Legal veteran is new Pickens judge - W.O. 'Buddy’ Kirk has a history in criminal defense and prosecution
By Robert DeWitt, Dateline Alabama.com
November 27, 2006
CARROLLTON | W.O. “Buddy" Kirk smiled as he looked at the bullets on the table behind his desk.
“I’ve hung onto them all these years," he said, picking up one of the 20mm projectiles.
In the late 1970s, Kirk served on the Alabama Bar Association’s board of bar commissioners. At a meeting in Montgomery one day, State Bar President Bibb Allen walked in with a box and handed each of the board members a bullet.
“He said, 'I’m giving you these because today, we’re going to have to bite the bullet,’’ Kirk said. The bullets have stuck with Kirk over the years. “Bite the bullet" means something to him.
“Hard decisions," he said. “Sometimes a decision is very difficult because there are good points on both sides." Tough decisions are how judges earn their pay. Gov. Bob Riley tapped Kirk to fill the district judgeship in Pickens County vacated when Ira Colvin resigned after being arrested for methamphetamine possession. Colvin himself had replaced Tommy Woodard, who resigned after being accused of having improper contact with women involved in cases before his court.
After two embarrassingly high-profile resignations, many officials felt the next judge had to restore confidence in the legal system’s integrity. And many of the county’s lawyers and legal officials felt that there was only one choice for a Republican governor to make.
“He’s one of those people who commands respect," said Circuit Clerk Bobby Cowart. “He came in and right off the bat, he was in charge." Tim McCool practiced law with Kirk from 1999 until Kirk’s appointment two months ago. Kirk is the perfect man to restore confidence in the legal system, he said.
“He’s got an impeccable reputation," McCool said. “He’s got 30-plus years of honest lawyering in this county. His word is his bond. He’s going to follow the law to the letter. He’s above reproach."
At 67, Kirk looks distinguished in his round spectacles and robe. He has a grandfatherly face with a genial smile and a gentlemanly Southern accent. He enjoys college football and likes to talk about his grandson, a high school athlete in Georgia. And after 42 years as an attorney, he’s still hungry to learn something new.
“I really was not ready to retire," Kirk said. “This was another aspect of the legal profession that I had not experienced. It’s a challenge to me, learning something new about the legal profession."
Kirk is well aware of the district judgeship’s recent history. He knows the scrutiny attached to the job, but he says he doesn’t feel any extra pressure.
“I don’t think it puts any extra burden on me," he said. “I want the district court to do what’s right and give people justice. I think the average person wants their courts to be open, honest and fair. I think the average person wants to feel, 'When I go to court, I’m going to get a fair shake.’ “
A Carrollton native, Kirk played football at Carrollton High School and graduated in 1957. After attending Auburn University for a year, he transferred to the University of Alabama and graduated with a degree in commerce and business administration in 1961. He attended law school at UA, graduating in 1964.
He married his wife, Emily, a Carrollton majorette, while in college, and she worked as a band director at Northside High School while he got his degree. She was also band director at Aliceville High School and Pickens Academy. His two daughters, Amy and Carol, were high school majorettes. Amy was a Crimsonette at UA.
Bypassing a chance to practice with the law firm of former Sen. Howell Heflin right out of college, Kirk chose instead to go to Mobile to work for Gillard, Wilkins, Smith and Cox. Emmett Cox, a partner in the law firm, is now a federal judge on the 11th Circuit Court of Appeals.
In Mobile, Kirk did plenty of trial work, mostly civil cases, which suited him fine. When he returned to Carrollton in 1969 to practice with the late John Curry, he did mostly criminal defense work.
After Curry’s death, Kirk shared an office with former Probate Judge Robert Hugh Kirksey and later formed a partnership with McCool. In addition to criminal defense work, he’s also prosecuted criminal cases.
“I’ve been on both sides of the table," Kirk said. “I think it really gives me a perspective."
Having been on both sides of a case, Kirk says the burden falls more heavily on defense lawyers. Their clients often lack money, so they don’t have the investigative resources at their disposal that the prosecution does.
“Criminal defense work is harder on the lawyer than prosecution," Kirk said. “You’ve got a person whose freedom -- or even life -- is in your hands and your hands alone."
In criminal cases, the satisfaction comes from making a difference, he said.
“Three or four murder cases stand out in my mind," Kirk said. “I thought the defendant was innocent and the verdict was for acquittal. I felt like justice was done.
“A lot of lawyers say 'We won, so justice was done.’ That’s not how I felt. I’ve represented clients who I felt were guilty and they were convicted and I still felt justice was done."
Trial work is what Kirk finds attractive about a judgeship.
“It’s what I’ve done most of my life," he said. “You get to be in court and I happen to like that. Some lawyers don’t, but I do."
A district judge gets to be in court a lot. In addition to hearing all misdemeanors in the county jurisdiction, district judges conduct preliminary hearings in all felony criminal cases. They hear civil suits of up to $10,000 and serve as the judge for juvenile court.
In addition, the district judges in the 24th Judicial Circuit are acting circuit judges for all domestic relations cases, including divorces and custody fights. For Kirk, the biggest surprise about his new job is how busy he stays when he’s not on the bench. He smiled recalling another pearl of wisdom, this time from Presiding Circuit Judge James Moore.
“Judge Moore told me, 'A whole lot of being a judge is grunt work,’" Kirk said. “I’ve found he was exactly right. There is a whole lot of grunt work to be done."
That includes signing scores of papers, from orders from the District Attorney’s bad check unit to child support. Sometimes he finds a stack of papers on his desk that he must read before signing it.
“You can’t just sign something without knowing what it is," he said.
So far, working with domestic relations and juvenile courts has given him the most satisfaction, because he feels he’s making a difference in the life of a family or a child.
If Kirk decides to run in two years for the seat he was appointed to serve, a prospect that is still uncertain, he’ll run as a Republican in heavily Democratic Pickens County.
His age is another consideration, should he decide to run. He’d be sworn in two months before he reaches age 70, and by law cannot run again after that.
“Right now, I’m looking to run," he said, and smiled. “But its not like being 40 years old and saying, 'Yeah, definitely.’"
Kirk readily admits he’s still learning the job. Cowart, Moore and district judges L.E. Gosa and Jerry Clary have been extremely helpful, he said, but he doesn’t think there’s any mystery about what’s expected.
“I don’t think there’s anything special I have to do," he said. “I just have to perform my duties in a professional, honest and truthful manner.”
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Debt relief may be in sight for lawyers
BY ERIC HERMAN, The Chicago Sun Times
November 27, 2006
For prosecutors and public defenders drowning in debt, help might soon be on the way.
Since 2003, Sen. Dick Durbin (D-Ill.) has been pushing legislation that would grant student loan relief to public sector lawyers in the criminal justice system. With the Democrats in control of Congress, Durbin plans to reintroduce his bill early next year. Some hope it finally has a chance of passing.
"It's the defining issue of this era" for prosecutors, said Bernie Murray, chief of criminal prosecutions for the Cook County state's attorney's office. "The number of people with over $100,000 in debt is amazing."
The average young lawyer from a private law school graduated with $78,763 in debt last year, according to the American Bar Association. The average graduate of a public law school owed $51,056. Durbin's office puts the numbers higher, with the average private law school graduate carrying $97,763 in debt, and public school graduates owing $66,810
According to Murray -- who had $14,000 in debt when he graduated in 1983 -- the trend is forcing lawyers to leave the state's attorney's office, and persuading third-year law students not to apply.
"It definitely weighs on me. I'm going to be paying it for the rest of my life," said assistant Cook County State's Attorney Jullian Brevard, who owes about $90,000.
Plan passed committee, then stalled
Brevard, 28, graduated from law school at Catholic University in Washington, D.C., in 2003. His debts consist of private and government loans requiring him to pay $674 per month, which he calls "a pretty good chunk of one of my checks." He earns $49,000 a year after two years with the office.
Brevard prosecutes child abuse cases and believes in his work, calling it "essential to having an orderly society." Still, his loan payments have forced him to look for a second job and get help from his father.
"We lose a lot of good attorneys, and it's for no other reason other than financial," he said. "People have two and three kids . . . Realistically, it just gets harder for them to stay in this office."
It becomes especially hard when the big bucks beckon. A starting assistant Cook County state's attorney earns $48,000 a year. Assistant public defenders begin at about $43,000, though they make more than prosecutors in later years. Meanwhile, first-year lawyers at major Chicago law firms make $130,000 on average, according to the National Association for Law Placement.
"A number of people I went to law school with got their loans taken care of within two years," said assistant public defender David Will, 38, who graduated from John Marshall Law School in 1998 and owes $40,000. "I probably have more than 10 or 15 years on my note to go."
To remedy the problem, Durbin is pushing the Prosecutors and Defenders Incentive Act. If passed into law, the Justice Department would pay up to $10,000 a year of the law school loans of any prosecutor or public defender. To qualify, a lawyer would have to commit to three years of service. Loan assistance would be capped at $60,000 per lawyer and would apply only to loans made through federal programs.
The Senate Judiciary Committee passed the bill in May, thanks partly to judiciary chairman Sen. Arlen Specter (R-Penn.). But the leadership kept it from coming to the floor for a vote.
"We're hoping now with the change of leadership in the Senate, we can get this enacted," said Durbin, who will be the assistant majority leader come January. "It's the highest priority."
Durbin, Murray said, "is a liberal guy, so a lot of prosecutors don't like him. But he's my hero."
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Lawyers Debate Why Blacks Lag at Major Firms
By ADAM LIPTAK, The New York Times
November 29, 2006
Thanks to vigorous recruiting and pressure from corporate clients, black lawyers are well represented now among new associates at the nation’s most prestigious law firms. But they remain far less likely to stay at the firms or to make partner than their white counterparts.
A recent study says grades help explain the gap. To ensure diversity among new associates, the study found, elite law firms hire minority lawyers with, on average, much lower grades than white ones. That may, the study says, set them up to fail.
The study, which was prepared by Richard H. Sander, a law professor at the University of California, Los Angeles, and was published in The North Carolina Law Review in July, has given rise to fierce and growing criticism in law review articles and in the legal press. In an opinion article in The National Law Journal this month, for instance, R. Bruce McClean, the chairman of Akin Gump Strauss Hauer & Feld, a major law firm, took issue with the study’s “sweeping conclusions” but not its “detailed data analysis.”
James E. Coleman Jr., the first black lawyer to make partner at Wilmer Cutler & Pickering, a prestigious Washington law firm now known as WilmerHale, said Professor Sander was overemphasizing grades at the expense of other qualities like writing skills, temperament and the ability to analyze complex problems.
“I don’t think you can do what he is trying to do, which is to use purely objective data to explain what is happening in law firms,” said Professor Coleman, who now teaches law at Duke and is a co-author of a response to Professor Sander called “Is It Really All About the Grades?”
Achieving racial diversity at all levels is an urgent issue, law firms say, but they acknowledge that gains among new associates disappear by the time new partners are elected. “We’ve seen stagnation and even decline when it comes to race,” said Meredith Moore, the director of the New York City Bar Association’s diversity office.
The new study proposes an explanation. It found that the pool of black lawyers with excellent law-school grades is so small that firms must relax their standards if they are to have new associates who resemble the pool of new lawyers.
Professor Sander found that very few blacks graduated from top-30 law schools with high grades.
Yet grades, according to many hiring partners and law students, are a significant criterion in hiring decisions, rivaled only by the prestige of the law school in question. For instance, Professor Sander found, “white law school graduates with G.P.A.’s of 3.5 or higher are nearly 20 times as likely to be working for a large law firm as are white graduates with G.P.A.’s of 3.0 or lower.”
