lawyers," he said.
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Organization of judges pushing for reform
By Gregory Childress, The Herald-Sun (Durham, NC)
Aug 22, 2008
DURHAM -- The president of the American Judicature Society (AJS), a non-partisan organization of judges, lawyers and other members of the public who want to improve the nation's judicial system, said Thursday that removing politics from the process to select judges is one of America's biggest judicial challenges.
Retired Massachusetts Appeals Court Judge Gordon L. Doerfer said the Des Moines-based group would rather see states such as North Carolina do away with judicial elections. Instead, Doerfer said the AJS prefers a judicial nominating process by which individuals would apply for vacancies, go through a screening process and eventually receive appointments from a governor.
"It's basically an attempt to get politics out of the process," said Doerfer during an interview at The Herald-Sun.
Doerfer, who was accompanied by Duke University law professor Robinson O. Everett, said judges aren't supposed to be politicians. He said being forced to speak out on controversial issues during elections can compromise a judge's ability to be fair and impartial.
"Judges are suffering terrible temptations to speak out on issues," Doerfer said. "Judges are not supposed to be politicians, they're supposed to be applying the law."
The AJS also operates the AJS Institute of Forensic Science and Public Policy in Greensboro. The institute's focus is the better use of forensic science in the courtroom to improve the administration of justice.
The institute is also working to improve eyewitness identification through the use of proper procedures. Officials believe the use of sequential photo lineups, for example, produce more accurate results than traditional lineups where witnesses are asked to pick a suspect from among six people.
"There is 30 years of lab experience that suggest sequential procedures are more accurate," said Bob Borgmann, a research and education associate at the institute in Greensboro.
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Law School Rankings Reviewed to Deter 'Gaming'
By AMIR EFRATI, The Wall Street Journal
August 26, 2008
The most widely watched ranking of U.S. law schools may move to stop an increasingly popular practice: schools gaming the system by channeling lower-scoring applicants into part-time programs that don't count in the rankings.
U.S. News & World Report is "seriously" considering reworking its ranking system to crack down on the practice, says Robert Morse, director of data research at the magazine, who is in charge of its influential list.
Such a move could affect the status of dozens of law schools. It would likely reverse gains recently made by a number of schools that have helped their revenue by increasing their rosters of part-time students with lower entrance-exam scores and grade-point averages, without having to pay a price in the rankings.
In some cases the part-timers' course load is barely less than that of full-timers, and they are able to transfer into the schools' full-time programs in their second year. Statistics about second-year students' pre-law school scores also aren't counted in the rankings.
Counting part-timers would roil the law-school rankings, which have a big impact on where students apply and from where law firms hire. A number of law-school administrators interviewed about the potential change contend it could have another effect: narrowing a traditional pathway to law school for minorities and working professionals. Those groups often perform worse on the important Law School Admission Test, or LSAT, and schools could feel pressure to raise their admission thresholds.
A change in criteria would "catch the outliers but punish part-time programs that have existed forever and aren't doing it to game the system," says Ellen Rutt, an associate law-school dean at the University of Connecticut. If U.S. News makes the move, many schools with part-time programs would have a tough choice: Leave their admission standards for part-timers unchanged, which could hurt their rank, or raise the standards, likely shrinking the programs and cutting revenue.
Mr. Morse of U.S. News says the magazine will run tests of how the change would play out in rankings, and then decide in January. How colleges adjust their programs in response isn't the magazine's responsibility, he said. The ranking is published in the spring.
Tom W. Bell, a law professor at Chapman University, Orange, Calif., who developed a rankings model that mimics the one used by U.S. News., says that if the change had already taken place this year, some schools could have fallen from the magazine's "first tier" of the top 50 schools to the second tier, and some from the second to the third. For example, Southern Methodist University and the University of Connecticut, tied at 46th, might have fallen out of the top 50, and Hofstra and Stetson universities might have sunk below 100. Representatives for the schools didn't dispute his analysis, done at the request of The Wall Street Journal.
Open Secret
It's become an open secret that many law-school deans strategize specifically to improve their rank in the magazine's annual publication, to try to reap more interest by employers in their students and energize alumni donors. Even movements of one point in median LSAT scores, or a few hundredths of a point in median undergraduate grade-point averages, can change a school's position on the list.
One of the top beneficiaries of the current U.S. News criteria is Phillip Closius, former dean of the University of Toledo's law school. He led the school's rise from the list's fourth tier to its second tier within a few years. After he took the helm of the University of Baltimore law school last year, that school also quickly climbed the rankings, to 125 this year from 170 last year, he says. (Schools in the third and fourth tiers aren't publicly ranked -- instead they are grouped together -- but deans can find out where they placed.)
Mr. Closius's winning strategy in both places: Cut the number of full-time students accepted into the program to boost the median LSAT scores and GPAs, which together account for more than 20% of a school's ranking. In their place, the schools add more part-time students, who can transfer to full-time the second year.
Mr. Closius says having some students complete fewer classes at first gives them a better chance of academic success. He says he also made other changes that improved the school's ranking, including keeping better track of graduates' employment status after graduation. The moves benefit students, he says: At Toledo, more large law firms began interviewing students after the school's ranking climbed, and at Baltimore, he recently got multimillion-dollar grants and donations for a new building.
