Off the charts in judicial races – [Editorial]
The Birmingham News
Wednesday, May 23, 2007
THE ISSUE: A new report again shows how expensive and harmful Alabama's judicial elections have become. Meanwhile, the solution languishes in the Legislature.
Alabama is no longer a tort hell, but it remains another form of judicial hell. A new report again shows Alabama is leading the way in costly, embarrassing and destructive political campaigns for judges.
While money was an increasing factor in judicial races across the country, Alabama's Supreme Court candidates raised $13.4 million, setting a state record and putting all other states to shame.
Except in reality, the shame was all ours. Our judicial campaigns are not something to be admired. In fact, they have become a cautionary tale, a sort of shock therapy used to rein in lesser excesses in other states.
"We always tell them you don't want to be the next Alabama," said Jesse Rutledge, spokesman for Justice at Stake Campaign, which produced the report along with the National Institute on Money in State Politics and the Brennan Center for Justice at the New York University School of Law.
The amount raised for Alabama's Supreme Court races was the highest in the country last year by far - almost four times the amount in No. 2 Texas. Indeed, Alabama's was the second highest in U.S. history.
If the dollars were obscene, so were many of the products they purchased.
Alabama voters were subjected to 17,830 TV ads - more than half the total aired across the country.
These were hardly filled with messages that inspired confidence in our courts.
In the Republican primary race for chief justice, Supreme Court Justice Tom Parker portrayed Chief Justice Drayton Nabers as a slave to foreign laws and the United Nations. Nabers called Parker a goldbricker. In the Democratic primary, Nabers called Democratic nominee, Sue Bell Cobb, a tool of the trial lawyers and gambling interests. Cobb called Nabers a hack for the oil and insurance companies.
That's just a short recap. In real time, the battle was withering and embarrassing, even to good candidates.
The damage didn't end on Election Day. It continues even now, rightly or wrongly, to affect public confidence in the court system and to taint judicial rulings.
In just one example, the Birmingham Race Course is arguing to the U.S. Supreme Court that judges who campaigned against gambling should not have taken part in a ruling against the dog track's sweepstakes operation. "A justice on any court should not be allowed to participate in a case where that judge has publicly announced his or her bias or prejudice against a party or an issue," lawyers for the dog track said in a statement.
However that case goes, it's clear the costly, caustic elections for which Alabama has become notorious have not served the interests of justice.
Cobb and the Alabama State Bar are backing measures that would help, by at least moving the state toward nonpartisan judicial elections. The best proposal, though, would end contested judicial elections altogether, replacing our current system with one in which judges are appointed to the job and required later to stand alone in retention elections.
Unfortunately, all of the proposals that could keep Alabama from being the poster child for ugly judicial races are languishing in yet another hell: the Legislature.
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Alabama Supreme Court races more costly than any other state's
By PHILLIP RAWLS, The Associated Press
May 17, 2007
MONTGOMERY , Ala. (AP) — Alabama had the nation's most expensive state Supreme Court races in 2006 and its residents were bombarded by more TV ads from court candidates than viewers in any other state, according to a national report released Thursday.
In Alabama, one of only seven states that pick judges in partisan elections, 15 candidates for state Supreme Court seats reported raising $13.4 million. Texas, about five times more populous than Alabama, came in a distant second at $3.5 million. Alabama's 2006 figure broke the statse's old record of $12.3 million set in 2000.
To put the fundraising into perspective, the state appropriation to operate the Supreme Court this year is $8.5 million — about two-thirds of what was raised to win seats on the court.
"Those are barn-burner numbers," said Jesse Rutledge, spokesman for the Justice at Stake Campaign. The group prepared the national report on campaign fundraising with the Brennan Center for Justice at the New York University School of Law and the National Institute for Money in State Politics.
Rutledge said part of the reason Alabama set the record was that five of the nine seats on the Supreme Court were up for election in 2006 and spending in all races was up. But the primary cause was the high-budget race for chief justice that generated about two-thirds of the money, he said.
In a review of TV advertising purchases, the Justice at Stake Campaign figured there were 17,830 ads for or against candidates in Alabama, which was the most of any state in a single year. The number about equaled the total number of Supreme Court TV ads run in Alabama in the 2000, 2002 and 2004 elections combined.
The Justice at Stake Campaign is a nonpartisan organization supported by a variety of citizen, business and legal groups representing both plaintiff and defense lawyers. The Washington-based group has tracked spending in state Supreme Court races nationwide since 1993 and has criticized the growing political intensity of judicial races, where businesses and lawyers make large donations to winning candidates and then have cases before them.
The Justice at Stake Campaign had reported earlier this year that Alabama's race for chief justice was the second most expensive in American history, with the three candidates raising $8.2 million. Illinois still holds the record with a 2004 race where the candidates generated $9.3 million.
The new report adds in $5.2 million raised by the candidates for four other Supreme Court seats, raising the total to $13.4 million. The total includes contributions and loans to the candidates' campaigns as well as in-kind contributions, such as polling and other services paid for by others.
Since 1993, Supreme Court candidates in Alabama have raised $54 million largely because of repeated battles between business groups and plaintiff lawyers for influence on the court. Texas is second at $30 million because of some of same battle lines, according to Justice at Stake.
"Justice at Stake's report shows how in too many states, judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and Constitution," former U.S. Supreme Court Justice Sandra Day O'Connor said in a statement released with the report.
Most states don't hold contested Supreme Court races. Eleven states, including Alabama, had either partisan or non-partisan contested races in 2006. Alabama's race for chief justice, between Republicans Drayton Nabers and Tom Parker in the GOP primary and then Nabers and Democrat Sue Bell Cobb, who won the November election, was singled out in Thursday's report as an example of candidates using their ads to attack their opponents — once a rarity in judicial races.
" Alabama has become a national case study in the new politics of judicial elections," said Bert Brandenburg, executive director of Justice at Stake Campaign. "Around the country, other states are pursuing reforms to keep campaign cash out of the courtroom. If Alabama were to pass meaningful reforms, the rest of the country would take notice."
Cobb, the new chief justice and the only Democrat on the Supreme Court, has advocated nonpartisan elections to try to reduce spending. The Alabama State Bar also has called for appointments of judges, with voters deciding whether to retain them at the end of their six-year terms. Neither idea has found favor in the soon-to-be-completed session of the Legislature.
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Judicial races get judged - State must revamp costly, feisty election process, watchdog says
ERIC VELASCO, The Birmingham News
May 19, 2007
Alabama needs to reform how it picks top judges after a campaign season in which Supreme Court candidates set state and national records in fundraising and television ads, a report by national judicial watchdog group said.
Alabama is the trendsetter nationally for increasingly expensive and nasty court races that threaten public confidence in the judiciary, according to the report, "The New Politics of Judicial Elections 2006."