The story for black students appears to be different. Black students, who make up 1 to 2 percent of students with high grades (meaning a grade point average in the top half of the class) make up 8 percent of corporate law firm hires, Professor Sander found. “Blacks are far more likely to be working at large firms than are other new lawyers with similar credentials,” he said.
But black lawyers, the study found, are about one-fourth as likely to make partner as white lawyers from the same entering class of associates.
Professor Coleman attributed that largely to law firms’ failure to provide minority associates with mentoring, encouragement and good assignments. “It’s such a high-pressure place that places so much emphasis on getting it right that a young associate easily loses confidence,” he said. “But to succeed you have to take risks.”
No one disputes that firms are failing to retain and promote most of the minority lawyers they hired, at salaries that can start at $135,000.
“Black and Hispanic attrition at corporate firms is devastatingly high,” Professor Sander wrote, “with blacks from their first year onwards leaving firms at two to three times the rate of whites. By the time partnership decisions roll around, black and Hispanic pools at corporate firms are tiny.”
Less prestigious firms are much less likely to hire minority lawyers with substantially lower grades than white lawyers, Professor Sander said in an interview.
“Black associates report experiences at small firms — in mentoring, job responsibility and contact with partners — that are generally indistinguishable from the experiences reported by white associates,” Professor Sander said. Those experiences suggest that minority lawyers at small firms have a good shot at partnership, but Professor Sander said he did not have direct evidence on that point.
Critics generally concede the raw numbers. But they offer different reasons for the gap between hiring and promotion. Some point to old-fashioned racism. Others say that firms act institutionally in hiring but leave work assignments to individual partners. Those partners often provide poor training, rote assignments and little mentoring to minority lawyers.
That should be unsurprising given the credentials gap, said Roger Clegg, president of the Center for Equal Opportunity, which opposes hiring preferences based on race.
“If everyone in the law firms knows you’re hiring according to a double standard, you actually may end up compromising the confidence that partners and others have in the ability of people hired on the basis of preference,” Mr. Clegg added. “It actually reinforces stereotypes.”
The experience of white female associates provides a series of contrasts. Women at large firms have slightly better grades than men, yet they are also underrepresented in classes of new partners. But women do not report the absence of mentoring and choice assignments that minority associates do.
“Strikingly, women’s self-reported work experiences — in terms of mentoring, level of responsibility and access to partners — are positive and indistinguishable from the self-reports of white men,” Professor Sander said. “Consistent with this picture, white women’s attrition rates as entering and midlevel associates are nearly as low as those of white men.”
Associates typically work for about eight years before being considered for partnership. “As women of all races approach the seventh year of their tenure, and contemplate the compatibility of big-firm partnership with their family and quality-of-life goals,” Professor Sander said, “many women pull out of the running for partners and seek out less demanding jobs.”
Though many supporters of affirmative action question Professor Sander’s conclusions, most academic experts say his empirical work is sound.
“He makes a good case,” said Kenneth G. Dau-Schmidt, an authority on the economic analysis of legal problems at the Indiana University School of Law. “What the data tells him is that there’s a mismatch going on and it’s hurting black students.”
In their response to the Sander study, Professor Coleman and Mitu Gulati, another law professor at Duke, wrote that the Sander paper would aggravate the problem it described.
“The harm of the Sander article,” the two professors wrote, “is that it will contribute to the stereotyping that already undermines the success of black associates in elite corporate law firms.”
Stephen F. Hanlon, a partner with Holland & Knight, a national law firm, said the Sander study overlooked a positive reason for high attrition rates among minority lawyers. Female and minority lawyers, he said, are often hired away from law firms by corporate law departments, and that will have an impact over time.
“We have trained a very bright generation of women and minority lawyers who have gone to our corporate clients and who now decide whether to hire us,” Mr. Hanlon said.
Supporters of affirmative action acknowledge that trend, and add that high rates of minority attrition should be unsurprising given the grinding, mercenary culture of most law firms.
“Minorities, when they look at management structures and see that so few make it, they probably give up,” said Veta T. Richardson, the executive director of the Minority Corporate Counsel Association.
Even Professor Sander’s critics say he has started an important discussion.
“We have done our share of stone throwing,” Professor Coleman and Professor Gulati wrote in their response, “but that should not take away from the fact that Professor Sander has identified a real problem that needs serious study, and that his study has added considerably to the limited body of available, public research, even though his conclusions are, at best, premature.”
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Judicial plan in contempt of Ga. Voters
Atlanta Journal Constitution
Georgia Democrats are in deep trouble. They've lost the governor's office and the state House and Senate, they've pretty much run through their bench of candidates with statewide appeal, and in an election year in which Democrats made gains almost everywhere in the country, they made no headway whatsoever here in Georgia.
Their prospects have become so dismal, in fact, that the only thing that can give Georgia Democrats hope — their only chance of being resurrected anytime soon — is Georgia Republicans.
But with the state GOP about to overreach in spectacular fashion, that hope may not be in vain.
On Nov. 7, Georgia Republicans suffered just one real setback, in the race for state Supreme Court justice between incumbent Carol Hunstein and challenger Mike Wiggins.
Officially, court races are nonpartisan in Georgia, on the theory that justice and the law are not subject to partisan ideology. But a lot of Georgia Republicans — and more importantly, their biggest financial backers — don't agree with that approach. They want a judiciary that will do their bidding, and to get it they worked hard to defeat Hunstein and install Wiggins as their hand-picked candidate.
Gov. Sonny Perdue, for example, endorsed Wiggins and campaigned for him, and the Republican Party paid for ads on Wiggins' behalf. Insurance companies, automakers, the medical industry and other special interest groups contributed millions of dollars in a supposedly independent effort to defeat Hunstein by tagging her as an "activist liberal judge."
But it didn't work. Perdue got almost 58 percent of the vote in his race, but the "activist liberal judge" did even better, with Hunstein pulling 63 percent of the vote. Georgians clearly voted in favor of keeping the judiciary independent, rejecting the GOP's effort to turn the state judiciary into its partisan playtoy.
But some Republicans apparently aren't willing to respect the will of the people. Unable to convince Georgians to elect their handpicked candidate, they are eyeing a change in state law that would let Perdue pack the court with two new justices of his own choosing.
According to Shannon Goessling, executive director of the conservative Southeastern Legal Foundation, that's just part of the "judicial reforms" now under consideration. She has been asked by Republican legislative leaders and national legal groups — "I'm not at liberty to say who they are right now," she told me — to craft a whole package of proposed changes for consideration by the General Assembly.
One change would make all judicial races partisan, forcing judicial candidates to run not on their qualifications but on their party loyalties. Another would divide the state into judicial districts, so that each part of the state would get to elect its own Supreme Court justice. According to Goessling, that would produce "representative government," which is a fine concept in legislative matters but odd to say the least in a judicial setting, as if different parts of Georgia have different interpretations of the law.
A third proposal would put term limits on justices, restricting them to two six-year terms. Yet another would bar campaign donations to Supreme Court candidates from those who might appear before the court. Trial lawyers, in other words, would be forbidden to contribute.
At first glance, that last proposal sounds reasonable, but in reality it would prove disastrous to the concept of an independent judiciary.
Take Hunstein's race as an example. Trial lawyers donated most of the money to her campaign, with a maximum contribution of $5,000. Since those contributions came from lawyers of all types, representing all kinds of clients, it's hard to argue that they were trying to produce biased justice. If corporate lawyers donated, so did plaintiffs' lawyers who might be suing those corporations.
However, the proposed ban on trial lawyer contributions would do nothing to bar the $1.3 million contributed to the "independent" campaign against Hunstein by a group formed by the National Association of Manufacturers. State Farm Insurance contributed $50,000 to beat Hunstein, the Georgia Medical Association contributed $100,000, and DaimlerChrysler contributed $50,000, and it would do nothing about those either.
To their credit, most Georgia voters saw through that effort to deny them justice in their own courts. If the GOP really tries this "reform," voters will see through that as well.
Jay Bookman is the deputy editorial page editor.
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New Rules Are Set For Federal Courts On Electronic Data [There is no link to this article. This is the entire article.]
By NATHAN KOPPEL, The Wall Street Journal
November 27, 2006
Federal courts are officially entering the electronic age. New procedural rules are scheduled to take effect Friday requiring litigants in federal court to provide adversaries with relevant "electronically stored information."
The rules don't specify what types of electronic information are fair game. But lawyers say they likely will include emails, electronic documents and spreadsheets. Many federal judges have already required electronic evidence to be produced, but the new rules will leave no room for doubt.
The changes "may serve as a wake-up call for some companies that haven't been in a case where electronic [evidence] has been produced," says Helen Bergman Moure, an attorney in the document analysis technology group at Seattle law firm Preston Gates & Ellis LLP. The rules govern only federal cases and leave penalty decisions to judges.
State judges, too, have required litigants to produce electronic documents -- and imposed stiff penalties for not complying. Last year, a Florida judge ruled that Morgan Stanley was liable for fraud, in part for failing to turn over some email evidence in a suit brought by financier Ronald Perelman. Following a jury verdict, the judge awarded Mr. Perelman $1.58 billion in damages. Morgan Stanley, which has appealed, declined to comment.
One change in the federal rules is a provision requiring parties to meet within the first 100 days of a suit to discuss electronic-evidence issues.
"Lawyers will now have to know about their clients' computer architecture: How do they store their data? How do their computer systems operate? This is not something they teach in law school," says Alvin Lindsay, a partner with Hogan & Hartson LLP who lectures frequently on the role of technology in litigation.
A "safe-harbor" provision in the rules says parties won't be penalized in most cases for not producing data lost as a result of "routine, good faith" business operations. But an explanatory note says litigants may be required to prevent potential evidence from being deleted.
The emergence of electronic evidence has helped to fuel a cottage industry of consulting firms that help companies devise record-retention policies and comply with legal standards for producing electronic evidence.
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Maryland Court to Launch Webcasting Plan
The Associated Press
November 28, 2006
Maryland 's highest court is launching a project for live Webcasting of its sessions, hoping to be ready in time to broadcast arguments set for Dec. 4 in a high-profile case involving gay marriage.
The first Webcast is tentatively scheduled for Thursday, giving the court a little time to solve problems that might develop before the gay marriage case is argued next week. The state is asking the high court to overturn a circuit court ruling that the Maryland law defining marriage as between one man and one woman is unconstitutional.
"It's all part of this outreach thing," Chief Judge Robert M. Bell of the Court of Appeals told The (Baltimore) Sun. "Other courts have done it. I don't see why we shouldn't do it."
The Court of Appeals and the Court of Special Appeals, the state's second highest court, allow news organizations to record hearings and to take still and television photographs. State law prohibits cameras and recorders in lower courts in criminal cases, and allows them to be used in civil cases only with the approval of both parties.
Bell has been a proponent of opening up Maryland courts to make them more accessible to the public. About half of the appellate state courts in the nation allow coverage of hearings on the Web or on cable channels.
Proponents say allowing cameras and recorders in court rooms helps give citizens a better idea of how the legal system works.
"The Court of Appeals providing greater access to its proceedings is a good thing," Donald F. Norris, a public policy professor at the University of Maryland, Baltimore County, said.
Marylanders who take the time to check out Webcasts will find less than scintillating viewing in what is usually a dry appellate process. The proceedings follow a rigid structure and are usually restricted to two hours or less. There are no witnesses. Opposing lawyers are given a set amount of time to make their arguments with flashing lights telling them when it is time to sit down.
Occasionally, the proceedings liven-up when the seven crimson-robed judges interrupt lawyers to probe perceived weaknesses in their arguments, but generally the cases involve dry discussions about legal precedents.
"I don't think it will ever break the Nielsen ratings," said Carmen M. Shepard, a former assistant attorney general now in private practice who has argued a dozen cases in the Court of Appeals. "But I think it says something positive about our legal system to say that the highest court in our state is inviting the public to see how it works and watch."