A number of other law schools across the country have similar approaches. At Seton Hall University, for example, Wyckoff, N.J., native Al Manzo is entering the part-time day program after graduating from college this past spring. He's taking one less class this semester than the full-timers, but will make it up next summer and join the full-time program. Seton Hall, ranked 66th, declined to say how many students were in its part-time day program. Loyola University Chicago and St. John's University, among others, include some similar students in their part-time day programs.
"If it wasn't for the part-time program, I wouldn't be going to the school," Mr. Manzo says. He adds, "The LSAT and GPA score isn't the most effective way to determine success in law school."
Voracious Readers
Prospective students are voracious readers of the annual U.S. News rankings, as are some prospective employers and alumni donors. Generally, the lower a school's ranking, the smaller the percentage of its graduating class will land high-paying jobs at bigger firms or prestigious judicial clerkships -- though a recent study by the National Law Journal of the 2005 graduating classes across the country shows that a higher rank doesn't always translate into better job prospects at the biggest U.S. law firms.
Even a slight drop in the rankings can put a law-school dean's job in jeopardy, especially during a tough job market for graduating lawyers. During the current economic downturn, hundreds of lawyers have been laid off. Meanwhile, longer-term economic trends in the legal profession have pushed down starting salaries for most young lawyers, leaving many recent graduates from lower-tier schools with dismal prospects.
Initially, "the effect of a drop in the rankings is psychological, but it can have real institutional consequences," says Bill Henderson, a law professor at Indiana University-Bloomington who tracks the legal job market. For some schools that fail to effectively manage their U.S. News ranking, the drop could cause a snowball effect over several years in which there is a "falloff in good applicants and eventually a tapering off of employers," he says.
The rankings played a role in the 2006 resignation of Nancy Rapoport, who was dean of the University of Houston Law Center, which had fallen to 70th from 50th in the span of a few years. (It's now tied for 55th.) Ms. Rapoport, who is now a law professor at the University of Nevada, Las Vegas, says managing the rankings as a dean is "like trying to meet analysts' quarterly expectations by massaging the numbers."
A change could upend some students' expectations. When John Powell was deciding where to attend law school earlier this year, he skipped over a Bay Area school because it fell out of the top 100 this year. "If I'm coming out of a school that's falling in the rankings, it's not going to look good for me" in terms of job prospects, Mr. Powell says. So the 22-year-old opted for the University of the Pacific, tied for 95th, in his hometown of Sacramento, Calif.
If U.S. News had made the change for this year's rankings, Pacific could have dropped to 100th, or even to the third tier, though Pacific says the median LSAT score and GPA of this year's incoming part-time students are stronger than last year's. Still, Mr. Powell says he made the right choice because area law firms are familiar with the school -- and he'd be happy with a local job.
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The messenger may seem ironic, but the message is right: Alabama's system of electing judges badly needs to be changed – [Editorial]
The Birmingham News
August 20, 2008
THE ISSUE: The messenger may seem a little funny, but the message is right: Alabama's system of electing judges needs to be changed.
There's a certain irony to Deborah Bell Paseur's message last week to a Birmingham legal group.
Paseur, you see, is a candidate for the Alabama Supreme Court - a job she told the Federalist Society should not be an elected position at all.
"Begging for votes and soliciting money is demeaning to the institution of the judiciary," she said. "I want to ... get politics out of it as much as possible."
Irony aside, Paseur is absolutely right.
Alabama would be far better served if, as Paseur recommends, judges were appointed to their jobs based on their qualifications, not based on how good they are at shaking down campaign donors and how successfully they trash their opponents.
Going to a merit-based system would not rob Alabamians of their voice in the court system; appointed judges would have to face voters in retention elections. If judges stray too far afield from voters' notion of justice, they will be in the unemployment line. That's accountability, but without the costly, vicious and embarrassing races the state has experienced far too many times in judicial elections.
Paseur said the current system leaves the impression justice is for sale. More precisely, the current system creates the terrible perception courts are bought and paid for by special interests that have their own narrow ideas about justice.
What Paseur said she favors is not something radical or new.
Although there is no shortage of ways to select judges, Alabama is one of only a half-dozen states that use partisan elections. Some other states select judges through nonpartisan elections, but most use some form of merit-based appointment that attempts to reduce the politics in the court system.
Even among states with partisan elections, Alabama has become notorious for its expensive and brutal judicial races. When judicial candidates in other states start going over the top, Alabama is the cautionary tale held out to bring them back in line. Nobody wants to be us. We don't even want to be us.
The Alabama State Bar has made it a priority for years running to change our form of selecting judges. The current president, Birmingham lawyer Mark White, is pushing for at least incremental improvements by backing nonpartisan elections.
There's some concern that the interests - business vs. trial lawyers - will remain just as engaged even if candidates don't wear party labels. But it may be a more doable fix, and one thing is pretty clear: It can't be worse than what we have now.
As a candidate herself, Paseur might be an ironic person to suggest judges shouldn't be in the election business. No matter. This is at least one time a candidate is telling the absolute truth.
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McCalla, Alabama, native Judge Patrick Errol Higginbotham to get national legal award
ERIC VELASCO, The Birmingham News
August 18, 2008
A McCalla native who now serves as a senior judge on the 5th U.S. Circuit Court of Appeals will receive the 2008 Lewis F. Powell Award for Professionalism and Ethics from the American Inns of Court.
Patrick Errol Higginbotham, who lives in Texas, will be honored in an Oct. 11 ceremony hosted by U.S. Supreme Court Justice Samuel Alito Jr. at the Supreme Court building in Washington.