The 2006 "New Politics," the fourth to track fundraising and spending in judicial races nationally, is a joint effort by Justice at Stake, the Brennan Center for Justice at New York University and the Montana-based National Institute on Money in State Politics.
" Alabama has become a national case study," Bert Brandenberg, executive director of Washington-based Justice at Stake, said in a statement. "Around the country, other states are pursuing reforms to keep campaign cash out of the courtroom. If Alabama were to pass meaningful reforms, the rest of the country would take notice."
Bills to change how Alabama's judges are chosen - pushed by Chief Justice Sue Bell Cobb and the Alabama State Bar - have stalled in the Legislature.
Alabama 's $8.4 million chief justice campaign was the most expensive nationally in 2006and the second-most expensive in United States history, according to the "New Politics" report. Three of the four most expensive judicial races in U.S. history were in Alabama, the report said.
" Alabama is the high water mark in every election cycle," said Rachel Weiss, communications director for the National Institute on Money in State Politics. "When there is an expensive race, we always go back and compare it to Alabama."
Among the findings in the report on the 2006 elections:
The $13.4 million combined raised by all Alabama Supreme Court candidates was nearly four times the amount raised in Texas, the state that came in second.
More than half of the television ads in Supreme Court races nationally aired in Alabama. Spending on airtime in Alabama doubled the cost in the No. 2 state, Georgia.
The average fundraising per Supreme Court candidate in Alabama was 3.5 times the national average of $251,300.
Since 1999, Alabama Supreme Court candidates have raised nearly 25 percent of the national total for the 42 states with judicial races.
Alabama is the only state where aggregate Supreme Court fundraising has topped the $10 million mark. It's happened twice here, in 2000 and 2006.
"The numbers are so bad and so completely out of step with the rest of the country," said Jesse Rutledge, spokesman for Justice at Stake. "When we talk to groups across the country, we always tell them you don't want to be the next Alabama."
No-holds barred:
Alabama is one of the first states where judicial candidates adopted the no-holds-barred style of campaigning normally seen in legislative, gubernatorial and presidential races.
Alabama was one of the first states where court candidates used television to push their messages. In 2006, 91 percent of the states with judicial races had court-race ads, the "New Politics" report said.
Last year, Alabama led a new trend toward ads during judicial primary races. More than 70 percent of the ads aired nationally during court primaries were in Alabama races, the report said.
The number of ads also exploded during the 2006 campaign season. The 17,830 ads exceeded the state's ad count in 2000, 2002 and 2004 combined, the report said.
Candidates' reliance on ads has made Alabama the most expensive state in the nation to run for Supreme Court. Since 1993, state high court candidates have raised a combined $54 million, almost twice the amount raised by candidates in the next most-expensive state, Texas.
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Campaign madness - The way we pick judges is too costly; let's change it – [Edtiorial]
Huntsville Times
May 21, 2007
Congratulations, Alabama! We've made the record books again. And, yes, once again the distinction is dubious. Make that embarrassing.
According to a private research group, Alabama Supreme Court candidates spent a total of four times as much trying to get elected as those in any of the seven other states where high court elections were held last fall. One of those other states was Texas, a state with a lot more money and lot more people than this one.
The Associated Press compared the exorbitant cost another way: It takes about $8.5 million a year to operate the state Supreme Court. The candidates spent a total of $13.4 million trying to get elected.
Most of that money went to television advertising in which candidates told us they played the piano in church, cherished their families and basically loved everything good and hated everything bad. And, by golly, they were conservative! As far as political discourse goes, it was somewhere above the profundities of "Li'l Abner" but below that of "Peanuts."
Can anyone, in fact, remember a single commercial for Drayton Nabers in which he even said anything on screen? No, we can't, either.
But it wasn't just Nabers, it was everybody offering up lots of down-home sizzle and no steak. Mostly, it was candidates trying to hide whether they were financially beholden to business groups or to litigation specialists, depending on whom they thought were the bugbears of the moment.
If you were to construct a system that virtually assured that having money to campaign would trump legal knowledge or judicial acumen, you'd probably use this one as your example.
Even Chief Justice Sue Bell Cobb, who ousted the appointed Nabers from the post, finds the system broken. She wants to fix it with nonpartisan elections, and a system that will remove some judges from the campaign process some of the time.
The problem, of course, is not partisanship but vested interests. And both trial lawyers and business councils have so much at stake their pockets go very deep when it comes to trying to get people on the bench those groups think will favor them.
A system that allows a blue-ribbon group that has public confidence to select judges, then perhaps makes those judges face the public for a vote of approval or rejection after a period of service, seems to make more sense.
It certainly would cost less. It would cut down on those insipid, annoying TV ads. And it would almost assuredly get the state better-qualified people in robes on the bench.
But if we persist in this expensive, inane election system, there's another record we can chase. This last race for chief justice saw the candidates spend some $8.2 million. That's a million and change from the record $9.3 million that was spent in Illinois on a similar race in 2004.
Do we want to shoot for that? Or do we want to devise a plan to end this exorbitant madness?
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Report: Spending on Judicial Elections Soaring
By Nina Totenberg, National Public Radio
May 18, 2007
Morning Edition, May 18, 2007 · A new report shows a dramatic increase in special interest money being spent on judicial elections.
The report, compiled by the nonpartisan group Justice at Stake, shows that business interests spend twice as much money on state high-court elections as all other groups combined, including lawyers.
At the same time, a poll of business leaders shows many feel uneasy about the trend.
Documenting the increasing influence of money in judicial elections, the report shows fundraising by state supreme court candidates rose in 2006, with the median being close to $250,000 per candidate. The high-water mark came in Alabama, where the total price tag for the race for chief justice was $8.2 million.
TV ads ran in 10 or the 11 states where state supreme court judges were up for election, compared to just four states out of 18 six years earlier. Average television spending hit a new record at $1.6 million per state. And business interests outspent everyone else combined — by a 2-to-1 margin.
"What we are seeing now is the beginning of a very serious arms race," said Charles Kolb, president of the Committee for Economic Development, a business group that is part of Justice at Stake.
Kolb contends that the arms race could end up with the mutually assured destruction of our judicial system.
His group sponsored a Zogby poll of business leaders that shows concern running so high that 70 percent of those polled favored alternatives to judicial elections.
The big players from the business community in judicial elections, however, are the Chamber of Commerce and the National Association of Manufacturers. They began focusing on state judicial elections because they thought they were being outgunned by the plaintiffs' bar — lawyers seeking big damage awards for clients who claimed injury.
It used to be that they were, but not any more. Business groups contributed twice as much to supreme court candidates as lawyers and unions combined in 2006. And 85 percent of non-candidate TV advertising was sponsored by business groups.