Opponents of televised court proceedings argue that some lawyers will want to grandstand for the cameras, but Bell said he does not think that will happen, noting cameras have not affected previous hearings where they were allowed in the courtroom.
Craig Waters, spokesman for the Florida Supreme Court, said an estimated 50 million people watched part or all of the arguments before that court in the 2000 dispute over the presidential outcome in Florida.
Maryland Court of Appeals cases involving issues such as gay marriage and the death penalty might attract an audience, although it's doubtful few people would want to watch arguments about whether a state agency followed its own regulations, said William Reynolds, who teaches Internet law at the University of Maryland.
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Nonpartisan vote good argument [Editorial]
November 21, 2006
When Sue Bell Cobb takes office as Alabama 's chief justice, she will not lack for work. In addition to the caseload of the Supreme Court, the chief justice also has administrative responsibilities for the state's court system.
But Cobb, who doesn't lack for energy either, also proposes to push the Legislature to make a significant change in the way Alabama chooses judges. That could be the most lasting achievement of her tenure as chief justice.
Cobb is urging an end to the partisan election of judges, something the Advertiser has supported for years. Judges would still be chosen by the voters, but would not run under party banners.
At the most basic level, this makes a lot of sense. There isn't Republican law or Democratic law. There isn't Republican justice or Democratic justice.
Judges should always be seen as impartial, and partisan elections, especially the inordinately costly ones Alabama has seen in recent years, plainly do not foster that perception.
The differences between a judicial office and an office in the legislative or executive branches of government are so great that nonpartisan elections are easily justifiable. Judges don't have constituencies, but instead should be devoted to the honest application and interpretation of the law in each case that comes before them.
When judges run under party banners, they inevitably receive some stain of partisanship when lumped together with the candidates for other offices on the tickets. It doesn't have to be this way.
In an interview with The Associated Press, Cobb said she is still developing a proposal, but would favor using the June primary elections to hold retention elections for incumbent judges. Voters would decide whether they wished to retain an incumbent. If a majority votes to do that, the incumbent would be granted another term. If not, a nonpartisan election would be held in the November general election to fill the judgeship.
This is hardly some radical idea. Most states don't have partisan elections for judges; Alabama is one of only seven to do so.
Nonpartisan elections also would help curb the cost of judicial elections. Once all the campaign finance reports are in, the race Cobb won against incumbent Chief Justice Drayton Nabers will probably rank as the most expensive in the country this year and the second most expensive in history, according to the Justice At Stake Campaign, a nonpartisan organization that monitors spending in judicial races. That is not a distinction Alabama should want.
As chief justice, Cobb will have a prominent platform from which to push for nonpartisan judicial elections. A big part of her challenge will be educating Alabamians about the proposed process and its benefits. This is an important reform, and we hope the voters are prepared to listen.
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Want fairness? [Op-ed]
The Birmingham News, November 19, 2006
J. SCOTT VOWELL
As an Alabama judge, I am embarrassed by the recent judicial elections. We must change the way we select our judges. Now, before the mud is dry, is a good time to start.
All Alabama state court judges in both the appellate and trial courts are elected for six-year terms in partisan political races. A judicial candidate must first win the nomination of one of the political parties and then win in a general election. Alabama is one of the last states to select judges in this manner.
We want our judges to decide cases based upon the law and the facts. We do not want judges who decide disputes based on politics. Why should we select them because of their politics? Most voters have no way of knowing which judicial candidates are best qualified for the job. The curious voter can learn something about the candidates from bar association polls, attorneys' endorsements and newspaper recommendations. Some voters learn about the candidates from expensive political advertising, but many just vote a straight party ticket, regardless of the candidates' qualifications.
Alabama spends far more money on judicial elections than any other state. During this 2006 campaign alone, it was reported that Alabama Supreme Court candidates raised more than $11.5 million. These campaign funds come primarily from lawyers and special-interest groups who have an interest in the outcome of litigation that will come before these same judicial candidates when they become judges. This hardly promotes the public's confidence in the fairness of the courts.
From my many years of experience as a lawyer and a judge, I am convinced most judges decide cases based on the law and the facts and are not improperly influenced by politics. I know that many readers will find that hard to believe, because it just doesn't look right for a judge to decide a case in which one side is a political supporter and the other is not. Under the Canons of Judicial Ethics, judges are required to avoid even the appearance of impropriety.
The political parties contribute to the problem because their only real interest in judicial races is winning elections. The parties also have a financial interest in collecting the substantial amount of qualifying fees judicial candidates must pay to run in the primaries.
Every group that has studied the selection of judges in our state has come to the conclusion a change needs to be made, and some have suggested nonpartisan elections. This means judicial candidates would be on the ballot without a party label. That would be an improvement, but simply doing away with party labels for judicial candidates will not solve the problem. We need to select judges because of their merit.
There are many possible methods of judicial selection, but in some Alabama counties there is already in place a method used to fill vacancies occurring during a judge's term of office. It works very well and can form the basis for a new system of judicial selection.
In Birmingham, we have a five person, nonpartisan, voluntary Judicial Commission composed of a circuit judge elected by the other circuit judges, two lawyers elected by the Birmingham Bar Association, and two nonlawyers appointed by the Jefferson County Legislative Delegation. Applicants for a vacant judgeship submit their names to the commission, which investigates the applicants. The commission selects the three best candidates and submits the names to the governor, who must appoint one of the three to fill the unexpired term. The new judge serves until the next general election, at which time he or she must run for office.
This same method could be used statewide by establishing a judicial commission in each circuit for the selection of trial judges and a statewide commission for the selection of appellate judges. In order for voters to have the final word, there would be a retention election so that voters would vote either "yes" or "no" as to whether the new judge is qualified for the job. If the vote is no, then a new judge would be selected and the process started over. Such confidence or retention votes could be held periodically.
Such changes cannot be made if they are opposed by the political parties. Republicans have won most statewide judicial races in the past few years, so they have not wanted to change. Before that, the Democrats opposed such change. In the 2006 election, there were winners in both parties. Now, neither party has a monopoly on the Alabama judiciary. It is time for both parties to rise above their self-interest and focus on improving the administration of justice in our state.
Without change, we will continue to see mud-slinging judicial political campaigns that diminish the public's confidence in our judiciary. Even worse, the brightest and best of the legal profession will not be willing to offer themselves for this great public service, because they will not subject themselves and their families to the meanness of partisan elections.
The time is ripe for a needed change in this aspect of our government. We need to restore the confidence of the people in our judicial system.
J. Scott Vowell is presiding judge of the Tenth Judicial Circuit of Alabama.
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AP Interview: New chief justice wants nonpartisan elections
PHILLIP RAWLS, The Associated Press
November 19, 2006
MONTGOMERY, Ala. - Sue Bell Cobb, elected Alabama's first female chief justice after what was likely the second most expensive judicial race in American history, is determined to change more about Alabama's courts than the gender of the top judge.
Cobb said she hopes to use her six-year term to institute nonpartisan elections for judges in Alabama.
"It wouldn't fix all the problems by any stretch, but it would at least take the issue of party out of it," she said in an interview.
Cobb polled 51.5 percent of the vote against Republican incumbent Drayton Nabers in the general election Nov. 7. When she takes office on Jan. 16, it won't be the first time she has helped women break new ground.
When she became a district judge in Evergreen in November 1981, she was the 11th woman to be a trial court judge in Alabama.
In 1994, she became the first woman elected to the Alabama Court of Criminal Appeals, although one woman had served earlier through appointment. Two years after her election, two more women were elected to the Court of Criminal Appeals, and Alabama became one of only two states in the nation where women held a majority of the seats on an intermediate appellate court.
Since the election, Cobb has received calls and letters from women congratulating her on being elected Alabama's first female chief justice. Women at the Bradley, Arant, Rose and White law firm in Birmingham are planning a reception Jan. 11 to recognize her achievement.
Organizer Rusha Smith said Cobb has managed a legal career and a family while rising to a position where she will not only write opinions, she will oversee the financial management of a court system that's the equivalent of a large corporation.
"She's a role model to all women - not only those who practice law," Smith said.
Cobb downplays her achievement in becoming Alabama's top judge.
"I'm convinced that for me, it is not as significant as it is for other people and for what it says to young girls and young women," she said.
And just to make sure she doesn't get the big head about being the first female chief justice, she can always rely on someone who appeared in her campaign ads: her 10-year-old daughter, Caitlin.
Cobb said her daughter has made it clear she's getting tired of people telling her about her mother making history. "I've been a judge her whole life. It's not a big deal to her," Cobb said with a laugh.
One thing that was a big deal in the race for chief justice was the amount of money spent by the candidates.
Through late October, Cobb had reported raising $2.4 million and Nabers had pulled in $4 million, including his primary race. Republican Justice Tom Parker reported $311,399 in contributions in his losing primary race against Nabers.
Cobb, Nabers and Parker won't have to report their final totals until January, but the Justice at Stake Campaign, a nonpartisan group that tracks spending in judicial races, said the race appears to be the most expensive court race in America in 2006 and the second most expensive in the nation's history.
The record of $9.3 million was set in an Illinois contest in 2004, spokesman Jesse Rutledge said.
Cobbs call the cost of the Alabama campaign "indecent."
"It certainly did not improve the image of the courts. I want us to have a method for selecting judges that improves the public's perception of independence and impartiality of the courts," she said.
For the Democratic Party, Cobb will be the first member of the party to serve on the Supreme Court since Douglas Johnstone retired in January 2005. Obviously, some Democrats would like to see her become the first of several Democrats on the court, but Cobb said the best way to improve the public's perception is to do away with party labels.
Most states don't put party labels on their appellate court judges. Alabama is one of seven that have partisan elections for their highest court. Thirty-four states use appointive systems, and the remaining use a variety of methods, including nonpartisan elections.
Cobb said she is still formulating what she would like to see happen, but she wants the plan to cover county district and circuit judges and all state appellate courts.
She likes the idea of using the primary election in June for incumbent judges to stand for retention. If a majority of voters wanted to retain a judge, then the incumbent would get a new term. If a majority wanted to get rid of an incumbent, then there would be a nonpartisan race on the general election ballot in November to elect a new judge.
"The issue is getting it through the Legislature. I believe the public would support it," she said.
Similar efforts in the past have drawn opposition from the Republican Party, whose members hold 18 of the 19 seats on Alabama's appellate courts.
Cobb's idea for selecting judges is different from one pushed by some leaders of the Alabama State Bar. Their plan is limited to the state appellate courts. It calls a committee to recommend judicial candidates to the governor, who would make an appointment. Then in six years, voters would decide whether to retain the judge or have the governor appoint a new one.
Cobb doesn't think that an appointment plan will win public support.
"The people of Alabama are opposed, as am I, to the appointment of judges," she said.
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State Bars Push Back on Privilege Waivers
By Sheri Qualters, The National Law Journal
State bar associations are jumping into the roiling debate over the attorney-client privilege-waiver issue triggered by the U.S. Department of Justice's Thompson Memorandum.
Several states have recently convened task forces to fight the 2003 directive penned by former Deputy Attorney General Larry Thompson, which, among other things, instructs prosecutors to trade leniency for waivers of the attorney-client privilege during corporate investigations.
The states are lobbying the federal government to change Justice Department policies and practices that give incentives to corporate defendants who waive attorney-client privilege and pressure companies not to pay the legal fees of current or former employees facing corporate criminal investigations. In some cases, states are mulling changes to their own rules of professional conduct to sidestep Thompson-style waivers.
New task forces in Florida, Illinois and Michigan join ongoing efforts in Arkansas, Maryland, New York and Boston.