Higginbotham, 70, attended the University of Alabama on a tennis scholarship, where he received an undergraduate degree in 1960 and a law degree in 1961.
He was a professor in residence at the university for three semesters in the 1990s. An endowed scholarship at the university is named for him. The Powell award recognizes senior lawyers and jurists who have devoted their careers to raise standards of ethics and professionalism, according to the American Inns of Court Web site.
Higginbotham practiced law in Texas until 1975, when President Gerald Ford nominated him as a U.S. District Court judge.
In 1982, President Ronald Reagan nominated him to the federal appeals court. In 2006 he became a senior judge, but continues to carry a full caseload.
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A local history as good as the law allows
John Sledge, Mobile Press-Register
August 17, 2008
It is only a slight exaggeration to say that American history is legal history. From the earliest documents that established our nation to the landmark Supreme Court decisions that defined or reaffirmed our fundamental rights as citizens, to the blizzard of deeds, wills, incorporation papers, powers of attorney, marriage licenses, divorces and such that have ever regulated the flow of daily life, we are a nation of laws.
It should therefore follow that the legal history of a particular locale, properly interpreted and presented, ought to provide not only considerable insight but a stock of colorful characters and situations to enliven any discussion. Happily, such is most decidedly the case with a beautifully designed and written new book sponsored by the Mobile Bar Association, "Mobile's Legal Legacy: 300 Years of Law in the Port City" (Association, $39.95) by Ben Erickson.
The best lawyers do their homework, and the officers of the Mobile Bar Association certainly did theirs in planning this effort. To begin with, Erickson, a native Mobilian who lives in Fairhope, is a talented wordsmith whose 2000 book "A Parting Gift" was a best seller. Secondly, the book's designer and photographer, Robin McDonald of Leeds, demonstrates an eye for intelligent and engaging layout within a lush format that includes copious illustrations and sidebars. All of which is to say that "Mobile's Legal Legacy" is far above the average for corporate-type histories.
Erickson begins by sketching how the area's Indian tribes governed themselves, and then notes that it was the French who introduced a formal legal structure in 1702. Appropriately enough, Bienville himself was the defendant in the city's first trial when he was accused of sneaking supplies from the king's warehouse and selling them at a significant markup. Despite a dogged case by an independent investigator, the charges were never proved.
Life was difficult for Mobile's earliest residents, and a thicket of laws and regulations hemmed them all around. According to Erickson, during the Spanish period (1780-1813) the Code O'Reilly dictated harsh punishment for anyone who "shall revile our saviour, or his mother, the most holy Virgin Mary." Among the unpleasant consequences were having one's tongue cut out and having one's property confiscated, with half going to the public treasury and the other half "to the informer." Those guilty of "the detestable crime against nature homosexuality" were to be burned and their property turned over to the treasury. It is indeed sobering to realize some of the horrors that have played out beneath our lovely live oaks.
During the 19th century, an impressive array of local lawyers dedicated their energies to the improvement and regulation of the community. These included titans like Harry Toulmin, who signed the arrest warrant for Aaron Burr, and Henry Hitchcock, a millionaire who helped finance the construction of local landmarks like Barton Academy and Government Street Presbyterian Church. Hitchcock also authored the state's first book in 1822, "The Alabama Justice of the Peace." Perhaps most importantly, John A. Cambell became the only Mobile lawyer to serve on the United States Supreme Court (1853-1861). He was a moderate and supported the Dred Scott decision in 1857.
Erickson brings his narrative up to the present day, with coverage of important civil rights cases like Birdie Mae Davis and profiles of pioneering black attorneys like Veron Z. Crawford, Frankie Fields Smith (Mobile's first black female lawyer) and Michael A. Figures (the first black person to be elected to the Alabama Senate).
With the born storyteller's sure grasp of the best material, Erickson does not disappoint when he presents some of the wilder episodes of the local legal scene. Among the most astonishing of these is the quixotic case brought by Sonny Wintzell against the Smithsonian Institution over the salvage rights to the sunken U.S. warship Tecumseh. Wintzell's claim that salvage rights had been promised him by Gov. George Wallace was championed by the legendary M.A. "Bubba" Marsal until dismissed by the U. S. District Court.
The volume concludes with a series of short histories of law firms, highlighted by pictures of the principals or their offices. Among these are century-old white-shoe firms ensconced in historic downtown landmarks; up-and-coming outfits with young, idealistic partners; and individuals who own considerable reputations. Perhaps the most prominent of the latter is Robert F. Clark (aka "Cowboy Bob") who won the "Who Would You Call if You Murdered Your Wife?" Award in 2000. What emerges most clearly from these profiles is an abiding love of the law and a commitment to helping improve the often difficult circumstances faced by clients. Perhaps J. Elizabeth Wilson, a bankruptcy attorney, put it best: "It is wonderful to know you have instantly made someone's life better. I don't ever want to retire. I want to be at my desk when I go."
Anyone with even a passing interest in local history will find much to entertain and amaze in these pages. "Mobile's Legal Legacy" shines as a model of community history.
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Michigan court rejects motion to disqualify judges
By DAVID EGGERT, ASSOCIATED PRESS
August 13, 2008
LANSING -- The Michigan Court of Appeals today rejected a motion to disqualify judges from deciding a challenge to a sweeping ballot measure that would cut judges’ pay and cost some their jobs.
Backers of the proposed constitutional amendment had argued that seven of 28 judges on the appeals court shouldn’t hear the case because they would lose their jobs if the proposal makes the November ballot and is passed by voters.