Take Georgia, for instance. The lone race for the state supreme court there cost $38,000 in 2000. But in 2006 the National Association of Manufacturers targeted Justice Carol Hunstein, through its affiliate group, the American Justice Partnership, with $1.3 million in contributions.
"Justice Hunstein was very, very unpredictable," said Dan Pero, president of the American Justice Partnership, offering an explanation for why the group targeted her. There was concern, he said, that Hunstein was a judge the partnership "could rely on" to correctly interpret the law.
But tort reform was not prominently featured in the anti-Hunstein TV ads, many of which attempted to make her look soft on crime.
Pero said the ads were focused on issues to which the general public could relate.
Ironically, Hunstein's record was considerably more conservative than her other colleagues up for re-election. A statistical analysis of Georgia supreme court criminal case rulings done by the Fulton County Daily Report concluded that in cases decided by a divided vote, Hunstein sided with the prosecution 39 percent more often than did the court as a whole.
Despite the fact that business groups poured money into the campaign to defeat her, Hunstein raised over $1 million herself and won.
Some of her supporters say the ad campaign was meant to send a message to others on the court that they too could face a business-financed challenge.
Former Michigan Gov. John Engler, head of the National Association of Manufacturers, conceded as much.
But the trend bothers Ohio Chief Justice Thomas J. Moyer, a Republican, who is the nation's longest serving current chief justice.
"Human nature is that we help people if they help us," Moyer said. "And that's the problem with this system."
Judges like to say that money doesn't matter when they are making decisions, but trying to ignore big money in judicial elections, observed one noted judge, is like trying to ignore the crocodile in your bathtub.
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Falwell saw law school as tool to alter society
By Lisa Anderson, Chicago Tribune
May 21, 2007
LYNCHBURG, Va. — Some may have found it curious when Rev. Jerry Falwell's new Liberty University School of Law recently unveiled a $1 million teaching courtroom featuring exact-to-the-inch replicas of the U.S. Supreme Court bench and the lectern and counsel tables facing it. But Liberty faculty and students understood perfectly: Falwell intended his students to be well prepared to argue before and, ultimately, to serve on the highest court in the land.
Falwell, the prominent televangelist and father of the Moral Majority who founded Liberty University in 1971, died less than a week before the school granted its first law degrees to 50 graduates on Saturday. But his dream of "training a new generation of lawyers, judges, educators, policymakers and world leaders in law from the perspective of an explicitly Christian worldview" remains very much alive.
And that's true not just at Liberty, with its evangelical Baptist heritage, but at a growing number of conservative Christian law schools, such as the Ave Maria School of Law in Ann Arbor, Mich., which graduated its first class in 2003; the University of St. Thomas in Minneapolis, which graduated its first class in 2004; and Barry University School of Law in Orlando, founded in 1999—all Catholic schools. Televangelist Pat Robertson's 21-year-old evangelical Regent University School of Law in Virginia Beach, Va., was one of the first of this new wave of schools, while Liberty is the youngest. All of them are either fully or provisionally accredited by the American Bar Association.
"It's a really good and healthy development in legal education," said John Garvey, dean of the Boston College Law School, a Jesuit school, and president-elect of the Association of American Law Schools.
"Since the election of Ronald Reagan, people have been talking about the influence of evangelicals or orthodox Catholics on election results," he said. "Should there be any surprise that there should be a demand for educating young people in this way? The very people who are voting this way and urging legal reforms of this kind are people whose children are going to college and law school."
Out to change the world
Bright and enthusiastic ranks of conservative Christians of all denominations are enrolling in these new law schools. Their unabashed goal: to "confront the culture," as Falwell put it, and "change the world," as Regent's motto proclaims.
Matthew Krause, among Liberty's first law graduates, is one of them.
"I think we've complained too long about the destruction of our culture without taking any affirmative steps to remedy it," said the lanky, 26-year-old Texan. "We don't want abortion, but what are we doing about it? Let's get into the courts and find a way to combat that. Same-sex marriage we don't feel is right or a good thing for the culture. How are we going to stop that? You have to do that through the legal processes. Then, at the same time, vote in politicians who share those ideas and beliefs."
In a dark brown suit, blue-striped shirt and blue and brown striped tie, Krause already dresses like an attorney. But he also has the big smile, firm handshake and outgoing personality of the kind of politician he ultimately hopes to be.
"I've got this crazy goal to be the governor by 2022," he said, with the confidence of one who doesn't consider the idea the least bit crazy.
But first, Krause will return to Texas with his wife, Jennie, and newborn son, Jeremiah, to open a Dallas office for Liberty Counsel, a plum job for a Liberty law graduate.
Partnering with Liberty University, Liberty Counsel is a non-profit organization offering free legal assistance in the areas of "religious liberty, the sanctity of human life and the traditional family." The organization was founded in Florida in 1989 by Mathew Staver, who became dean of the university's law school last year. Top Liberty law students have the opportunity to work on pro bono cases, many of them dealing with constitutional issues.
The number of cases involving religious rights or the traditional family are on the rise, a trend consonant with the increased participation of Christian lawyers in the last decade, Staver said. And, he said, he discovered that "when we showed up, we could win."
In one of the last interviews given before his death last Tuesday, Falwell spoke to the Tribune on May 1 at Liberty University. He described his longtime desire to open an evangelical law school to counter "a colossal effort to secularize America" in the last 40 years.
"The 10 Commandments cannot be posted in public places. Children cannot say grace over their meals in public schools. No prayers at football games and on the list goes, virtually driving God from the public square. And then, of course, Roe vs. Wade in the middle of all that, legalizing abortion on demand. Now, the redefining of the family or the attempt to. So all of this reinforced our belief that we needed to produce a generation of Christian attorneys who could, in fact, infiltrate the legal profession with a strong commitment to the Judeo-Christian ethic," Falwell said.
That is what draws many students to Liberty University.
"Most students here are anchored in their Christian beliefs," said first-year law student Tashell Thompson, 21, a graduate of Johns Hopkins University.
"I was at a point in my life when I needed more of a conviction," she said. "When I was at Hopkins, I didn't necessarily put God first."
"I didn't want to just be a Christian attorney, but an attorney who dedicates my gifts and talents to Christ," said Chicago-born Daniel White, 25, an African-American. One of Liberty's first graduates, he is joining the Gibbs Law Firm in Florida, which argued for continued life support for Terri Schiavo.
Preparing its students
Liberty, like Ave Maria, which was started by Domino's Pizza founder Thomas Monaghan, provides generous financial aid to its law students. It is a way to attract those who otherwise might consider it a "risk to come to an untried institution," said Abigail Tuomala, Liberty Law's director of admissions.