'CULTURE OF WAIVER'
Samuel Damren, a litigator in the Detroit office of Dykema Gossett, heads Michigan's task force. He hopes that his group will recommend changing the state's rules of professional conduct to prohibit government attorneys practicing in Michigan from requesting that companies waive their attorney-client privilege to prove they are cooperating with the government probe.
Damren said his approach is part of the legal community's pushback against the perceived "culture of waiver" that many attorneys worry is eroding attorney-client privilege. "If the prosecutors and regulators aren't going to change the rules, it's not just in their hands, it's in the hands of the bar," Damren said.
An Arkansas Bar Association task force is recommending that its House of Delegates ask the Arkansas Supreme Court to adopt rule changes allowing for selective waiver, or disclosure of some information to a government agency without revoking the attorney-client privilege, and barring discovery of attorney communications with experts.
The 72,000-member New York State Bar Association is informally discussing whether to push for changes to the rules of professional conduct to curtail waivers. But state Bar President Mark H. Alcott said he's unsure if such a rule would work in practice, since the client ultimately has the right to waive and could succumb to pressure from the government.
The Bar's chief strategy is lobbying the federal government to change policies that pressure companies to waive attorney-client privilege, said Alcott, a senior litigation partner with New York's Paul, Weiss, Rifkind, Wharton & Garrison.
Florida Bar President Henry M. Coxe III of Bedell, Dittmar, DeVault, Pillans & Coxe in Jacksonville was inspired by hearing about the New York Bar efforts at an American Bar Association gathering. "It struck me that Florida wasn't in that mix and we should be," he said.
The Florida Bar task force, which was formed in September, is looking into the extent of compelled or coerced waivers in Florida, and the circumstances under which waivers were granted. But Coxe said it's too early to project what recommendations might emerge.
A special committee of the Illinois State Bar Association met for the first time on Oct. 30, in response to the American Bar Association's appeal to state bar groups to examine the issue, said Chairman J. Timothy Eaton of Chicago's Shefsky & Froelich.
The committee has yet to decide on its scope, but it will inspect the waiver-seeking activities of the state's attorney general and its impact on the local bar. Recommending that the Illinois Supreme Court change the rules of professional conduct is another possibility, Eaton said.
In June, the Boston Bar Association penned a letter to its local U.S. Attorney about the office's written waiver-review process. The bar association requested that a supervisor in the U.S. Attorney's Office approve all prosecutor requests for waiver of the corporate attorney-client privilege or work-product protection and that the office only grant limited waivers.
A company's willingness to cooperate in investigations is not a "litmus test" and is only one of several factors the Justice Department considers when charging a company, said DOJ spokesman Brian Roehrkasse. The DOJ is still "reviewing the specific concerns and suggestions" of bar associations and other groups, Roehrkasse said.
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Special Interest Cash Hits a Wall in Judicial Elections
By Amanda Bronstad, The National Law Journal
Special interest groups gave millions of dollars to judicial candidates in the month before last week's elections, but failed to defeat their opponents in some of the tightest races in the country.
In the most expensive race, various business groups were unable to win the retention of the incumbent chief justice of the Alabama Supreme Court. A former appellate judge defeated the Republican candidate to become the sole Democrat on the state high court.
In Georgia, an affiliate of the National Association of Manufacturers bankrolled a series of last-ditch television ads for a state Supreme Court candidate who lost after being accused of threatening to kill his sister.
In Illinois, special interest groups sparked one of the most expensive appellate court races in U.S. history. And a Supreme Court race in Kentucky pitting an anti-abortion candidate against a self-declared impartial judge dealt a setback for judicial First Amendment advocates.
"Business groups continue to spend a lot of money in a number of these campaigns," said Jesse Rutledge, communications director of the Justice at Stake Campaign, a bipartisan group in Washington that tracks judicial elections. But unlike in past election cycles, "this year, their investments, it appears, did not pay off."
Among the five Alabama Supreme Court races, Sue Bell Cobb, the challenger for chief justice, was the only Democrat to win. Campaigning as a churchgoing mother, Cobb raised more than $1.85 million in cash contributions from several political action committees (PACs) and the state Democratic Executive Committee. Chief Justice Drayton Nabers Jr., who boasted an anti-abortion stance in TV ads, raised $3.9 million in cash contributions from state tort reform PACs. The American Taxpayers Alliance, a group that has received funds from the U.S. Chamber of Commerce, paid for Nabers' ads in the primaries.
Although Nabers outspent her, Cobb acknowledged how much she raised in contributions. "We were very cognizant of the fact that we had to have sufficient resources to prevail," she said. "Do I think that's an attractive part of the process? No, I do not. Do I want that to change? Yes, I do."
Georgia hosted one of the most negative judicial campaigns in U.S. history as special interest groups waded into the race during its final weeks.
Mike Wiggins, an attorney for the Bush administration, raised about $275,000 for a Supreme Court seat. But the Safety and Prosperity Coalition, an independent committee that received contributions from the American Justice Partnership, an affiliate of the National Association of Manufacturers, paid for several ads accusing incumbent Justice Carol Hunstein of ignoring case law and being soft on crime, according to Justice at Stake.
Dan Pero, president of the American Justice Partnership, said he feared Hunstein would legislate from the bench.
In response, Hunstein launched an ad accusing Wiggins of having been sued by his mother for money and allegedly threatening to kill his sister when she was eight months pregnant. Hunstein is the first judicial candidate in Georgia to raise nearly $1 million in a campaign, mostly from trial lawyers.
Illinois faced a record-breaking race for 5th Appellate Court, home to Madison County, nationally known for its plaintiff-friendly verdicts. Saline County Presiding Judge Bruce Stewart, a Democrat, defeated Republican incumbent Steve McGlynn, who raised $2.1 million, mostly in last-minute contributions from the American Tort Reform Association, the Illinois Republican Party and the American Justice Partnership. Stewart, with about $900,000, received support from labor unions and the Democratic Party of Illinois.
Pero of the American Justice Partnership said, "this was not particularly a good year in a lot of parts of the country to have an 'R' by your name." But he predicted more groups would help finance future appellate races.
While not the most expensive, the race for a Kentucky Supreme Court seat exemplified the debate over whether judicial candidates should make political or legal statements. Pledging impartiality, Circuit Judge Bill Cunningham defeated Rick Johnson, a Court of Appeals judge who campaigned against abortion.
"The candidates who take a more aggressive First Amendment approach are consistently meeting with failure at the ballot box," Rutledge said.
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Sitting ducks on the bench
Fort Wayne News Sentinel (Indiana)
By Linda P. Campbell, McClatchy Newspapers
November 17, 2006
As a Supreme Court justice, Sandra Day O'Connor exasperated critics by balancing on a reed-thin beam without planting her feet firmly on either side.
But in retirement, she doesn't equivocate in defense of judicial independence. She has crossed the country warning that "spurious" attacks on the judiciary - by politicians and other talking heads - threaten judges' doing their jobs without fear or favor.
When federal appellate Judge Danny Boggs said at a recent legal conference at the Las Colinas development between Dallas and Fort Worth that physical assaults aimed at judges have come mainly from "the deranged," O'Connor underscored the safety concerns.
"Every member of the Supreme Court received a wonderful package of home-baked cookies, and I don't know why, the staff decided to analyze them," she recounted. "Each one contained enough poison to kill the entire membership of the court."
She also told the audience that she wasn't prone to revisit her votes but that she's having second thoughts about a 2002 ruling in Minnesota vs. White because it "has produced a lot of very disturbing trends in state election of judges."
That 5-4 decision said states can't bar candidates for the bench from offering views on legal and politics issues. O'Connor wrote a concurrence in White to repeat misgivings about partisan election of judges that dated to her days as an Arizona state legislator.
"The State's claim that it needs to significantly restrict judges' speech in order to protect judicial impartiality is particularly troubling," she wrote. "If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges."
O'Connor might be rethinking judicial speech limits, but not her dislike of electing judges. "Dare I say it? I've not been a great admirer of the Texas scheme," she said.
She as well as everyone else at the ABA-sponsored conference knew that just three days earlier, Dallas County voters had tossed out dozens of incumbent Republican judges based on party affiliation.
Purely partisan sweeps are a natural byproduct of requiring judges to wear R's and D's on their robes. It happened in Tarrant County in the 1990s. That kind of bench-clearing inevitably pitches experienced jurists along with incompetent ones and brings in capable rookies along with some duds. Credentials become less significant than political labels, and upheaval occurs even when stability would better serve the public.
And then there's the weird way that money infects races.
Texas Supreme Court Justice Don Willett, for instance, took in almost $800,000 in campaign donations just for the general election, on top of the more than $870,000 he collected for the Republican primary. Both times, he faced opponents who lacked his wealth of influential backers.
State District Judge William E. "Bill" Moody of El Paso, the Democrat who walked across the state to try to unseat Willett, raised more than $178,000 for the general election. Once upon a time, that was big money.
Willett's war chest bulged thanks largely to lawyers, lobbyists, home builders and other business types, which might cause your average person to wonder what they want for their investment.
On the other hand, what did the $814,000-plus that Willett spent in the general election buy in electoral influence? Not quite 6 percentage points: Willett got 50.93 percent of the vote statewide, Moody 45 percent and Libertarian Wade Wilson 4.07 percent, according to the Texas secretary of state.
Meanwhile, Sharon Keller - presiding judge of the Texas Court of Criminal Appeals - received 56.64 percent of the vote despite spending nothing on the general election, according to campaign finance reports. (She spent about $19,000 to beat fellow Judge Tom Price in the GOP primary.) Democrat J.R. Molina, a Fort Worth lawyer, reported spending almost $10,000 but ran a low-key campaign and still got 43.36 percent against Keller.
I suppose we should be thankful that Texas doesn't mirror states highlighted by the Brennan Center for Justice at the NYU School of Law.
In Georgia, for instance, one TV ad claimed that a sitting justice "overrruled a jury to free a savage rapist." Her opponent was said to have been "sued by his own mother for taking her money" and accused of threatening to kill his pregnant sister.
In Nevada, an interest group said an incumbent "ignored your vote and violated the law." Her opponent was said to have accepted "thousands in contributions from two convicted topless club owners."
And in Ohio, an interest group's ad for a Supreme Court candidate touted him as "a man of principle who led the fight against liberal activists to preserve Ohio's motto, `With God, all things are possible.'"
So much for real qualifications and the subtleties of, say, following the law.
"If I could wave a magic wand, it would be to enable the states that want to do it to work toward initial appointment and maybe a retention scheme," O'Connor said.
Appointment-retention systems pose their own challenges. Some politics still would come into play, even with nominating commissions. Retention elections could focus on unpopular rulings.
But Texas already operates a version of appointment-retention: Eight of the nine elected Texas Supreme Court justices were appointed to at least one of the judgeships they've held in their careers.
Can someone please wave that magic wand when the Legislature meets next year?
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Courting progress – [Editorial]
The Birmingham News
Saturday, November 11, 2006
THE ISSUE: Alabama has a new chief justice and a fresh opportunity to make meaningful changes in our court system, including the way we select judges.
Alabama voters elected Sue Bell Cobb to be their chief justice, a position that gives her not only a vote on Supreme Court decisions but a big voice in the way courts across the state are run.
Although this editorial page endorsed her opponent for the job, we believe Cobb will be a fine chief justice. Her experience and her passion make her a good fit, and she has pledged to use the position to address some of the fundamental challenges facing our justice system.
There are plenty of problems that need Cobb's attention, including the crucial matter of providing better legal defense to poor people charged with crimes. Even people facing the death penalty can't count on getting a decent lawyer. The result is not just unjust trials, but often expensive retrials and painful reruns for families of victims. Cobb can't fix this problem alone, but she can and should lead the charge.