Opponents led by the Michigan Chamber of Commerce had accused the Reform Michigan Government Now group of improperly shopping for judges.
A three-judge panel rejected the recusal motion, citing the “rule of necessity” letting judges hear a case if every judge otherwise may have to be disqualified. The U.S. Supreme Court, for instance, has decided a case challenging the constitutionality of legislation that repealed salary increases for federal judges.
Judges Bill Schuette, William Whitbeck and Patrick Meter dismissed the ballot group’s attempt to distinguish between judges who would lose pay and those who also would be cut from the bench.
The measure would roll back judges’ salaries 15 percent, reduce the appeals court by seven judges -- six of them Republicans -- and kick two GOP justices off the Michigan Supreme Court, among other things. Democrats and unions behind the proposal support it in part as a way to redraw legislative districts to favor Democrats after the 2010 census by lessening the influence of Republican-controlled courts that review redistricting plans.
One of judges on the panel, Whitbeck, would lose his job under the measure.
He ruled that his economic interest in the case is “minimal” because he said losing his $151,441 salary “would have almost no economic impact on me.” Whitbeck, 67 and nearing the end of his judicial career, said he could earn more in private practice.
“Here, I have looked into my conscience and have concluded that I am able to accord fair, impartial and equal treatment to all the litigants in the case,” Whitbeck wrote.
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The ABA Plots a Judicial Coup – [Editorial]
The Wall Street Journal
August 14, 2008
Some bad ideas never seem to die, especially in the hands of a crafty attorney. That's the story now playing out at the American Bar Association, which voted at its annual meeting this week to endorse a version of "merit selection" for federal judges. What we have here is the latest lawyer-led attempt to strip judicial selection from future Presidents.
According to the proposal, future federal judges would be selected not by an elected President, but with the aid of home-state Senators and a bipartisan commission that would provide a list of recommended nominees for judicial vacancies. The White House would then select a candidate from the pre-approved list. The commission would be created by the two Senators from each state to offer up consensus choices for federal nominees.
The point of all this, says the ABA's incoming President Thomas Wells, is to avoid "really rancorous debates" in the confirmation process and make sure vacancies aren't left to languish indefinitely. The bar association has also enlisted former Supreme Court Justice Sandra Day O'Connor to push for an expansion of merit selection at the state level as an alternative to judicial elections -- which the bar loathes because voters can be so darn unpredictable.
We admire Mr. Wells's high-mindedness. But surely he must have heard that merit selection merely takes the partisan politics out of the public eye and into backrooms stocked with political insiders. In states that have adopted the ostensibly nonpartisan system, it has given disproportionate influence to the state trial bars that control selection commissions and have steadily marched state courts to the left.
That may not be Mr. Wells's intention, but it's no accident that outfits like the George Soros-bankrolled Justice at Stake have lobbied for precisely this kind of "merit" selection. The group cheered the ABA proposal this week, and pledged its support. "Judges are not politicians in robes, nor are they prizes to be won by aggressive special interests," executive director Bert Brandenburg remarked. Unless, of course, the "special interest" is the lawyers' guild. Then it's all just one happy meritocracy.
And the chief arbiter of what qualifies as "merit" soon becomes the lawyers' club, especially the trial bar. The ABA resolution is explicit on the point that the commissions should be composed of "lawyers and other leaders." Lawyers might even deserve such pride of place if the judges they chose stuck to judging. But with so many modern judges bent on writing law by fiat, doctors, firemen and used car salesmen are just as qualified to opine on judicial philosophy. In fact, we'd prefer the used car salesmen.
All of which explains why states that use some version of merit selection are trying either to reform the system or ditch it altogether. This spring, Tennessee allowed its merit selection plan to expire after abuses that drew the ire of even Democratic Governor Phil Bredesen. In 2006, he said the nominating commission was "trying to force people down my throat."
In Missouri, Governor Matt Blunt last year considered rejecting a slate of nominees to protest a commission that had habitually done the trial bar's bidding. In Kansas, legislation to dump its version of the so-called Missouri Plan also got momentum in the last legislative session, and voters in Johnson County will consider whether to retain the Missouri Plan or move to direct elections in November.
Taking all this to the federal level has the same problems and then some. The ABA proposal would institutionalize the role of home-state Senators as Presidential equals in nominating federal judges. One source of judicial gridlock has been the Senate's habit of "blue-slipping," a practice by which a nominee's two home-state Senators must both bless a nomination for it to proceed. That gives Arlen Specter or Barbara Boxer individual veto power, which is well beyond what the Constitution intended for Senate advice and consent.
The ABA's own judicial review panel, which rates Presidential nominees, has already proven it can't be trusted. Loaded with liberals who hid behind the bar's professional sheen, four members of the panel gave Judge Robert Bork a rating of "not qualified," though he was as well qualified as any nominee in American history. A couple of panel members also tried to torpedo Clarence Thomas by saying he was "unqualified" while the rest went with a lukewarm "qualified." Those episodes caused Senate Republicans to downgrade the ABA panel's status as an official vetting body.
The recent trend toward nominees from "compromise" lists has already thwarted the confirmation of other excellent judges whose only faults are belonging to the Federalist Society or believing in original Constitutional principles. You can be certain that the next Antonin Scalia would be deemed too controversial, while David Souter would qualify as the ultimate "consensus" choice.
A better option is to keep the judicial nominating process democratically accountable and transparent. Those who don't like the judges a President appoints can take their preferences out at the ballot box.