Minority students make up about 15 percent of the school, which also has a small percentage of non-Christians, she said. Tuition at the law school is $24,160 a year.
Liberty integrates the moral and religious roots of the rule of law into every class discussion, an approach Staver calls "law plus." That came through during a recent "Lawyering Skills" class when professor Rodney Chrisman presented a case and then asked his students whether they would compromise their integrity on behalf of a good client. "The Bible says a good name is a greater treasure than silver and gold." Chrisman told them.
Lawyering Skills teaches students practical aspects of law, such as interviewing clients and drawing up contracts, from the day they arrive. Installed in a refurbished Ericsson cell-phone plant, the law school is very high-tech, from universal Wi-Fi to power jacks at every seat and a video camera in every classroom.
Liberty prepares its students to handle the lingering stigma that faith and intellect are contradictory, said Rena Lindevaldsen, assistant professor of law.
Placement for Liberty's first graduates has gone well, said Jory Fisher, associate dean for the Center for Career and Professional Development. Just before graduation, 52 percent of students had accepted offers in the legal field, she said; 12 percent more had received offers but had not yet accepted them.
As for Regent, it recently made the news in the uproar over the firings of U.S. attorneys because Monica Goodling, a former aide to Atty. Gen. Alberto Gonzales, was among about 150 Regent law graduates hired by the Bush administration.
Fisher said four Liberty graduates will clerk for judges, one at the appellate level. Such jobs pave the way to a clerkship with the U.S. Supreme Court and beyond, said Staver, a fact of which Falwell was well aware.
"We'd be pleased if we trained up a John Roberts and a Samuel Alito and Clarence Thomas and an Antonin Scalia," Falwell told the Tribune, with a wide smile. "We'd feel like we hit a home run."
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States Weigh Financing Judges' Elections
By ROBERT TANNER, The Associated Press
May 17, 2007
Records for campaign spending fell, attack ads blared on until Election Day, and special interest groups demanded candidates state their views on a whole range of contentious issues.
Sounds like politics as usual, doesn't it? Except these elections weren't for president, Congress or governor -- they were to fill the bench of top state courts. A new report says that a rising swell of money, outside groups and negative campaigns is adding pressure to the yearslong debate about the best way to elect judges.
A handful of states are weighing whether to publicly finance judicial elections, arguing that judges should be removed from the influence of money. New Mexico last month became the second state to approve public financing for such campaigns, after North Carolina changed to public financing in 2004.
Wisconsin chose a new Supreme Court justice last month in an acrimonious campaign that cost an estimated $6 million, nearly four times the 1999 record. The election was seen as a contest to decide the ideological balance on the court, with one candidate considered a liberal and the other a conservative. The conservative, Judge Annette Ziegler, won.
In Washington state last year, business groups lined up against a coalition of trial lawyers, unions and Indian tribal leaders in election struggles over three Supreme Court seats. Money from outside groups brought in $2.7 million.
Former U.S. Supreme Court Justice Sandra Day urged states to rethink partisan election of judges. "In too many states, judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the constitution," she told the group Justice at Stake Campaign, a Washington-based coalition seeking changes to protect judges' independence.
The new report, being released by Justice at Stake on Thursday, tracked the changes in recent years and found:
_ Television ads soared, with campaign commercials in 10 of the 11 states with contested supreme court seats last year. In 2000, only four states had ads out of 18 states with contested supreme court races.
_ Spending on TV ads rose to more than $1.6 million in states with contested races, up from $1.5 million in 2004.
_ Sitting and would-be judges personally attacked their opponents much more often, reversing earlier trends. Candidates sponsored 60 percent of attack ads last year, up from 10 percent of attack ads in 2004.
"If courts are going to stay impartial, we can't have judges moonlighting as backslapping politicians," said Bert Brandenberg, the campaign's executive director. "It's clear now after four straight election cycles that it's only getting worse. The system is heading for breakdown."
Business groups are taking a much bigger role in judicial campaigns and say that their participation is necessary to have an open debate.
"What was happening in the courts was the result of the impact of trial lawyers being pretty cozy with the trial court benches in a lot of these states," said Lisa A. Rickard, president of the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce. "Our mandate is to try and change the lawsuit-happy culture in the United States."
The group's activities and spending stretches from public education to legislative lobbying and judicial elections, she said.
Rickard would not say how much the institute has spent on elections. "As long as there are elections," she said, "it's important that people are educated about the issues."
The increasingly partisan and expensive judicial campaigns are spurring a debate in the states over how best to choose judges. Besides New Mexico's new law, other places where a switch to public financing or merit selection of judges is a front-burner topic include Illinois, Pennsylvania, Washington state and Wisconsin.
Currently, 23 states let voters pick the judges to their top appellate courts, while in 27 states the judges are appointed, usually by the governor or the legislature, according to the National Center for State Courts.
The debate over how to choose judges is not new, and actually dates back to the early days of the republic, when state legislatures or governors usually chose, said Seth Anderson, executive director of the American Judicature Society's Hunter Citizens Center for Judicial Selection.
But the combativeness of recent elections is new, he said.
"It creates the impression -- even if it's not the reality -- it creates the impression that justice is for sale," said Anderson, whose center supports the campaign's push for judicial independence.
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House bill offers student loan incentive
By BEN EVANS, Associated Press Writer
May 15, 2007
WASHINGTON — The House voted Tuesday to pay off up to $60,000 in student loans for lawyers who commit to working as public defenders or prosecutors for at least three years. The bill, which would cap the loan spending at $25 million a year, passed 341-73. A similar measure has been introduced in the Senate.
House sponsor David Scott, D-Ga., said the bill would help counter high turnover in public defender and prosecutor offices across the country.
"Our communities suffer when the criminal justice system lacks a sufficient supply of experienced prosecutors and defenders," Scott said in a statement. "Criminal caseloads become unmanageable, cases can be delayed or mishandled, serious crimes may go unprosecuted, and innocent defendants may be sent to jail while guilty criminals go free."
The bill would provide loan repayments of up to $10,000 per year — up to a cap of $60,000 — for law school graduates who work as criminal prosecutors or public defenders instead of taking what are often more lucrative jobs at private firms. The measure, which would expire in 2013 unless reauthorized, has backing from the American Bar Association and other legal groups.
"It is increasingly difficult for public law offices to retain experienced prosecutors and defenders," said Paul Logli, state's attorney in Winnebago County, Ill., and chairman of the board of the National District Attorneys Association. "Most of the young attorneys coming out of law school now are burdened with what most people would consider mortgage-sized debt."
Richard Goemann, a former public defender in Fairfax, Va., and director of defender legal services for the National Legal Aid and Defender Association, said young lawyers often leave the public sector just as they gain experience and training.