The same is true of much-needed changes in the way Alabama handles allegations about improper behavior by judges. Under former Chief Justice Roy Moore, the Supreme Court defanged the entities charged with investigating complaints about judges. The court required the Judicial Inquiry Commission to promptly notify accused judges about any complaints, for instance, and to furnish them with details of the investigation as it proceeds.
These are protections far greater than those required for defendants who appear in our courts, and they have made it far less likely for complaints to be filed and investigated. Cobb hopes to put Alabama back in the mainstream when it comes to investigating and punishing wayward judges, and her fellow justices should line up behind her.
A more delicate (but no less important) issue is the urgent need to change the way Alabama selects judges. To see why, look no farther than the contest between Cobb and incumbent Chief Justice Drayton Nabers Jr.
Here, voters were forced to witness two good candidates, both of them fundamentally decent people, engage in campaigns that were far beneath them. These disappointing campaigns together cost $6 million - money that came largely from interest groups and entities wanting to shape the courts to their advantage - and could only serve to lower Alabamians' opinion of judges everywhere.
Judges shouldn't be selected in partisan elections. They should be appointed through a system that measures their experience and qualifications, and then be held accountable through retention elections that allow them to run on their record alone.
This is an idea that was popular with Republicans when Democrats were in power and has gained steam with Democrats as the pendulum swung the GOP's way. (Cobb is, once again, the only Democrat on the state appeals courts.) It's an idea leaders of the Alabama State Bar have pushed year after year. It's an idea Cobb should embrace. And it's an idea Republicans, having gotten a reality check with Nabers' defeat, ought to push, as well.
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Judicial independence remains under fire
By MATT APUZZO Associated Press Writer
November 11, 2006
WASHINGTON — Efforts to curb judges' independence suffered some Election Day setbacks, but supporters pledged to keep fighting against a judiciary they say has lost touch with America.
The problem, critics say, is that judges too often make laws rather than interpret them. On Tuesday's ballots, the possible solutions ranged from term limits to prison time. All failed, most by wide margins.
Judges say such efforts threaten their autonomy and some legal scholars see them as part of an organized campaign to persuade voters that judges, like legislators, governors and presidents, are policymakers who need political oversight.
The frontier of the movement was South Dakota, where voters considered allowing judges to face lawsuits or jail time for their opinions.
"People are not going to allow judges to take over this county," said Ron Branson, who conceived the South Dakota measure and is promoting it nationwide. "They talk about judicial independence but they're getting involved in things they have no power to order."
Nine out of 10 voters rejected the idea but Branson predicted it would take hold in one of several states with active chapters in the "Jail4Judges" campaign.
In Montana, three Republican legislators backed a proposal that would have allowed judges to face recall for any reason. The measure was voted upon but the results weren't counted because judges found fraud and deception in the petition drive. Supporters of the measure said it was just another arbitrary ruling by the courts.
"We're not off-the-wall people. We're three leadership people in the Montana House of Representatives," said state Rep. Ed Butcher, who said they were trying to send a message that jurists "have to be judges rather than legislators."
It's a familiar refrain in these debates. Critics, frequently conservatives, have used the phrase "activist judges" to refer to jurists they say are legislating from the bench.
President Bush has used the term to criticize opinions such as the court-ordered legalization of gay marriage in Massachusetts.
The critique, however, is not new. Theodore Roosevelt proposed recalling judges who had grown "out of touch with social needs" and Franklin D. Roosevelt contended the Supreme Court was acting as a policymaking body. "We must take action to save the Constitution from the court," he said.
But anti-court sentiment is growing. The Justice at Stake Campaign, an effort to keep the judiciary independent, called the 2006 election "the most threatening election yet for fair and impartial courts."
"I'm increasingly concerned about the current climate of challenge to judicial independence," retired Supreme Court Justice Sandra Day O'Connor recently told a gathering of state judges. "Unhappiness with judges today is at a very intense level."
That unhappiness was clear in Oregon, where people wrote impassioned statements supporting a measure requiring that appellate judges be selected from diverse areas of the state. The courts currently are dominated by city judges who are reinterpreting the state constitution, supporters of the measure said.
"The Oregon Supreme Court has substantially expanded the rights of criminals, limited the rights of property owners and limited the initiative process," victims' rights advocate Steve Doell wrote for a voter's guide. "Many of the changes instituted by the court are more properly the responsibility of the legislature or of the people."
A similar argument was used to support a Colorado proposal that would have imposed 10-year term limits on judges. Both measures failed at the polls.
Such proposals reflect a political strategy, said University of Pennsylvania law professor Stephen B. Burbank. If voters are persuaded to see judges as representing constituents or policies rather than simply interpreting the law, it will be easier to pass laws limiting their independence, he said.
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Bar association looks at ways of keeping older lawyers around
By MARK JOHNSON, Associated Press Writer
November 12, 2006
ALBANY, N.Y. -- Every day, former state Supreme Court Judge Donald Mark runs five miles a day and lifts weights for an hour.
The 80-year-old maintains a legal practice and teaches criminal justice two days a week at the Rochester of Institute of Technology. But because of New York state laws, Mark, to his chagrin, was forced from the bench four years ago because of his age.
"It's very arbitrary," said Mark, of Penfield. "It doesn't matter what kind of shape the individual is in, he has to retire."
With people living longer and healthier lives, some in the legal community say many older lawyers are unfairly being forced into retirement. The practice costs the legal profession and those it represents experienced jurists and litigators who would prefer to continue their lifelong professions.
To that end, the New York State Bar Association has begun looking at the issues facing "gray lawyers" and is looking at helping them remain active in the law.
The issue is not limited to New York.
In 2005, the federal Equal Employment Opportunity Commission filed a lawsuit in Chicago alleging that Sidley Austin Brown & Wood, a large international law firm, violated federal law when it forced older lawyers to retire. The firm has denied any wrongdoing.
Dozens of states have mandatory retirement ages for judges set between 70 and 75, according to information provided by the National Conference of State Legislatures.
Lawmakers in Hawaii this year considered two constitutional amendments concerning mandatory retirement ages for judges. One would have repealed the existing amendment and another would have raised the age to 80 from 70, according to the NCSL.
New Jersey was also considering legislation to raise the mandatory retirement age for its judges to 75 from 70.
Federal judges do not face mandatory retirement.
For judges on New York's highest court, the Court of Appeals, mandatory retirement comes at 70. Supreme Court and appellate division judges also have mandatory retirement at 70, but they can apply to be reinstated for up to three, two-year terms. The ages are set in the state constitution.
"The rules are out of date, archaic and force out some very highly qualified people," said state Bar Association President Mark Alcott. "It's a shame and it's time we take a very hard look to try to change this policy."
Alcott said many large law firms also have mandatory retirement ages.
Luke Bierman, a fellow in government law and policy at Albany Law School, said many firms have mandatory retirement policies to help younger lawyers move higher in their firms and keep the costs of keeping high-earning older lawyers down.
The bar association is hoping to create new opportunities for older lawyers in pro bono work _ or service without a fee. The work could keep older lawyers involved in the legal profession, even if they have been forced out of their firms or judicial positions.
"We need to create more opportunities for older lawyers and allow them to use their vast knowledge of the law, accumulated through a lifetime of practice," Alcott said. "As our population ages, many talented, vigorous lawyers are facing new challenges that have not been fully explored or vetted by the legal community."
Former Court of Appeals Judge Stewart Hancock, 83, was forced off the bench in 1993, but remains active in the law, handling complex commercial arbitration cases and teaching at Syracuse University's law school.
Hancock said that while he would have stayed on the court longer had he been allowed to, his mandatory retirement also provided him with new opportunities.
"In my case, I've had a whole new career," Hancock said. "Had I stayed on until I was 74 or 76, I'm not sure I would have made the transition as effectively as I have been able to do."
Republican New York state Sen. John DeFrancisco, chairman of the Senate Judiciary Committee, said the issue of keeping judges on the bench longer is worth a discussion.
"There are two parts to it," he said. "At what point do you say it's time to bring in some new blood? But there's no reason many judges can't go beyond 70."
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Voters protect the judiciary [Editorial]
The Denver Post, 11/09/2006
Despite a resounding repudiation by Colorado voters, the author of the Amendment 40 assault on judicial independence has vowed he'll be back in 2008 to again try to impose term limits on judges.
John Andrews' election-night pledge surely is exasperating to the many voices who worked to expose the idiocy of this idea.
We can only hope that the out-of-state ideologues and donors who supported his unpopular effort will lose interest.
Andrews has been coy about who funded his campaign to apply 10-year term limits to the Colorado Supreme Court and the Court of Appeals. Much of the $828,000 came from a Golden-based non-profit called Colorado At Its Best. The group isn't required to reveal its donors. At least some money came from Howard Rich, a wealthy New York real estate investor who has poured funds into government-limiting causes around the country.
No state imposes term limits on its judiciary, and it's ironic that a conservative such as Andrews would seek such radical change. The Founding Fathers understood the need for a judiciary free from partisan influences and set up protections from political institutions and interest groups.
In Colorado, voters resoundingly defeated the effort to rewrite the state constitution and have a right to know exactly who is behind the effort. That Andrews won't say suggests he knows voters won't be standing up to cheer. The measure would have stripped the Colorado Supreme Court of five of seven members appointed by Democratic Gov. Roy Romer, and seven members of the state Court of Appeals. Andrews is a Republican, but that isn't pertinent in this case - his effort was opposed by every living GOP governor, every major newspaper in the state, as well as the Republican attorney general and the business community.
Pathetically, Amendment 40 supporters tried to personalize their quest by urging voters to reject the retention of Appeals Judge Jose D.L. Marquez. The cynical nature of this ploy wasn't lost on voters, who retained Marquez by a landslide margin.
Voters elsewhere stood up to defend the judiciary too. In South Dakota, 89 percent rejected a nutty measure that would have let people seek criminal charges or file lawsuits against judges they thought violated their rights. In Oregon, voters rejected an unwarranted proposal that would have forced judges to live in certain geographic areas and would have strengthened the hand of special interests.
Efforts to undermine the judiciary seem to be a plaything for wealthy ideologues who see the petition process as easy pickings. The will of the people must really make them mad, whoever they are.
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ABA Study Shows Minority Female Lawyers Being Excluded and Harassed
Susan Hansen, The Minority Law Journal
Only a wild-eyed optimist would have expected the American Bar Association's new study on women of color in law firms to produce a headline like this: "Law Firms Make Miraculous Strides on Inclusiveness!" Or this: "Law Firm Gender and Color Gap Finally Closed!"
Paulette Brown and Arin Reeves, the ABA study's co-chairs, certainly weren't counting on such cheery news when they got started on the project three years ago. A good thing, too, since the results would have left them sorely disappointed.
One major impetus for the study was a 1999 report from NALP (formerly the National Association for Law Placement) showing that 100 percent of female minority lawyers left their jobs in private law firms within eight years of being hired. The ABA Commission on Women in the Profession had asked Brown and Reeves to get to the bottom of why so many African-American, Hispanic, Native American and Asian-American women wanted out.
Reeves, a consultant with the Chicago-based Athens Group, Inc., helps law firms plan and implement diversity programs. Brown is a partner with Boston-based Edwards Angell Palmer & Dodge. Both were well aware that law firms aren't always the most inclusive places.
Brown and Reeves were pretty sure the study would find problems. But they didn't imagine that those problems would still loom so large.
"I thought the numbers would not be good. I didn't know they'd be so startling," says Brown of the new ABA report, "Visible Invisibility: Women of Color in Law Firms."
Of women attorneys of color, 44 percent reported being passed over for desirable assignments, compared with 39 percent of white women, 25 percent of men of color and only 2 percent of white men. (The study covered law firms of 25 lawyers or more; more than 1,000 lawyers responded to the online questionnaire.)
Nearly two thirds of those women -- 62 percent -- said that they had been excluded from formal and informal networking opportunities, compared with 4 percent of white men.