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Ex-Alabama high court justice Maddox wins legal professionalism award - Supreme Court's Alito to host program
ERIC VELASCO, The Birmingham News
Retired Alabama Supreme Court Justice Hugh Maddox will receive a national award from the American Inns of Court for his efforts to increase professionalism in the legal field.
Maddox, 78, will receive the A. Sherman Christensen Award in an Oct. 11 ceremony hosted by U.S. Supreme Court Justice Samuel Alito Jr. at the Supreme Court building in Washington.
"I am quite honored and humbled," Maddox said.
The American Inns of Court is an organization of judges, lawyers and sometimes law professors and students designed to improve skills, professionalism and ethics, Maddox said.
The award, given since 1986, is for distinguished leadership among American Inns of Court members on the local, state or national level.
Maddox, who retired from the Alabama Supreme Court in 2001, started the state's first chapter in Montgomery, which now bears his name. He also encouraged formation of other chapters in Alabama, which now has eight.
Maddox now is leading an effort to establish Inn chapters at Alabama's three accredited law schools, including Cumberland School of Law at Samford University.
Prior recipients of the award include retired U.S. Supreme Court Chief Justice Warren Burger and Patrick Higginbotham, a McCalla native and senior judge on the 5th U.S. Circuit Court of Appeals.
Maddox was an Air Force officer in Europe and North Africa during the Korean War. He retired from the Air Force Reserve as a colonel.
A graduate of the University of Alabama with a journalism degree, Maddox wrote the legal book, "Alabama Rules of Criminal Procedure," which now is in its fourth edition.
He also is the author and illustrator of a children's book, "Billy Boll Weevil a Pest Becomes a Hero," a fanciful tale about why the city of Enterprise has a monument to the pest that devastated cotton crops in the early 1900s.
Maddox served as adviser to three governors, George Wallace, Lurleen Wallace and Albert Brewer. Brewer appointed him to the Supreme Court in 1969.
During his 31 years there, Maddox established a reputation for keen intellect and hard work. He wrote more than 1,700 majority opinions.
Maddox, who received the Alabama State Bar's Judicial Award of Merit in 1997, retired because he had reached the state-mandated age limit of 70.
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Area lawyer is ABA head - Minority recruiting will be a top priority
ROY L. WILLIAMS, The Birmingham News
August 12, 2008
Birmingham lawyer H. Thomas "Tommy" Wells Jr. feels the legal profession needs to be more diverse, and as head of the nation's largest voluntary legal group he hopes to make minority recruitment a top priority.
"We've made progress, but our legal profession is not as diverse as we need to be and doesn't properly reflect the society we serve," said Wells, installed Monday to a year-long stint as president of the American Bar Association.
Wells, a founding partner and shareholder of Maynard Cooper & Gale P.C., took the helm of an organization that calls itself the national voice of the legal profession during the group's annual meeting in New York City.
Wells becomes the third Birmingham lawyer to serve at the helm of the Chicago-based American Bar Association, which has 413,000 members. The others were Henry Upson Sims, who served 1929-1930, and N. Lee Cooper, a founding partner of Maynard Cooper, from 1996 to 1997.
"It's a great honor to join them as president and a good reflection of the legal community in Birmingham and Alabama," Wells said.
The American Bar Association works to help improve the administration of justice and promotes programs that assists lawyers and judges in their work. From 2002 to 2004, Wells served as chair of the ABA House of Delegates, the association's second-highest elected position.
Wells said he will focus on four core values during his presidential term - preserving judicial independence, enhancing legal diversity, ensuring access to justice "and promoting the rules of law."
"There is a growing, stubborn partisanship in many state judicial elections and in the nomination and confirmation process for federal judgeships," Wells said. "As lawyers, we must continue to trumpet the notion that political influence has no place in our courts. Our judges should be - and should be perceived to be - beholden not to any particular constituency but to one thing only: the rule of law."
To have a viable civil and criminal justice system, Wells said, it is crucial that everyone in the United States have equal access to fair representation, "especially the indigent."
As president, he wants to encourage and promote the hiring of more minority lawyers, who comprise just 10 percent of the legal profession.
Wells also plans to promote the importance of attorney ethics codes and disciplinary enforcement to help preserve the legal profession's independence.
"In the South, we say lawyers are `called' to the bar," he says. "This call to the bar unites us on our common core values, which enables us to make a difference as a profession."
Well earned his bachelor's and law degrees from the University of Alabama. In law school, he was a member of UA School of Law's Alabama Law Review and a Hugo Black Scholar.
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ALABAMA VOICES: Worthy of the office – [Op-ed]
The Montgomery Advertiser
August 10, 2008
Thanks to Judge Bill Gordon and his Judicial Campaign Oversight Committee, Alabama has a real chance for a supreme court election that will not be an embarrassment.
Both candidates for the open Supreme Court seat, Judge Deborah Bell Paseur and Judge Greg Shaw, have signed the Oversight Committee's pledge to conduct their campaigns in an ethically responsible manner. They are to be commended.
Other appellate judicial candidates have also signed the pledge. One hopes all the other candidates will demonstrate the courage and character of those candidates. Removal of the negative personal attacks from our judicial campaigns will allow Alabamians to cast their votes based on experience, integrity, professional competence, judicial temperament and service.
It will also permit candidates to campaign on their commitment to the law rather than attempt to influence public opinion through mudslinging.