"Taxpayers have an interest in a fair and reliable criminal justice system," Goemann said. "Without experienced, talented public defenders and prosecutors, the criminal justice system does not work."
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Claim Death Row inmates lack legal aid called `fiction' – Ex-justices say prisoners' post-conviction appeals hobbled
Stan Diel, The Birmingham News
Saturday, May 12, 2007
A claim before the U.S. Supreme Court that says Alabama's Death Row inmates don't have adequate legal representation is "a work of fiction" and a "fantastic tale ... that has absolutely no foundation," the state says in documents filed with the high court on Friday.
Also on Friday, three former Alabama Supreme Court justices, a former appellate judge and three former presidents of the Alabama State Bar filed a friend-of-the-court brief in support of the inmates.
" Alabama's legal system regarding the provision of counsel to indigent Death Row inmates ... is in a state of crisis," said the filing.
Six current Death Row inmates, represented by a nonprofit advocacy group, claimed last month that they can't file later appeals, called "post-conviction" appeals, without lawyers, which the state doesn't provide. Alabama is the only state in the nation that doesn't provide condemned inmates with attorneys for such appeals.
Their filing, which asks the Supreme Court to hear their case, claims that to get a lawyer, inmates must convince a judge they need legal representation to protect their rights and that they have a solid legal argument for an appeal.
But, the inmate's filing says, they can't make those arguments successfully without an attorney. In essence, the Death Row inmates need a lawyer to prove they need a lawyer, they said. Alabama violates the Sixth and Eighth Amendments to the U.S. Constitution because inmates are unable to do work necessary to their appeals, they argue.
The state argued Friday that the Sixth Amendment applies only to criminal matters, and post-conviction appeals are "civil in nature." The court also said that the Eighth Amendment isn't applicable because it applies to the trial phase only, and not post-conviction appeals.
Opposing views:
The state also argued the inmates' filing paints a grossly inaccurate picture of their situation. All of the condemned inmates named as plaintiffs in the suit have lawyers, the state said.
"Inmates are overwhelmingly, if not uniformly, represented ... by superbly qualified counsel," the state's filing said.
The friend-of-the-court brief said more than a dozen of Alabama's Death Row inmates don't have lawyers to handle their appeals. The brief was filed by former state Supreme Court Justices Douglas Johnstone, Ernest Hornsby and Ralph Cook; former State Bar presidents Fred Gray Sr., William Clark and Robert Segall; and former Alabama Court of Criminal Appeals Judge William Bowen.
The state's filing also accuses lawyers representing Death Row inmates of fabricating a quote from an appellate court decision to support their case.
Bryan Stevenson, executive director of the Equal Justice Initiative of Alabama, which is representing the inmates, said late Friday that he had not seen the state's filing and therefore could not discuss its specifics. But he remains convinced the state's Death Row inmates are inadequately represented.
"It's our position that Alabama should not be the only state in the country that does not provide legal assistance to condemned prisoners," he said.
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No way for state to justify denying lawyers to inmates – [Editorial]
The Tuscaloosa News
May 15, 2007
Among all of the problems and shortcomings in Alabama’s criminal justice system, one of the worst is that we are the only state in the nation that does not provide condemned inmates with attorneys for appeals -- even if the inmate might have new evidence of innocence.
That means we are the only state willing to put a condemned inmate to death without ensuring that he or she has a fair hearing at every step of the legal process.
It’s a practical concern as well as a moral one. Inmates who are condemned to die have to convince a judge that they need legal representation to protect their rights and to prove that they have a substantial claim for an appeal.
But a suit filed by six death row inmates says they can’t make those cases effectively without an attorney. There’s a circular quality to their argument. They need a lawyer to convince a judge that they need a lawyer.
Their case has wound up in the U.S. Supreme Court. Responding to the inmates Friday, the state filed documents saying that the claims of inadequate legal representation are “a work of fiction … [a] fantastic tale … that has absolutely no foundation."
But who’s really spinning this issue? The fact that three former Alabama Supreme Court justices, a former appellate judge and three former presidents of the state bar weighed in on the side of the inmates Friday in a friend-of-the-court brief is a compelling development that should weigh heavily against the state’s hard-line position.
The brief on the behalf of the inmates’ argument was filed by former state Supreme Court Justices Douglas Johnstone, Ernest Hornsby and Ralph Cook; former Court of Criminal appeals Judge William Bowen; and former state bar presidents Fred Gray Sr., William Clark and Robert Segall.
In its argument filed with the Supreme Court, the state notes -- accurately -- that the six condemned inmates have attorneys. That’s proof enough that adequate representation is available, according to the state filing.
But the friend-of-the-court brief from the former state judicial officials says more than a dozen condemned Alabama inmates have no attorney to handle their appeals.
Far from “a work of fiction," the lack of legal representation is a stark reality for poor Alabamians on death row.
Even if it wanted to correct the problem, the state doesn’t have the money to do it. Over the weekend, it was disclosed that the prison population in the prison’s population is approaching the state’s all-time high of 28,440 -- more than twice the number the prisons were built to handle -- with no plans for new or expanded facilities.
Yet the state of Alabama can hardly justify -- fiscally, legally or ethically -- its willingness to let condemned inmates go to their deaths without an attorney.
Its attempt to dismiss the claims of the six condemned inmates before the Supreme Court as “a fantastic tale" is wrong. Dead wrong.
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One of America's greatest attorneys used the courts to change this nation
By Reginald T. Dogan, Pensalcola News Journal
May 12, 2007
When Daniel Soloway needed help 11 years ago with a civil rights case in Montgomery, Ala., the lawyers who hired Soloway referred him to Fred Gray.
Soloway had studied Gray's cases while attending law school in 1982, but he never thought he would meet Gray, much less work with the famous lawyer and icon of American history.
Their meeting and casework led to a friendship that has lasted more than a decade. Their bond is strong enough that Soloway is writing a screenplay based on Gray's autobiography, "Bus Ride to Justice."
If you don't know who Fred Gray is, you've probably heard of two of his most well-known former clients: Rosa Parks and the Rev. Dr. Martin Luther King Jr.
A friend of Parks, Gray served as her attorney during the Montgomery Bus Boycott when he was only 23 years old. A year later, he served as King's civil rights attorney.
Besides being a prominent attorney, Gray also is known around the world as a prolific speaker. Just returning from giving a human rights speech in New Delhi, India, Gray will be the keynote speaker tonight for the Pensacola Jewish Federation Campaign Kickoff Party.
The invitation-only event is a night of celebration and fellowship for the organization, which along with the United Jewish Communities, performs charitable deeds and raises money to support social and economic endeavors locally and internationally, said Soloway, vice president and chairman of the Pensacola Jewish Federation campaign committee
Gray, 70, is known worldwide as one of America's best attorneys. As a young man denied the opportunity to attend law school in his home state, Gray vowed "to become a lawyer, return to Alabama, and destroy everything segregated I could find."