Almost half of women of color -- 49 percent -- reported being subjected to demeaning comments or other types of harassment at their firms.
The examples of such harassment that respondents described in written comments and follow-up focus groups would make even the most vocal critic of political correctness cringe.
One Native American lawyer, for instance, recalled being asked where her tomahawk was and whether she would mind being called Pocahontas. A Korean associate recounted that her firm's managing partner introduced her to a Korean client with the words, "She eats kimchi just like you." Soon after, the managing partner left a message on her voicemail in which he tried to sound like an Asian speaker. Another Asian-American woman reported hearing herself described as "a dragon lady" at her firm, while an African-American associate said that she was labeled "an angry black woman."
To Reeves, the sheer number of minority women reporting those kinds of comments was a major surprise.
"We've sort of been in this mode where [law firms] think they've left this kind of harassment in the past," says Reeves. Unfortunately, she adds, the study shows that firms still have a lot of basic work to do to make women of color feel welcome -- such as making sure they're in compliance with anti-harassment laws.
The study did not ask whether women who reported harassing comments brought discrimination suits against their firms. But Reeves notes that women subjected to those kinds of remarks are typically reluctant to bring legal action, or even complain, out of fear of being labeled troublemakers.
If the study showed anything, Brown adds, it is that simply hiring women of color is not enough. Law firm managers also need to ensure that minority women get effective mentors and good assignments and networking opportunities so they truly feel part of their firms. While Brown says that it may be impossible to get rid of long-ingrained prejudices or stereotypes -- or "change hearts," as she puts it -- law firms can change behavior. To that end, she says firms need to set clearer goals to promote greater inclusiveness and evaluate (and compensate) partners based on their efforts to mentor or give assignments to women of color.
Brown is hoping to get that message out this fall at a series of meetings that the ABA Commission on Women in the Profession is planning for law firm managing partners in New York, Chicago, San Francisco and Washington, D.C. The goal: to get firm management to focus on the findings and recommendations of the new report.
General counsel and other in-house lawyers will also be invited, which should help ensure that managing partners take the report more seriously -- and realize that it's in their interest to create a truly inclusive workplace.
"They should care, because they made an investment in these women by hiring them in the first place," says Brown. "Why would you want someone you have chosen to hire to fail?”
CHIEF JUSTICE: Cobb becomes first woman to lead state's Supreme Court
ERIC VELASCO, The Birmingham News
November 8, 2006
Sue Bell Cobb beat incumbent Drayton Nabers Jr. Tuesday night to become the first female chief justice of the Alabama Supreme Court and bring Democratic leadership to an otherwise all-Republican court.
Nabers conceded the race at about 11 p.m., with 90 percent of the precincts reporting.
In the other three contested Supreme Court races, Republican incumbents Tom Woodall and Jacquelyn "Lyn" Stuart won their races, as did Republican candidate Glenn Murdock. Republican Justice Champ Lyons was unopposed for the Place 1 seat.
Cobb had 567,470 votes to Nabers' 516,494. She beat Nabers by almost 12,000 votes in Jefferson County, where Nabers lives.
"I am very humbled by Chief Justice Nabers' call," she said after making her victory speech to supporters. "He couldn't have been more gracious. I am honored to be elected chief justice."
The race was a choice between Nabers' 27 years of experience as an administrator and Cobb's 25-year career as a judge.
Nabers, Gov. Bob Riley's former finance director and the former chief executive officer of Protective Life Insurance Co., told voters that he had breathed new life and greater efficiency into a stagnant court system.
Cobb, who presided in most of Alabama's 67 counties during her 12½ years as a district judge before joining the state Court of Criminal Appeals, said she had the judicial experience needed.
"I wish Judge Cobb the very best," Nabers said after conceding. "I will work with her to have a smooth transition."
During her campaign, Cobb never mentioned the potential historic aspect of becoming the state's first female chief justice.
"I would be proud to be the first woman elected chief justice," she said. "But more important, I would be the first chief justice in at least 66 years with at least 25 years of judicial experience and a background as both a trial and appellate judge."
The prospect of a female chief justice resonated with hundreds of women who donated to her campaign.
Alabama's high court candidates raised and spent more money than in any of the other 14 states that had Supreme Court races this year.
Alabama candidates combined raised $11.5 million - almost four times the amount in Texas, the next-highest state. Alabama candidates also comprised four of the six candidates nationwide who raised $1 million or more, led by the $4.4 million Nabers raised and the $1.9 million Cobb raised.
Stuart was third nationally at $1.8 million and Murdock's $1.5 million placed fifth.
The chief justice race also was a battle of the television commercials, with both candidates extolling their virtues while trashing their opponent.
The two spent more than $3 million on TV ads in the final weeks of their campaigns.
Place 2: Republican incumbent Tom Woodall beat Montgomery attorney Gwendolyn Thomas Kennedy. With about 90 percent of the precincts counted, Woodall led 576,748 to 455,564. Candidates spent a combined $476,000 during the primary and general election.
Place 3: Stuart beat Russell County Circuit Judge Albert Johnson, 580,377 to 442,764, with 90 percent of precincts reporting. The candidates raised and spent a combined $1.9 million, making theirs the nation's second-most expensive judicial contest, behind the Nabers-Cobb race.
Place 4: Murdock beat Tuscaloosa County Circuit Judge John England Jr., 599,823 to 492,683. The two candidates raised a combined $1.8 million and spent $1.7 million, the fourth most-expensive judicial race in the country.
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Politics of judges [Editorial]
The Anniston Star
Is it over? Can Alabama voters again turn on their TVs without being assaulted in 30-second segments?
The political calculus requires serious men and women running for higher office to take lifetimes of serious achievement and boil them down to a few words and images. God and family. Guns and dogs. Conservatism and toughness. We all know the drill.
It's painful. Yet, the worst comes in judicial races. Court candidates act as if there is a Republican or Democratic way to sit on the bench. Judges, especially ones on Alabama's appellate courts, must be fair, prudent, even-tempered, intelligent and well-versed in the law. They either are or are not capable of sound behavior. Party has no tangible place here.
Alabama is one of a few states that selects its highest courts in the most partisan way.
It's time for something else. The state needs a new way of placing qualified men and women on its courts. What are the others doing? More importantly, what system would best serve Alabama?
The first admission to make clear is that no system is perfect. In a government run by partisans, there is no way to fully shield courts from the taint of political parties. Even the federal system with its lifetime appointments is a joint decision by one politician (a president who appoints judges) and many other politicians (senators who must confirm a nominee).
Mixing and mingling several good ideas, here's a good start on a plan Alabamians might consider before the next partisan orgy politicking begins for statewide courts.
1. Judges for appeals courts — the state Court of Criminal Appeals, Court of Civil Appeals and the Supreme Court — are appointed. Doing the nominating is a nonpartisan panel made of government appointees, members of the State Bar and other legal experts.
2. Next, the three candidates are subjected to some review process, perhaps by the Ethics Commission.
3. The governor then selects one appointee from the three candidates.
4. Once on the bench, the judge serves a four-year term.
5. At the end of four years, the judge is subject to a nonpartisan retention election. Only one name — the judge's — is on the ballot and the question is on letting him or her serve another four-year term.
5. If the voters say “no,” then the appointment process starts over. Eventually a new appointee reaches the court for a new four-year term.
There you have it. Not perfect. Subject to useful tweaking. But far superior to what we have now in regularly trying to convince voters that there is a Republican justice vs. a Democratic justice.
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Judicial Amendment Slammed Down Hard
By: DIRK LAMMERS, Associated Press Writer
November 8, 2006
SIOUX FALLS -- South Dakotans on Tuesday turned their backs on a constitutional amendment that opponents said would create chaos in the state's courthouses and the halls of local government.
With 58 percent of precincts reporting, Amendment E was failing with 90 percent opposing it and 10 percent supporting it.
It would let people seek criminal charges or file lawsuits against judges and other government officials they believe have violated their rights.
Supporters said it would apply only to judges. But opponents said it would include members of school boards, county commissions and city councils because those officials sometimes make decisions of a judicial nature.
State Sen. Lee Schoenbeck, a Watertown Republican who opposed the amendment, said the wide margin shows that South Dakotans agreed it was a bad idea.
"I think it shows our people understood what the issue was," Schoenbeck said Tuesday night. "It was a radical thing from outside interests and there was no way our South Dakota folks were going to go with that."
Bill Stegmeier, a Tea businessman who led the effort to pass the measure, said three public opinion polls showed that voters supported the amendment. He said a September poll conducted for his organization showed 67 percent of voters were in favor of it.
"I think it's obvious vote fraud," Stegmeier said by telephone Tuesday night.
Asked if he would call for an investigation, Stegmeier responded, "Why in the world doesn't the media just initiate an investigation. Isn't that what you guys are all about?"
Judges have immunity from lawsuits over their official acts. The amendment's foes say judicial immunity helps protect the fairness and independence of judges by preventing intimidation that would arise from the threat of lawsuits.
A special 13-member grand jury, selected at random from registered voters or volunteers, would handle complaints and decide whether judges and other officials could be sued or prosecuted.
Opponents said any mistakes by judges can be handled under the present system, either through traditional appeals, a disciplinary panel for judges or judicial elections.
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40: Capping judges' tenure is rejected
By Howard Pankratz , Denver Post Staff Writer
For months, former Colorado Senate President John Andrews argued that the state's appellate judges were out of control.
Tuesday night, Andrews conceded that his efforts to pass Amendment 40, which would have limited Colorado's Supreme Court justices and Court of Appeals judges to 10 years on the bench, had failed.
"We can accept defeat without excuses," Andrews said. But he added that anti-40 forces had been able to muster more money and create fear of chaos in the courts if his proposal had passed.
Former Colorado Supreme Court Justice Rebecca Kourlis, now executive director of the Denver-based Institute for the Advancement of the American Legal System, said she was heartened by the vote.
"This is a huge credit to the broad coalition that supported the judiciary and opposed the term limits," she said. "It is a credit to the voters that understood the amendment would make the judiciary more political."
In early returns, appeals Judge Jose D.L. Marquez, whom Andrews had called "the poster boy for term limits," was leading in his effort to be retained.
Andrews, chairman of Limit the Judges, ran into a barrage of opposition to the measure leading up to the election.
Gov. Bill Owens and Colorado's three living former governors opposed term limits for Colorado's appellate courts.
"This is a terrible amendment. This is not just a bad idea, it's a terrible amendment," former Democratic Gov. Roy Romer said of Amendment 40.
John Moye, chairman of Vote No 40, said he believed voters knew how illogical term limits would be for the judiciary.
"Judicial independence is the key to the checks and balances of our system," Moye said. Had it passed, he said, it would have devastated the courts, causing backlogs of cases and gutting the courts of experienced judges.
Also coming out against the amendment was the American Judges Association.
Steve Leben, a Kansas jurist and president of AJA, said that under the U.S. system of government, the executive and legislative branches are political. If the third branch - the judiciary - is not kept out of the political fray, it cannot do its job of providing a check and balance on the other branches, Leben said.
Andrews said this won't be his last effort to cap judges' terms.
"We are not going away," Andrews said. "I expect we will be back on the ballot in 2008."
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Part-timers find room at law firm
High turnover helps change attitudes on work-life flexibility
The Boston Globe, November 6, 2006
By Maggie Jackson
This isn't a story of dramatic victories, the kind you might get with a bang from a judge's gavel. It's a tale of slow, trickling change and the tools you need to hammer out real work-life progress, not empty jargon, in law firms.
Consider the part-time policies that just about all firms have on their books. Almost any lawyer in America will tell you that these policies are often synonymous with derailed careers. And that's why just 4 percent of lawyers work part time, compared with about 14 percent of professionals in engineering, medicine, or architecture, according to the nonprofit Association for Legal Career Professionals.