Now that our candidates have pledged to run campaigns worthy of the offices they seek, we must find a way to stop wasting so much money on our judicial elections. In the last election cycle, $17 million were spent on Alabama's judicial campaigns. In the same year, $7 million were spent providing Alabama's poor access to our judicial system.
Much of the money spent on the judicial campaigns was spent on television advertising. Remember any of the TV spots from the 2006 campaign? Do you remember the negative ads that attacked candidates on a personal level, or do you remember the positive ads, ads that really told you who the candidates were and why they deserved your vote?
If you're like many Alabamians, you remember the content from the positive ads, and you remember that the negative ads left a bad taste in your mouth toward both candidates.
Judicial campaign managers, contributors, and consultants must ask themselves whether the negative ads make enough of a difference to be worth the risk. Judicial candidates must ask a much more important question of themselves: do these ads tell Alabama voters who I really am, or are they a second-rate way to try and win an election?
Going negative may be a sure ticket to a losing campaign, as evidenced by the 53 incumbent Texas judges who recently lost elections due to campaigns based on negative personal attacks. Alabama voters should ignore expensive campaign ads that seek to create nothing more than fear and hate.
We have better things to spend our money on in this state. Access to justice for our poor and adequate indigent defense funding are far more important than dirty campaigns. The state of Alabama provides far too little money for criminal defense for the poor. The state provides nothing for poor Alabamians who need a civil attorney.
Fewer than 20 percent of the civil legal needs of the poor in our state were met last year. Problems in our indigent defense system must also be addressed to help ensure that every Alabamian who is accused of a crime will receive quality representation.
An indigent defense bill will be introduced in our state Legislature this year that makes delivery of legal services much more efficient and directs more dollars to the local trial level. We simply cannot allow our judicial system to operate one way for people who can afford an attorney and another for people who cannot. By expanding access to the courts and providing adequate funding for our indigent defense system, we ensure that the "least of these" among us is served by our judicial system.
Our system of justice must not only appear to be just -- it must also be just in action. It is my hope that the candidates seeking to serve on the state's highest court will turn the tide on negative campaigning. The candidates involved in the election process must take the lead in ethical and honest campaigning. The rest of us should expect and accept no less.
I ask all to join me in my commitment to the law and to providing access to justice for all Alabamians. Having judicial candidates who pledge to adhere to the Canons of Judicial Ethics and who refuse to sling mud at each other is a good place to start.
J. Mark White of Birmingham is president of the 15,700-member Alabama State Bar, the official organization of lawyers in Alabama. White is a partner in the law firm of White Arnold & Dowd, P.C.
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Judges' pay not the issue – [Editorial]
The Mobile Press-Register
August 08, 2008
ANATIONAL survey of judicial pay leaves little doubt that judging in Alabama is good work, if you can get it.
The National Center for State Courts ranked Alabama near the top in compensation for appeals court judges. With an average salary of $175,000 per year, Alabama's Supreme Court justices are better paid than their judicial peers in 44 states. Judges in Alabama's lower appellate courts rank even higher on the pay scale, coming in third in the survey.
These salaries may make a lot of low-and middle-income Alabamians green with envy. But an advocate for the poor put the judicial pay issue in perspective.
Ron Gilbert, an official with Alabama Arise, told the Press-Register: "We expect ... our judiciary to make really serious decisions. They should be compensated appropriately."
There's no guarantee that high pay will translate into exceptional judicial performance. However, the top attorneys in private practice are richly rewarded, so it stands to reason that relatively low pay could keep the best lawyers from pursuing careers on the bench.
To paraphrase Barry Goldwa ter, mediocrity in the administration of justice is no virtue.
Judges should be well-paid for their important work, but they should also be held to high standards.
Alabama falls short on judicial standards. Judges must be at least 18 years old, have a law degree and live in the state. That's it: Courtroom experience is not a prerequisite.
The Legislature needs to finally pass a bill that raises the bar for judicial service. Given that state residents are paying for the best, they should be able to count on having judges with solid qualifications, including significant experience as a practicing attorney.
One other change is needed to improve the quality of the appellate courts: a switch to a Missouri-style system of judicial appointment and voter retention.
Choosing judges in nasty, lavishly financed partisan elections demeans the courts and discourages well-qualified people from pursuing a position on the appellate bench.
If the state adopted the merit selection process included in the Missouri Plan, it's unlikely that judicial pay would outpace judicial quality.
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Alabama judges rank high in pay
Posted by GEORGE R. ALTMAN, Mobile Press-Register
August 04, 2008
MONTGOMERY - In a state where the average resident earns one of the lowest paychecks in America, Alabama appeals court judges are among the most highly paid in the U.S.
While some legal experts expressed concerns about the pay gap, judges and non-judges alike said that if judicial salaries fall too low, the quality of Alabama justice could suffer. The best candidates for the bench, they said, could opt to earn more in private practice.
"If you cut the pay to $125,000 a year, you'll find very few people willing to do what you have to do to get elected and stay on this court," said state Supreme Court Justice Thomas Woodall, who earns $169,591. "You might end up lowering the bar, so to speak."
Alabama's Supreme Court justices are the seventh most highly paid in the nation; judges in the state's lower appellate courts ranked third; and trial court judges ranked 22nd, according to a study by the National Center for State Courts.
Those rankings climb if the relatively low cost of living in Alabama is factored in. Cost-adjusted, Alabama Supreme Court salaries are the nation's second highest, the state's lower appellate courts lead the nation and its trial courts rank eighth, the study shows.