He eventually used his tremendous legal skills to desegregate Alabama's public schools and colleges. But he didn't stop there. He went on to quench his thirst for racial justice by challenging segregated restaurants, housing authorities, professional associations, parks and recreation, jails and law enforcement.
Gray also fought and won compensation for the men involved in the infamous Tuskegee syphilis study, and later became the first black congressman in Alabama since Reconstruction, and the first black person to become president of the Alabama Bar Association.
Soloway described Gray as a soft-spoken man with tremendous dignity, who didn't speak loudly and carry a big stick but who used the courts to change this country and, in many ways, the world.
"The greatest thing I've heard about Fred Gray is that he's one of the greatest Americans to ever live," Soloway said. "He is an integral part of the civil rights movement."
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Civil justice costs condemned: Reports say Alabama among worst in lawsuit abuse
ERIC VELASCO, The Birmingham News
May 14, 2007
Alabama is one of the prime offenders in a U.S. civil litigation system that costs $865 billion per year, 75 percent of which is wasted, two new studies say. The $664 billion in excess costs for civil justice amounts to a tort tax of $7,848 on a four-person household, according to a study released in March by the Pacific Research Institute.
Generous Alabama juries and relatively few caps on the cash they award helps make Alabama the 10th worst tort system in the country, said Lawrence McQuillan, the principal author of the PRI study, "Jackpot Justice." Dollar figures weren't available from the rating, which used a ratio of jury awards to the size of the state's economy.
An annual assessment released last month by an arm of the U.S. Chamber of Commerce ranked Alabama the 47th worst state tort system." Alabama is near the bottom of the barrel," McQuillan said. "Basically, it's dragging down not only its own economy but also it's imposed burdens on the rest of the country, too."
Critics say the PRI study and Chamber rankings are part of a longtime campaign by corporations to protect their economic bottom lines from the people their products harm.
PRI's funding sources, for example, include oil, banking, pharmaceutical communications and other businesses or related foundations, according to the group SourceWatch.
"It's a fundamental right that is being threatened here," said Niko Corley, spokesman for the Alabama Trial Lawyers Association. "CEOs want immunity and reduced damages. The less they have to pay to victims of their wrongdoing, the more they can put in their wallets."
But proponents of limits on lawsuits and jury awards say the studies help people understand the extent of waste in the civil justice system and Alabama's contribution to the problem.
"Every major survey mentions Alabama as one of the worst states in the nation," said Skip Tucker, executive director of the advocacy group Alabama Voters Against Lawsuit Abuse. "Anybody that says we don't have a problem with lawsuit abuse in Alabama either has an agenda or has not studied the situation."
Ripple effect:
Pacific Research Institute says its study is the first comprehensive look at the cost of civil litigation and its ripple effect on the economy. "We're the only study that has tried to carve out what is legitimate from what is meritless," said PRI's McQuillan.
The study concluded that $201 billion per year is spent on legitimate civil cases.But the cost of the $664 billion per year in excess is lost lives and jobs, higher prices and a lower standard of living, the study said.
"Defensive medicine," unnecessary tests ordered by doctors to avoid lawsuits, costs $124 billion, the study said. Rising health care prices leave 3.4 million people without insurance, it said.
Fear of lawsuits makes some businesses reluctant to develop new products, costing the economy another $367 billion, the study said.
Not included in PRI's waste calculation is the estimated $684 billion per year that lawsuits cost stockholders, the study said. Workers lose up to $3.9 billion per year in wages and pensions when lawsuits bankrupt their employers, it said.
But a 2006 study by the Washington-based Economic Policy Institute found no relationship between the costs of being sued and jobs, productivity, profits and product development, said Ross Eisenbrey, EPI's vice president and policy director.
Critics also attack the methods used to calculate the amount of waste in the system.
"It's lousy science," Eisenbrey said. "The notion of that much waste in the tort system is overblown. All this is a smokescreen for the insurance industry and a lot of large businesses that don't want to be sued."
McQuillan defended PRI's decision to define punitive damages, jury awards designed to punish, as excessive."The civil justice system was never intended to punish, just to compensate for actual losses," he said. "There is a place for punishment: the criminal courts."
But punitive damages help ensure that corporations don't put profit ahead of consumer safety, said Corley of the Alabama trial lawyer group.
Battleground:
For decades, Alabama has been a tort reform battleground, where the campaign cash and rhetoric flow freely.But people on both sides say Alabama's reputation has improved since the mid-1990s, when Forbes magazines dubbed Alabama the nation's "tort hell."
Alabama has not made the annual list of "judicial hellholes" the American Tort Reform Association has done since 2002, although some state jurisdictions have been singled out for a "dishonorable mention."
Tucker, the tort-reform proponent, says Republican-dominated courts are key to protecting tort limits passed in 1995.
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Cobb, Pryor speak at local event
By Rick Harmon, The Montgomery Advertiser
May 2, 2007
Alabama Supreme Court Chief Justice Sue Bell Cobb and William H. Pryor Jr., Circuit Judge, U.S. Court of Appeals, Eleventh Circuit spoke to judges, legislators, attorneys and students Tuesday as part of an area event to celebrate Law Day.
Cobb talked about the role of judges in today's society, while Pryor discussed the crucial role the executive branch had played throughout American history.
Alabama Bar Association President Fournier J. "Boots" Gale and Alabama Trial Lawyers Association President and former Alabama Supreme Court Justice Ralph Cook presented the judges with Alabama-clay eagle statuaries after their talks.
The event, co-hosted by the Alabama Bar Association and the Alabama Trial Lawyers Association, was part of national Law Day, which has been celebrated for more than 40 years.
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Judge Pryor says times no so bad for judicial independence
By PHILLIP RAWLS, The Associated Press
May 1, 2007
MONTGOMERY, Ala. (AP) — Federal appeals court Judge Bill Pryor said Tuesday he doesn't share the concerns of former Supreme Court Justice Sandra Day O'Connor and others who say the independence of America's judiciary is under severe attack.
"I submit the independence of the judiciary today is as secure as ever," Pryor said.
Pryor, a member of the 11th U.S. Circuit Court of Appeals and a former Alabama attorney general, spoke at a Law Day breakfast sponsored by the Alabama Trial Lawyers Association and the Alabama State Bar Association. Law Day is a national day that has been set aside since 1958 to celebrate the American legal system.
O'Connor and some in the American Bar Association have warned that judicial independence is under heavy attack due to heated political criticism, legislation to restrain judges and budget cuts.