But take a part-time policy, and make it transparent and open to all. Then add an in-house advocate to help people find the right arrangement for their needs, broker the change with management, and monitor its success. Suddenly, flexibility looks real.
This is essentially the model adopted nationwide this year by Kirkpatrick & Lockhart Nicholson Graham, a firm with 1,000 lawyers, with offices in Boston. The firm won't specify, but says that "dozens" of lawyers work reduced hours and that their numbers have risen 40 percent since January.
For partner Irene Freidel , the new program helped persuade her to return in February from 18 months at home with her 11-year-old twins, Jacob and Claire , and 6-year-old son, Adam . Freidel is a pioneer, having made partner at Kirkpatrick & Lockhart in 2000 as a part-timer. But a lack of flexibility, especially to telecommute, drove her to quit in 2004.
Now she works four days a week, including two at home, a schedule that she worked out with Roslyn Pitts , the firm's balanced hours coordinator, and Freidel finally feels that her own version of balance is doable.
"This program has made the difference in making me feel I could do both -- have children and have a career," says Freidel. "It's not easy, but it's possible."
Work-life issues aren't just for women, and yet women have driven progress in this area because until recently, they've been most in need of employer support in their efforts to juggle family and career. At the top, inflexibility spells brain drain: While women have made up 40 percent to 50 percent of law school graduates for two decades, they comprise just 17 percent of partners at major law firms .
Creative thinking is especially paramount to reshaping the legal profession, which is built on rigid revenue expectations per lawyer. Lawyers at top firms are expected to bill 1,800 hours a year but put in a grueling 2,100 hours or more of actual work. Part-timers are assumed to be bad deals because their overhead costs equal a full-timer's.
But look beyond such narrow measures, and the picture changes, says Joan Williams , a law professor at the University of California/Hastings and author of the balanced hours model adopted by Kirkpatrick & Lockhart and other progressive firms. Attrition is far more costly to firms than overhead, and turnover frustrates clients, says Williams, who argues that successful balanced hours programs benefit everyone.
"If you don't solve the problem, it shows up in terms of women's retention," says Williams. "If you do solve the problem, it benefits men as well as women."
To inspire real reform, you also need people who are willing to question the system, and there's no better place to nurture change agents than at law schools. That's why Deborah Epstein Henry created the "Cheat Sheet," a list of 75-odd benchmarking questions for students to determine about firms, such as what percentage of partners work reduced hours.
"I'm trying to think about the pressure points to make change," says Henry, president of Philadelphia-based Flex-Time Lawyers, a consulting and advocacy group. The guide, released in September, seeks to help women "before the problems begin," as well as give firms a self-measurement tool.
The guide has inspired second-year Columbia Law School student Anne Shutkin to think differently about her future. It helps students see "how a firm fits into that larger picture of work-life balance," said Shutkin, who participated in focus groups during the drafting of the cheat sheet.
Effective change doesn't happen overnight, and almost always, it's powered by group efforts, policies with bite, leadership support, and visionaries, such as Williams and Henry, who keep their eyes on the ball.
"This is not all that complicated," says Lauren Stiller Rikleen , who, as a senior partner with Bowditch & Dewey and author of "Ending the Gauntlet: Removing Barriers to Women's Success in the Law," is a visionary herself. "We're talking about retaining talent through the ability to use flexible scheduling. It just seems, like in the law, there's a tendency to make it more complicated than it needs to be."
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Democrats to Usher In Change in Judicial Nominations, Investigations
T.R. Goldman, Legal Times of Washington
Democrats, as widely expected, wrested control of the House of Representatives from the Republicans, after 12 years of Republican rule, in elections across the country Tuesday, setting the stage for a series of intensive investigations of the Bush administration by several different House committees.
But it appears Democrats also carried the Senate -- radically changing the politics of federal judge-picking as well -- and that victory was something of a surprise, even to them. As of Wednesday afternoon, Democrat James Webb had claimed victory in the Virginia Senate race over incumbent Sen. George Allen, but a recount that could take several weeks appeared likely. If Webb is indeed the winner, Democrats will have a 51-49 edge.
"There just wasn't a firm sense this would happen," says a senior Democratic staffer. "It could have been as few as two pickups," the staffer adds, referring to previously Republican seats won by Democrats. "But six was at the high end."
The Democratic Senate victory, assuming it holds, could also have profound implications for the next Supreme Court pick, if 86-year-old Justice John Paul Stevens dies or resigns, or another justice resigns or falls ill, during the last two years of the Bush administration.
"The biggest thing [about the Democratic takeover] is judges," notes David Hoppe, former chief of staff to Sen. Trent Lott, R-Miss. "Everything else has a way of working itself out," adds Hoppe, now a lobbyist at Quinn Gillespie & Associates.
By midday Wednesday, Senate Judiciary Committee Democrats had already plunged into discussions over the agenda they planned to carry out in their expected majority status.
If they are indeed the majority, then when the 110th Congress begins in January, the Senate Judiciary Committee will be led by Vermont's Patrick Leahy, a 32-year veteran who had previously chaired the committee for 18 months, from mid-2001 until just after the 2002 elections, after the departure of Vermont's James Jeffords from the Republican Party.
Legislatively, the changes between a Leahy-controlled committee and the current committee, under Chairman Arlen Specter, R-Pa., shouldn't be that extreme; the men are relatively close ideologically.
The major difference will be the politically contentious issue of federal judges, especially federal circuit judges, as well as a possible Supreme Court replacement.
At the very least, a Democratically controlled Senate Judiciary Committee would make it unlikely that President George W. Bush's most conservative choices will even get out of the committee. That would leave Bush with two choices: He could pick more moderate conservatives that would pass Democratic muster, or he could pick highly conservative judges who would not get a majority committee vote, a choice that would give the Republicans' ultraconservative base an energizing issue.
That strategy may be difficult, however, in the event there is a Supreme Court replacement, notes Hoppe.
"If there is a vacancy on the Supreme Court, it will be harder to say, 'Gee, golly, I won’t fill it,'" he says.
In both the Senate and House, Democratic majorities will almost certainly translate into one major change: more oversight.
The Senate Judiciary Committee will revisit the lack of habeas corpus rights for Guantanamo Bay detainees, the administration's warrantless surveillance program, and patent reform, according to lobbyists who follow the committee.
In the House Judiciary Committee, the gavel will move to Michigan Rep. John Conyers, a mercurial veteran who on Tuesday was elected to his 21st House term.
Conyers' staff were in meetings all day Wednesday, so a future agenda for the upcoming majority staff was difficult to determine.
But Conyers will certainly share certain oversight duties with Henry Waxman, the California Democrat who will chair the House Committee on Government Reform. That committee, which was expanded during the years of the Clinton impeachment, has maintained a large staff. And Waxman has a reputation as an aggressive investigator.
While in the minority, Waxman has continued to produce investigative reports; one of the most recent, documenting the links between ex-lobbyist Jack Abramoff and the Bush White House, resulted in the resignation of Susan Ralston, then a White House aide to Karl Rove.
Nabers says he's revived court system
ERIC VELASCO, The Birmingham News
November 2, 2006
Drayton Nabers Jr. says he has helped revive a moribund court system since his 2004 appointment as chief justice of the Alabama Supreme Court, and there is no need for voters to make a change on Nov. 7.
"It's not a matter of `If it isn't broke, don't fix it,'" said the Republican, who is seeking a full six-year term. "It's a matter of the court system operating at a high level and there's no need for a change whatsoever."
Nabers said his leadership experience in the private and public sectors makes him the most qualified candidate.
The chief justice is the chief executive officer of the state's judiciary and its 2,000 employees who are involved in 1 million cases a year and operate under a $165 million budget.
"I was chief executive officer of a similar-sized company with a sizable budget," said Nabers, who was CEO of Protective Life Insurance for 10 years.
"This is a position of leadership, in the administrative role and the judicial role," he said. "Look at my record and you will find someone who has assumed a number of leadership roles, in the law, community, church, business, as the state's finance director and chief justice."
His opponent, Sue Bell Cobb, says Nabers lacks judicial experience. He never had been a judge before Gov. Bob Riley made him chief justice.
But Nabers points to the 3,500 decisions he's participated in during his tenure on the court. The chief justice votes in all cases, while the eight associate justices are divided into two teams that split the docket.
"The judicial part is two-thirds of the job, timewise," he said. "I've been productive and written opinions that were well-decided."
This is the first election in Nabers' life. He says it will be his last. No one can run for a judgeship after age 70, which Nabers would reach toward the end of his tenure if he is elected.
He said he finds campaigning distasteful. But for a novice, he's played the game effectively.
Through mid-September, the latest reporting period for candidates, he had raised $2.7 million - more than any other Supreme Court candidate in the nation this election year.
He's spent $1.2 million so far on television advertising, more than any other Supreme Court candidate in the 16 states with races this year. His spring primary race cost $2 million.
"I don't like the amount of money in the race," he said. "But I'm practical. You've got to get your message out and that's not inexpensive."
His campaign TV ads initially focused on his credentials but have become increasingly harsh. They've painted Cobb as a liberal who contributed to John Kerry's presidential campaign and whose own campaign is funded by liberal trial lawyers and gambling lords.
Nabers says he's just responding to attack ads by Cobb.
"We're seeking to identify the candidates in terms that voters understand and appreciate," he said. "She started the campaign by saying oil and insurance money is behind Nabers. Isn't it fair for me to ask who's behind my opponent?"
Meanwhile, the Alabama Republican Party has premiered a Web site, www.slicksue.com, echoing the criticism of Cobb that Nabers has featured in his ads.
Both sides in the election have accused each other of breaking judicial canons of ethics regarding truthful campaigning. Cobb also has made much of Nabers' refusal to sign an agreement by a State Bar of Alabama committee to wage an ethical campaign.
Nabers issued his own pledge:
"Our pledge to voters is to tell the truth and be fair, but to respond to issues my opponent interjects into the campaign."
Nabers outlined his personal conservatism in a Bible-based book on character he wrote before his campaign began.
His judicial philosophy also is conservative. He believes judges should base rulings on what laws plainly say, not create new rights.
He sees the all-Republican court as mainstream in how it interprets the law. He said he's never seen anyone make a legitimate case that the court has become too business-oriented.
"There should be a certain stability to the interpretation of the law," he said. "Without it our economy could suffer greatly because capital will not come into the state and create jobs."
National judicial watchdog groups have said Nabers' stated stance on abortion, which he's called a "travesty" in campaign ads and interviews, signals how he would rule before a case even comes before him.
To Nabers, the U.S. Supreme Court case that legalized abortion, Roe v. Wade, is the byproduct of the kind of activist court he opposes. At the same time, he said he also believes in following precedent.
"You do your best in every case to be impartial and fair and apply the law," he said. "We carefully analyze issues in every case and render a decision that is clear legally, regardless of personal feeling."
Creating greater efficiency in the courts through technology is the cornerstone of the accomplishments Nabers cites and his plans if elected.
Nabers said he inherited a court system wracked by budget cuts that left it shorthanded.
His initiatives like electronic filing for civil cases, scheduled to be statewide by the end of the year, and the electronic system for issuing traffic tickets and collecting fines have helped streamline operations, he said.
"Technology and a proven management philosophy have returned life to the system, buoyed spirits and made it much more efficient," he said.
If elected, Nabers said, he'd create an electronic business center where, for example, garnishments can be done with no paperwork for court clerks or the businesses involved.
He would create a teleconferencing system in juvenile courts to save the cost of driving youths to and from detention.
Nabers also wants to improve the system that provides attorneys to indigents in criminal cases. The state needs to provide oversight to the counties and establish minimum standards to ensure quality defense at a reasonable price, he said.