Study officials cautioned that cost adjustments for the Supreme Court and lower appellate courts could be less accurate than at the trial court level. That's because the higher courts are typically located in cities, which are generally more expensive.
Alabama judges earn the following annual salaries on average:
Supreme Court chief justice: $196,183, about $48,000 more than the national average
Supreme Court associate justices: $169,310, about $27,700 more than the national average
Lower appellate courts: $174,315, about $33,000 more than the national average
Trial courts: $130,379, about $150 less than the national average
Alabama workers earned an average wage of $34,950 last year, ranking 40th among the 50 states and the District of Columbia, according to the U.S. Bureau of Labor Statistics.
'Balancing act'
The "tremendous difference" in earnings between Alabama judges and the citizens they serve is a concern, said Ron Gilbert, a senior policy analyst with Alabama Arise. But Gilbert, whose Montgomery-based organization lobbies for Alabama's poor, said judges earn their pay.
"We expect for our judiciary to make really serious decisions," Gilbert said. "They should be compensated appropriately."
Mobile Circuit Judge John Lockett, one of the state's most highly paid circuit judges, said the pay concerns were valid.
"But it's all... a delicate balancing act. You get what you pay for," said Lockett, who earns $153,946.
Lockett and other members of Alabama's legal community said that judicial salaries are driven up by the vast sums that private practice lawyers can make. In Alabama, the average salary for lawyers is $108,780, according to federal statistics. Top corporate lawyers can earn three times that amount or more.
"If it comes about that a good, smart, young lawyer, (about 10 years) out of law school is making a couple times what he could make as a judge, you're not going to attract that lawyer to run as a judge," said Griffin Sikes, legal director for the Alabama Administrative Office of Courts.
But at least one jurist said pay had little bearing on his decision to become a judge.
"The people that would come in for lower pay, are they lesser quality? You can't say that," said state Supreme Court Associate Justice Michael Bolin. "You do it for a lot of reasons, and I doubt that pay would be in the top ten reasons for anybody on the bench."
Alabama's top lawyer, Attorney General Troy King, earns $163,744, making him the second-highest-paid attorney general in America. King's salary is tied by law to the Alabama Supreme Court associate justices' salaries.
Nationwide problem
Court systems throughout the country have trouble competing with the salaries offered to private practice lawyers, many judges said.
When asked why Alabama needed to pay its judges more than other states, Sikes pointed to Alabama's rigorous judicial campaigns.
In 2006, Chief Justice Sue Bell Cobb won her seat on the Alabama Supreme Court in one of the most expensive judicial races in American history. Cobb and her opponent raised in excess of $6.4 million combined.
"A lot of that money, judges put in themselves," Sikes said.
Supreme Court Associate Justice Harold See Jr. said he didn't think campaign costs factored into judicial salaries.
"There's no way that we're going to pay a salary that allows judges to run campaigns out of their own pockets," See said with a laugh.
Still, he said, Alabama should not be ashamed ? but proud ? of the high pay it gives judges. The state should look for other public officials deserving of raises, such as teachers or police officers, according to See.
"It ought not be a race to the bottom. It ought to be a race to the top," See said.
Supreme Court pay
U.S. Chief Justice John Roberts: $217,400
U.S. associate justices: $208,100
Alabama Chief Justice Sue Bell Cobb: $196,183
*Patricia Smith: $194,933
*Lyn Stuart $183,237
*Thomas Woodall: $169,591
*Harold See Jr.: $167,642
*Champ Lyons Jr.: $165,393
*Glenn Murdock: $161,794
*Michael Bolin: $155,946
*Tom Parker: $155,946
*Associate justice on Alabama Supreme Court.
Source: U.S. Supreme Court, Alabama Supreme Court
Average salaries of judges in Alabama with those of judges in the five nearest states.
1. Alabama: $175,440
2. Georgia: $167,210
3. Florida: $161,200
4. Tennessee: $154,800
5. Louisiana: $131,069
6. Mississippi: $112,530
Lower appellate court salaries
1. Alabama: $174,315
2. Georgia: $166,186
3. Florida: $153,140
4. Tennessee: $149,640
5. Louisiana: $124,469
6. Mississippi: $105,050
Trial court salaries
1. Florida: $145,080
2. Tennessee: $144,480
3. Alabama: $130,379
4. Georgia: $120,252
5. Louisiana: $118,289
6. Mississippi: $104,170
Source: National Center for State Courts
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Case highlights broader concern – [Editorial]
The Montgomery Advertiser
August 4, 2008
A lot of heated rhetoric has bounced back and forth in the case of Thomas Arthur, the Alabama inmate sentenced to die for a murder committed more than 26 years ago. However, as much as the legal wrangling may rankle many Alabamians, there are lessons to be taken from it all that could have long-term benefits for the state's justice system.
In Arthur's case, he was nearing a third execution date when the Alabama Supreme Court issued a stay. Before anyone leaps to the conclusion that this was some left-wing, criminal-coddling decision, please note that two of the court's most conservative -- and most scholarly -- justices, Champ Lyons and Glenn Murdock, voted with the court majority.
That decision drew a curious response from Attorney General Troy King, whose support for capital punishment sometimes appears to go beyond the reasonable and into the realm of zealotry. He called it a serious setback for the prosecution.
But why? If the state's case is sound and if new issues, including a claim by another inmate to have committed the crime, prove to be without merit, there is little reason to believe the state will not prevail.