Pryor said attacks have been much worse in the past, including when President Franklin Roosevelt tried unsuccessfully to add six more justices to the U.S. Supreme Court because he didn't like the court striking down some of his New Deal legislation.
Judges seeking to protect their ability to rule independently should "respect the limits of their authority" and be cautious in their rulings, Pryor said.
Recalling advice from Alexander Hamilton, one of the nation's founding fathers, Pryor said judges "must depend on the persuasiveness of our written opinions to command the respect of our fellow citizens. In that way we have the foremost responsibility of safeguarding our independence."
Alabama's first female chief justice, Sue Bell Cobb, used the Law Day event to push for an end to partisan elections for judges in Alabama. Cobb, the only Democrat on the nine-member state Supreme Court, reminded her audience that Alabama's race for chief justice was the most expensive judicial race in America last year, with candidates raising $7.3 million.
"We need to take all the huge amounts of money out of it," and nonpartisan elections would help do that, she said.
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Law Day – [Editorial]
The New York Times
May 1, 2007
President Dwight Eisenhower established May 1 as Law Day to co-opt the biggest day on the socialist calendar. While much of the world marked May Day with critiques of capitalism and parades celebrating working men and women, the United States would honor, President Eisenhower declared, the “national dedication to the principle of government under laws.”
Despite its propagandistic beginnings, a day set aside to honor the rule of law was not a bad idea. On the first Law Day, in 1958, Gov. Averell Harriman of New York attacked Gov. Orval Faubus of Arkansas for blocking integration. His fight to keep black children out of the Little Rock Central High School “offends the concept of law on which our society is based,” Harriman insisted.
Law Day proved to be a boon to international law, which was seen during the cold war as a check on communism. In his proclamation creating the holiday, Eisenhower emphasized law’s role “in the settlement of international disputes.” On Law Day 1959, Senator Prescott Bush of Connecticut, grandfather of the current president, urged, remarkably, that international conflicts be settled by the World Court.
While the Soviet threat loomed, Law Day attracted a sizable following. In 1961, a headline in The Times reported, “100,000 Law Day Celebrations Take Place Throughout Nation.” But as the cold war waned, so did Law Day. It is marked today most notably by the American Bar Association, and it is perilously close to becoming a celebration of lawyers.
That is unfortunate. As long as there was a national consensus about the importance of the rule of law, Law Day felt superfluous, like celebrating gravity. But for six years now, the rule of law has been under attack. An array of doctrines has emerged to undermine it, like the enemy combatant doctrine, which says people can be held indefinitely without trial, and the unitary executive doctrine, which insists that a president can do as he wants in many areas, no matter what Congress says.
In keeping with tradition, President Bush has issued a proclamation inviting Americans today to “celebrate the Constitution and the laws that protect our rights and liberties.” It rings more than a little hollow, though, as he continues to trample on civil liberties in the war on terror, and stands by an attorney general who has politicized the Justice Department to a shocking degree.
The less committed a president is to the law, the more need there is for Law Day, which makes it a holiday whose time has come.
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Judicial override not a fair shake in state capital cases – [Editorial]
The Tuscaloosa News
May 1, 2007
The Alabama House last week killed a major proposed reform for handling capital cases. It was disappointing that the House chose to trash the bill without allowing a full debate. Yet it wasn’t particularly surprising. Although Alabama’s system of handling death penalty cases is deeply flawed, the Legislature is reluctant to change it for fear of appearing soft on crime.
The argument for imposing a moratorium on the death penalty is to allow a comprehensive debate. That now seems more compelling than ever.
Rep. Demetrius Newton, D-Birmingham, sponsored the measure that the House killed. It would end Alabama’s much-criticized practice of judicial override in capital cases by letting a jury -- not a judge -- decide the ultimate penalty.
Alabama is one of the few states that allow judges to ignore a jury’s recommendation in capital cases. A judge may sentence a convicted murderer to death even if the jury recommends life without parole.
Newton, noting that Alabama continues to elect its judges, said he believes circuit judges too often override jury recommendations in response to political pressure. The judges, like the lawmakers, don’t want to be accused of being “soft on crime."
A critic of Newton’s bill, state Rep. Allen Treadaway, R-Morris, argued that judges need the right to override when juries don’t follow the law and make a bad decision on punishment. He said he doesn’t know of a single case in Alabama where an override was used without a good reason.
But according to one study, judicial override is responsible for between 20 percent and 25 percent of the capital sentences in Alabama.
An assessment team from the American Bar Association cited judicial override as the leading reason why Alabama, which ranks 23rd in population, has the sixth-largest death row in the United States. Though Alabama has only half the population of Georgia, which does not permit judicial override, it sentences four times as many people to death.
That should be an obvious concern. So should other death penalty issues in Alabama.
One of those issues is the fact that the state does not ensure legal representation for inmates after their first round of appeals. Volunteer lawyers take up some of the slack, but they’re overwhelmed. Every state except Alabama ensures that people at risk of execution have lawyers if they can’t afford them.
The quality of lawyers who are appointed to represent poor capital defendants also has come under criticism.
Other troublesome aspects of the death penalty in Alabama include racial and geographic disparities in sentencing.
At least 37 local governments in the state have called for a moratorium to allow careful consideration of the death penalty. But just as they rejected Newton’s proposed reform last week, hardliners in the Legislature have rejected the moratorium year after year.
The system is patently unfair. The Legislature’s intransigence is unconscionable.
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Conservatives rev up effort to revamp Missouri's judicial-selection system
By Jo Mannies, ST. LOUIS POST-DISPATCH
May 01, 2007
If critics in the Legislature have their way, Missouri voters will be asked to do away with the state's 67-year-old system for appointing and retaining judges on its highest courts, and in Kansas City and St. Louis.
A state House panel is expected to vote later this week on a proposed constitutional amendment, known as House Joint Resolution 31, that would do just that. If voters approve, the governor and the state Senate would wield more power over who gets on the bench. Voters would lose it.
Supporters of the proposal, including the Federalist Society, say their aim is to rein in an out-of-control judiciary that has issued some unpopular rulings. Opponents, which include the Missouri Bar Association, say the result would put politicians in control of the courts.
Both sides accuse the other of playing politics, in hopes of using the judicial issue to whip up like-minded voters for next year's statewide elections. Supporters would like to see the proposal on the November 2008 ballot.
The proposal targets the state's "Missouri Plan," which affects the judges sitting on the state Supreme Court, its appeals court and the circuit judges in the St. Louis and Kansas City metropolitan areas. The plan now requires a sitting governor to select judges from panels assembled by special nonpartisan commissions. Those commissions are made up of gubernatorial appointees and lawyers from the Missouri Bar. Judges face retention votes from the public every six or 12 years, depending on the post.