He also said he would push for drug courts in each county. They would follow the example of drug courts in Jefferson and Shelby counties, which provide a treatment alternative to prison for nonviolent offenders.
"I have served well as chief justice in the time I've been on the court," he said. "Why should there be a change?"
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Cobb: Experience makes her top pick
ERIC VELASCO, The Birmingham News
November 2, 2006
Sue Bell Cobb says her experience handling cases in most of Alabama's 67 counties as a trial court and appellate court judge makes her the best choice for chief justice of the Alabama Supreme Court.
She was a district court judge for 13½ years, and has served 12 years as judge on the state Court of Criminal Appeals.
"What I know about the court system you don't learn from a book," she said. "I've seen the strengths and weaknesses in the system and appreciate the importance of strict oversight of judicial conduct and discipline."
Cobb, a Democrat, says her judicial experience is what separates her from her Republican opponent, Drayton Nabers Jr., who was appointed chief justice in 2004 and now is seeking a full six-year term.
"My opponent is a very fine fellow," she said. "But he never wore a robe before he became chief justice. He just doesn't know as much about the court system as I do and he never will."
Cobb's legal experience is mostly as a judge. She was appointed a Conecuh County District Court judge when she was three weeks out of law school.
Since then she's also taken temporary judicial appointments in 40 of the state's 67 counties.
"I also was the first woman elected to the Court of Criminal Appeals," she said. "I believe a judge should know the law, see both sides and have an abiding concern for people."
Soft, hard sides:
Cobb's campaign has reflected her soft side and her hard side.
Her ads talk about how she has worked to protect children through programs like the Children First Foundation and how she is the only wife and mother in the race. But she also says she's a tough judge who has sent hundreds of killers "back to Death Row."
"I think most people that know me or hear me speak know that when I say something, I'm saying it from my heart," she said.
Cobb adopted the hymn, "This Little Light of Mine" as a theme in television and radio ads that depict her playing it in church and singing it with her daughter.
But she's also thrown a few punches in her $716,000 worth of television ads, the fourth highest media buy in Supreme Court races in the nation. She has accused Nabers of being in the pocket of oil and insurance interests and of pulling a false ad - both of which Nabers disputes.
She counters Nabers' ads about contributions to her from liberal trial lawyers and gambling interests by pointing to the hundreds of small donations she's received from individuals, mostly women. She says she has broad support from the legal community and businesses as well.
Cobb said she has tried to keep the discourse civil, noting that she signed an agreement issued by a State Bar of Alabama committee to keep the campaign ethical and honest.
She's criticized Nabers for not signing the pledge and said she's concerned about last-minute attacks by third-party interests like the American Taxpayers Alliance, which spent $990,000 during the primary on ads touting Nabers and Justice Lyn Stuart.
"I'm prepared for whatever comes," she said.
She responded to one attack ad by Nabers by urging viewers to "do what I do" and turn off the television when such ads run. But that ad also repeated her mantra that oil and insurance companies back Nabers.
"What has happened is exactly what I've been wishing we could avoid," she said. "I've been basically defending myself. They've used my positive ad as a trumped-up excuse to begin a negative campaign against me. He's misled the people of Alabama by saying I attacked him first. If my opponent pulls his ads mentioning my name, I'll pull my ads mentioning him."
Cobb says she has several changes in mind if she wins.
First priority would be to change the system for disciplining wayward judges.
Under former Chief Justice Roy Moore, rules were changed to eliminate the complainants' confidentiality, and the effect has been to cut complaints by two-thirds, she said.
Cobb said she would return confidentiality, and also eliminate the Moore-led rule changes allowing judges to see the entire investigative file and refuse to comment on complaints.
"Judges should be held to a higher standard and our oversight of all judicial misconduct should hold them to that higher standard," she said.
She said she also would commission an extensive survey of the court system involving lawyers, court personnel, victim advocates and the public. It would provide evidence of what the courts are doing right and expose what needs to be changed.
"We also need to ask people if they've been treated fairly," she said. "It's never been done before."
Cobb said she would like to expand judicial training by sending all judges and court administrators to the National Judicial College, instead of the current practice of sending only new judges.
She believes the state needs to expand the number of special courts for domestic violence and nonviolent drug offenders.
"Imagine the money and lives we'd save through these prevention programs," she said. "We need to identify the people who are not NORPSTs - normally responsible people who did stupid things - and put them into places and services so they won't continue to hurt or kill people. It also saves prison space."
She also wants to create a multisystemic therapy system, a community-based program that works with juvenile offenders and their families to solve problems early and reduce recidivism.
Cobb said it's time for the court to re-examine procedural rules such as the official set of jury instructions judges use in capital murder cases. They haven't changed in 14 years.
"Voters want judges to try cases that won't be reversed," she said.
Cobb said her experience on trial and appellate courts, as well as her time promoting child safety, makes her best suited to chart the direction Alabama's courts will take.
"Judges should be gap fillers," she said. "Judges know the problems in a community and ought to use their leadership and influence to make the community a better place."
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Nabers better to lead courts – [Editorial]
Montgomery Advertiser, November 2, 2006
No matter who Alabama voters choose on Tuesday as the next chief justice of the state Supreme Court, the state's court system will be led by a qualified person whom we believe wants what is best for the people of the state and its judicial system. Not that you would know it by their television advertising attacks on one another.
But despite those ads, we are convinced that both Republican Drayton Nabers and Democrat Sue Bell Cobb are good people who likely would make a good chief justice.
Nabers was appointed chief justice by Gov. Bob Riley in 2004. He took over leadership of the court and the court system at a time when it was split over the Ten Commandments issue and was trying to recover from several years of drastic budget cuts and layoffs of key personnel.
Nabers clearly had a calming influence on the judicial system, and his considerable management skills have helped the system weather the worst of the budget cuts.
Cobb is a veteran judge who has served on the state Court of Criminal Appeals for 12 years, but she may be better known for her advocacy work for children's causes. She has much more overall judicial experience than Nabers, and especially so in criminal law.
But our suggestion for voters on Tuesday is Drayton Nabers, who has shown since his appointment that he is both a good administrator of the state judicial system and a sound judge.
Associate justice, Place 2: Incumbent Republican Justice Tom Woodall faces Democratic challenger Gwendolyn Kennedy. Woodall's much greater experience makes him by far the better candidate. He is a former Jefferson County circuit judge and has served for the past six years on the Supreme Court. He is outspoken and has a reputation for integrity and hard work.
Associate justice, Place 3: The incumbent, Republican Lyn Stuart, faces Democrat Albert Johnson, a well-qualified circuit judge with 22-years experience.
Stuart is a former district judge from Baldwin County. She has shown in her past six years as an associate justice that she has an admirable work ethic, sound reasoning skills and a good judicial temperament. We recommend her re-election.
Associate justice, Place 4: This position on the state Supreme Court will have a strong person filling it no matter which candidate wins on Tuesday.
Republican Glenn Murdock has an outstanding legal mind and reportedly has done a good job as a judge on the state's Court of Civil Appeals. He would be a good justice if elected.
But Democrat John England has even stronger legal credentials. He has been a circuit judge in Tuscaloosa County for many years, and even served a two-year stint on the state Supreme Court. His legal background is more varied than Murdock's, and he has shown that he can handle the task. We recommend his candidacy to voters in the election on Tuesday.
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Look closely at judicial candidates [Op-ed]
The Birmingham News, October 29, 2006
WILLIAM GORDON and CONNIE BARKER
The 2006 Alabama Judicial Campaign Oversight Committee was formed, among other things, to help the public better understand the job of being a judge and the qualities that make a good judge.
What is the job?
Although judges are elected, they are not representatives of any person, group or special interest. They are accountable only to the Constitution and to the law. It is their job to examine the facts presented and apply the law. Judges should be intelligent, diligent, good students of the law and have a good work ethic.
Fair and impartial:
According to a recent survey by Justice at Stake, a nonpartisan national campaign working to keep our courts fair and impartial, a bipartisan majority of Americans treasures the role of our courts in protecting individual rights and providing access to justice. They want judges to be fair and impartial and accountable only to the law and the Constitution - not subject to the whims of political interests or intimidation arising from unpopular decisions.
Judges are trained to be impartial decision-makers. While some of us may want to elect candidates with judicial philosophies similar to our own, we have no right to expect that any judge will vote in a certain way. Fair and impartial judges may rely on their personal philosophies as they consider cases before them, but they are still bound to apply the law to the facts presented.
Our judges routinely perform their sworn duties with integrity, impartiality and fairness. The committee urges all Alabama citizens to read the candidates' campaign materials, ask your friends or lawyers or other judges about the candidates and read the newspapers. Consider endorsements by newspapers and endorsements by all of the various groups, but also consider what reasons they may give or that they may have for such endorsements. If you can, meet and talk to the candidates.
Electing qualified judges is essential to ensuring access to justice for all, in fair and impartial courts. To help voters make informed decisions about judicial candidates, the committee urges voters to learn about the candidates' legal knowledge and abilities, professional experience, judicial temperaments, integrity, diligence, personal responsibility and their service to their communities. Check the League of Women Voters Web (www.lwval.org), voter guides in your local newspapers and information provided by local bar associations.
The Alabama Judicial Campaign Oversight Committee is a nonpartisan group actively working to encourage, support and protect the public interest in maintaining a dignified and highly competent judiciary by educating and encouraging judicial candidates, the media and the voting public to seek judicial campaign conduct that reflects the highest levels of personal integrity.
A chance to make a difference:
The privilege of voting is an essential element of our democracy. It allows our voices to be heard, and it gives us an opportunity to make a difference. This year, please vote, and the committee asks you to do so after having done a little homework.
William Gordon, a retired judge, is co-chairman of the Alabama Judicial Campaign Oversight Committee. Connie Baker, an attorney with the Montgomery law firm of Capell & Howard, is also co-chair of the committee.
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Voting for Judicial Independence – [Editorial]
The New York Times, November 2, 2006
Nearly obscured by the struggle for control of Congress, there is another important battle in a handful of states over measures aimed at punishing judges for their official rulings and making them more captive to prevailing political winds. These measures all hide behind the superficially appealing but profoundly misleading banner of judicial accountability. And, taken together, they add up to an assault on a fair and independent judiciary.
In Colorado, voters will decide the fate of a far-reaching state constitutional amendment designed to kick a huge percentage of top sitting judges off the bench by setting a term limit of 10 years and applying the cap retroactively. A measure on the ballot in Oregon would create new geographic districts from which appellate judges could run, as a backdoor way to oust judges from the Portland area.
In Montana, conservative groups tried to force voters to confront Constitutional Initiative 98, an attempt to “rein in” judges by establishing new recall elections and making it easier to remove judges for specific rulings. Fortunately, the state’s high court ruled this misbegotten initiative invalid because of what it called “pervasive fraud” by out-of-state paid gatherers of signatures.
But the wackiest and potentially most far-reaching of the judge-bashing schemes is still on the ballot, South Dakota’s Jail 4 Judges initiative. The brainchild of Ronald Branson, an antigovernment activist from California operating at the political fringe, this reckless exercise seeks to keep judges in line by amending the state Constitution to eliminate judicial immunity from lawsuits by disgruntled plaintiffs and others. Immunity is a time-honored way of preserving an independent judiciary.
This radical measure would create a special grand jury with a rotating membership and loose rules — in effect, a fourth branch of government. This new entity would be vested with the power to punish judges for their decisions, or, for that matter, school board members or any other local public official who had the bad luck to fit under the amendment’s broad definition of judicial power. Writing in The Wall Street Journal, the former Supreme Court Justice Sandra Day O’Connor correctly blasted the initiative as a bald attempt at judicial intimidation.
By rejecting Jail 4 Judges, South Dakota voters can send a message of support for a strong and independent judicial system — without which democracy cannot function — that will resound nationwide.
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