Surely there can be no more solemn responsibility for the justice system than a capital punishment case. That is, after all, the ultimate punishment, the one beyond any possible correction of error. The state is empowered under the law to take a life, but it should never do so without the utmost care and the highest attainable degree of certainty.
The stay was issued "pending further orders of this Court." Such orders could come as soon as today, when the court holds its next conference.
The decision drew a decidedly different response from Mark White, the president of the Alabama State Bar. "Whenever a judge decides to afford a person the right to be heard, it means our system is working," he told The Associated Press. "Any time a judge acts in a situation with the level of intensity present here, we need to stop and commend that courage."
The State Bar supports a statewide indigent defense commission that could "better direct resources at the trial stage to ensure quality representation," White said. That would be an enormous benefit to the justice system.
Better representation at trial is not simply a plus for the defendant. It's ultimately better for the system as a whole, for it reduces the likelihood of successful appeals of convictions on grounds not related to the facts of the cases. It forces the state to do a better job of prosecuting, to exercise that power responsibly, to not only shoulder the burden of proof but also to offer that proof clearly and convincingly in the face of a capable defense.
Regardless of the eventual outcome of the Arthur case, this is a step Alabama needs to take.
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Study Finds Settling Is Better Than Going to Trial
By JONATHAN D. GLATER, The New York Times
August 8, 2008
Note to victims of accidents, medical malpractice, broken contracts and the like: When you sue, make a deal.
That is the clear lesson of a soon-to-be-released study of civil lawsuits that has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer.
“The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more,” said Randall L. Kiser, a co-author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions.
Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.
The vast majority of cases do settle — from 80 to 92 percent by some estimates, Mr. Kiser said — and there is no way to know whether either side in those cases could have done better at trial. But the findings, based on a study of 2,054 cases that went to trial from 2002 to 2005, raise provocative questions about how lawyers and clients make decisions, the quality of legal advice and lawyers’ motives.
Critics of the profession have long argued that lawyers have an incentive to try to collect fees that are contingent on winning in court or simply to bill for all the hours required to prepare and go to trial.
“What I would want them to look at was whether or not the lawyers had a strong financial incentive to go to trial,” said Cristina C. Arguedas, a criminal defense lawyer in Berkeley, Calif., when told of the study. “I’m not suggesting the answer, because I don’t know, but that would be my question.”
The study, which is to be published in the September issue of the Journal of Empirical Legal Studies, does not directly answer Ms. Arguedas, but it does find that the mistakes were made more often in cases in which lawyers are typically paid a share of whatever is won at trial.
On average, getting it wrong cost plaintiffs at about $43,000; the total could be more because information on legal costs was not available in every case. For defendants, who were less often wrong about going to trial, the cost was much greater: $1.1 million.
“Most of the time, one of the parties has made some kind of miscalculation or mistake,” said Jeffrey J. Rachlinski, a law professor at Cornell who has studied how lawyers and clients decide to go to trial and who is co-editor of the journal. “The interesting thing about it is the errors the defendants make are much more costly.”
The study’s authors have analyzed some data from New York and, after a review of 554 state court trials in 2005, have found parties to lawsuits making the wrong decision at comparable rates.
The findings suggest that lawyers may not be explaining the odds to their clients — or that clients are not listening to their lawyers.
“It’s entirely possible that the attorneys are not giving adequate advice,” said Mr. Kiser, who is also a lawyer but is not practicing. “An attorney could advise a client that they have a strong defense to enforcement of a contract, but that is not the same thing as forecasting what the likely outcome at trial would be.”
As part of the study, which is the biggest of its kind to date, the authors surveyed trial outcomes over 40 years until 2004. They found that over time, poor decisions to go to trial have actually become more frequent.
“It’s peculiar if any field is not improving its performance over a 40-year period,” Mr. Kiser said. “That’s a troubling finding.”
Law schools do not teach how to handicap trials, nor do they help develop the important skill of telling a client that a case is not a winner. Clients do not like to hear such news.
“Most clients think they are completely right,” Michael Shepard, a lawyer at Heller Ehrman in San Francisco. A good lawyer has to be able to tell clients that a judge or jury might see them differently, he continued. “Part of it is judgment and part of it is diplomacy.”
Several lawyers were dismissive of the study, noting that the statistics mean nothing when contemplating a particular case, with its specific facts and legal issues, before a specific judge. They stressed the importance of a lawyer’s experience.
But the study tried to account for that possibility and found that factors like the years of experience, rank of a lawyer’s law school and the size of a law firm were less helpful in predicting the decision to go to trial. More significant was the type of case.
For example, poor decisions by plaintiffs to go to trial “are associated with cases in which contingency fee arrangements are common,” according to the report. “On the defense side, high error rates are noted in cases where insurance coverage is generally unavailable.”
The findings are consistent with research on human behavior and responses to risk, said Martin A. Asher, an economist at the University of Pennsylvania and a co-author. For example, psychologists have found that people are more averse to taking a risk when they are expecting to gain something, and more willing to take a risk when they have something to lose.
“If you approach a class of students and say, I’ll either write you a check for $200, or we can flip a coin and I will pay you nothing or $500,” most students will take the $200 rather than risk getting nothing, Mr. Asher said.
But reverse the situation, so that students have to write the check, and they will choose to flip the coin, risking a bigger loss because they hope to pay nothing at all, he continued. “They’ll take the gamble.”
The third co-author of the study was Blakeley B. McShane, a graduate student at the Wharton School of the University of Pennsylvania.