Almost two dozen other states have set up systems modeled, at least in part, after the Missouri Plan.Under the proposal in the state House, Missouri would instead adopt a selection system that mirrors the federal setup.
A governor would nominate a judge, and the Missouri Senate would either approve or reject the nominee. The public would no longer vote on whether to retain judges. Instead, the Legislature would vote on whether to keep them.
The proposal's chief sponsor — state Rep. Jim Lembke, R-Mehlville — says the
change is needed to exert more legislative control over the state's judiciary and eliminate what critics assert is undue influence by the Missouri Bar. The association, whose members include 28,000 lawyers, is accused by critics of packing the panels of prospective judges with Democratic-leaning lawyers.
Lawyer Bill Placke, president of the St. Louis chapter of the conservative Federalist Society, said the weakness in the Missouri Plan is exemplified by the failure of Missouri voters to oust any judge during the plan's existence.
Voters lack the information and knowledge that legislators are elected to wield, Placke said during a local debate last week on the issue.
But Missouri Bar executive director Keith Birkes contends that the changes would be a throwback to the corrupt judicial systems in the 1920s and 1930s that led to the creation of the Missouri Plan.
"This would politicize the selection of judges in ways that would compromise the judiciary's ability to act impartially and fairly in matters that come before them," Birkes said.
Former Bar president Doug Copeland, who participated in last week's debate on the issue, said it's unfair to eliminate the voice of voters just because they haven't ousted any judges. The current system has flaws, he added, "but the governor's office is far more political."
The state Democratic Party, which opposes the proposed changes, goes even further.
"Gov. Matt Blunt's court plan would allow him to sell positions on the bench for campaign contributions," said Democratic Party spokesman Jack Cardetti.
Blunt spokeswoman Jessica Robinson said the governor has yet to take a position on the proposal, but he supports the general idea of replacing Missouri's current setup with a federal-like system.
"He believes the federal system is better," Robinson said, adding that many Missourians are unaware that the state has a different plan.
But Robinson emphasized that the governor's chief priority is another measure —
House Joint Resolution 1 — which would bar Missouri judges from ordering tax
increases or "new taxes." That proposed constitutional amendment also would have to go before voters.
In any event, Lembke said he expects the state House's Special Committee on
General Laws to approve HJR31 this week and send it on to the House floor. The
committee's chairman, state Rep. Steven Tilley, R-Perryville, is among its
supporters.
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Many female lawyers dropping off path to partnership
By Sacha Pfeiffer, The Boston Globe
May 2, 2007
For women, the law remains a frustrating profession.
Female lawyers continue to face intractable challenges in their attempts to become partners, causing them to abandon law firm careers -- and the legal profession entirely -- at a dramatically higher rate than men, according to a local study to be released today.
The study echoes the findings of other recent major reports, but offers more detailed statistics and demographic data. It also aims to draw attention to the social consequences of this troubling exodus: As fewer women ascend to leadership positions in their firms, the pool of women qualified to become judges, law professors, business chiefs , and law firm managers is shrinking.
"This shows that we are reaching a crisis point when it comes to the retention and advancement of women in the legal profession, and therefore a crisis point when it comes to women leaders generally," said Lauren Stiller Rikleen, a senior partner at the law firm Bowditch & Dewey and author of the book "Ending the Gauntlet: Removing Barriers to Women's Success in the Law."
For years, law firm leaders have insisted that as more women graduate from law school and enter private practice, the presence of women in leadership positions in the judiciary, in business, and in academia would grow correspondingly. But even though the gender gap in law firm hiring has been narrowing over the past decade, women are dropping off the partner track at alarming rates.
Of the 1,000 Massachusetts lawyers who provided data for the report, 31 percent of female associates had left private practice entirely, compared with 18 percent of male associates. The gap widens among associates with children, to 35 percent and 15 percent, respectively -- reflecting the cultural reality that women remain the primary care givers of children and are therefore more likely to leave their firms for family reasons.
The dropout rate among women lawyers is overwhelmingly the result of the combination of demanding hours, inflexible schedules, lack of viable part-time options, emphasis on billable hours, and failure by law firms to recognize that female lawyers' career trajectories may alternate between work and family, the report found.
The report, "Women Lawyers and Obstacles to Leadership," which was produced by the MIT Workplace Center in conjunction with several of the state's major bar associations, is rife with devastating commentaries on law firm life, including one female lawyer's remark that "I would not encourage my daughters to enter the legal profession."
Among its findings:
*Women make up only 17 percent of law firm partners.
*Women leave the partnership track in far greater numbers than men.
*Women stop pursuing partnership mainly because of the difficulty of combining work and child care.
*Nearly 40 percent of women lawyers with children have worked part time, compared with almost no men, even though men in the profession have more children than women, on average.
*Many firms have flextime policies but are "clever in discouraging their uses."
The impetus for today's report was a 2003 address to the Women's Bar Association by US District Court Judge Nancy Gertner, who called for urgent attention to the relative lack of women in leadership positions in the law. That spurred the creation of the Equality Commission, comprising representatives from the WBA, Women's Bar Foundation, Boston Bar Association, and Massachusetts Bar Association.
The commission's report surveyed the state's 100 largest firms about their attrition rates from 2002 to 2004, and also surveyed individual male and female lawyers about their movements in and out of firms from 2001 to 2005. About half the firms responded. Among individual lawyers, about 35 percent, or nearly 1,000, responded.
Of women who jump off partnership track, slightly more than half move to legal positions at nonprofit groups, government agencies, or corporations, where their schedules are often less grueling, according to the report. But 46 percent leave the law altogether, compared with less than a third of men who leave the partnership track.
Lawyers who step off the partnership track can often stay at firms in other capacities, including as so-called income partners. But the hours are often just as grinding, and income partners are essentially salaried employees, unlike "equity partners" whose earning potential is higher.
Practicing law also seems to force women to choose between working and having a family , the report said ; senior male lawyers are more likely than their female peers to be married or living with partners (99 percent vs. 84 percent, respectively) or to have children (80 percent vs. 68 percent).
Two other local studies in the past decade reached similar conclusions. In 1999, a Boston Bar Association report concluded: "We are in danger of seeing law firms evolve into institutions where only those who have no family responsibilities -- or, worse, are willing to abandon those responsibilities -- can thrive." In 2000, the Women's Bar Association released a report that found workplace flexibility was critical to women's success, but often elusive.
"The conclusions of all of these studies are very much the same," said Mona Harrington, program director of the MIT Workplace Center, "and that in itself is a story: Nothing is changing."
The ramifications of that failure to change extend well beyond law firm corridors, the study's backers warned. "If we don't reverse this trend, we will not only not have a greater representation of women on the bench and in academic institutions," said Pamela E. Berman, a recent past president of the Women's Bar Association, "but we'll actually see regression."
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