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Black's Law Dictionary defines judicial activism as "a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent."

 
 
 

 

 

 

 

CURRENT JUDGE MADE LAW NEWS & VIEWS
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April 2009

Speaker Addresses Perceived "Judicial Activism"

by Greg Slisz /10 Wabash College

4-24-09 -- At a time in which the impending replacement of several Supreme Court justices looms in the nation’s future, Executive Director for the Committee for Justice Curt Levey spoke out against judicial activism in the courts.  "(The Committee for Justice focuses) on what is the proper role of a judge.  Should a judge be a neutral umpire or should a judge be an activist?" Levey asked.  . . . Levey’s Thursday night speech began with an explanation of the Committee for Justice, which was founded in 2002 in response to systematic obstruction of many of President Bush’s judicial nominees, most notably Miguel Estrada. Republicans, Levey explained, needed to respond to this problem. "Conservative activists realized we really needed something to counter the liberal groups on this issue that had been around at least since [blocked Republican justice nominee] Bork and had been very effective," Levey said.  . . . Democrats, Levey said, had filibustered judicial nominees for nearly the entire past eight years until Barack Obama became president and the nominations were dropped.   However, despite the partisan nature of the committee, Levey stated the aims of the committee were philosophical as well as practical.  "While trying to get Bush’s nominees confirmed, we were also trying to educate people about the proper role of the judge," he said.  . . . The very "role of the judge" is part of what made activism so dangerous.  Barack Obama’s statement that he wanted judges who were empathetic to peoples’ situations, Levey explained, destroyed  the objectivity that made the law such a useful standard.  "One of the problems with (empathy in the law) is that it’s standardless.  Who do you have empathy for?  And therefore, it’s really just a license for unbridled judicial discretion,"  Levey said.


September 2008

Judicial activism unconstitutional, former AG Meese says

Tulsa Beacon

9-25-08 -- Former Attorney General Ed Meese warned against Supreme Court judges who inject their personal bias and make laws instead of just interpreting them. . . . Meese spoke to a packed house at the Renaissance Hotel in Tulsa last Thursday as part of  the 15th anniversary of The Oklahoma Council of Public Affairs (OCPA), a conservative think tank based in Oklahoma City. . . . Meese served as U.S. Attorney General during the second term of President Ronald Reagan. . . . “There is the conflict between constitutional fidelity and judges who substitute their own beliefs for the law,” Meese said. . . . In 1942, Meese said, the Supreme Court decision in Wickard vs. Filburn opened the door to massive federal control of issues that had been left to the states by the U.S. Constitution. It expanded the interstate commerce clause and allowed the federal government to control almost any activity - whether it involved more than one state or not.


Supreme Court Justice Scalia:
Nothing Qualifies Judge to Create Abortion Right

by Steven Ertelt, LifeNews.com Editor

 9-16-08 -- Justice Antonin Scalia is one of the most outspoken jurists on the Supreme Court when it comes to talking about abortion. Scalia repeated the mantra on Monday that he's presented to college students and community forums about how the high court doesn't have the power to declare a right to abortion. . . . During a speech at Utah State University's Taggart Student Center, where 1,700 people came to hear the respected judge tell it like it is, Scalia criticized those jurists who engage in what he called "abstract moralizing." . . . In addition to faulty decisions like Roe v. Wade, Scalia said it results in a corrupt political process where citizens and politicians expect new judges to "rewrite" the U.S. Constitution and make policy decisions normally reserved for legislatures. . . . "These are social preferences that can only be handled in a political process," he said. . . . According to a Salt Lake Tribune report, Scalia said the cure for the problem is for Americans to view the Constitution as a "static" document and support judges who won't make up the law from the bench. . . . Scalia touted his "originalist" views whereby he says the Constitution has a fixed and knowable meaning established at the time of its drafting. . . . That applies to pro-life issues like abortion and assisted suicide, he explained.


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Roe v. Wade a classic example of judicial activism

By: Ben Tarr, The Daily Campus On-Line

9-12-08 -- Abortion has become a highly politicized issue in American society. It is one of many issues which divide Senators McCain and Obama in our upcoming Presidential election. John McCain rightfully wishes to overturn the famous Roe v. Wade (1973) case, which generally made it much easier for women to secure abortions than prior to the ruling. Barack Obama endorses the Roe case; according to Obama's Web site, he received a "100% pro-choice rating with Planned Parenthood and NARAL Pro-Choice America." . . . President Bush appointed two conservative, anti-Roe appointments to the Supreme Court, Samuel Alito and John Roberts. In addition, many of the Justices are older than the light bulb, perhaps opening the door for the next president to appoint justices to the Bench. The Roe v. Wade case may soon be challenged, and the Supreme Court balance is crucial in deciding what the outcome of that future case will be. Future justices must overturn the Roe case due to the poor Constitutional reasoning employed during the ruling. . . . Abortion opinions aside, the Roe v. Wade Supreme Court ruling of 1973 exemplifies all that is wrong with our Supreme Court. This case provides an example where the Court deviated from its responsibility, which is to judge the constitutionality of a particular law. The Roe case illustrates the deleterious effect on our democracy when judges become political actors. . . . Roe challenged the constitutionality of a Texas abortion law which proscribed attempting an abortion unless the purpose was to save the mother's life. The majority opinion alleged that this law violated the Fourteenth Amendment's Due Process Clause, which protects the citizens' right to privacy against state action. . . . The court ruled that the right to privacy included a woman's right to terminate her pregnancy, while also acknowledging in the opinion that, "The Constitution does not explicitly mention any right of privacy." . . . Claiming that the right of privacy, which is the crux of the majority's opinion, includes abortion is a massive stretch of the Constitution and is dishonest; we have a legislative branch to draft laws and a Supreme Court to interpret the constitutionality of these law. Let it stay that way.


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Good Judges Are More Important Than Ever

By David B. Rivkin Jr. & Lee A. Casey, Wallstreet Journal Opinion

9-11-08 -- Democrats have often caricatured conservatives' concern with judges as part of what they consider an "obsession" with abortion. In fact, over the last 40 years judicial activism has brought the courts to the center of national policy making in virtually all aspects of life. . . . However, before 9/11, even the most activist judges generally did not attempt to drive the nation's foreign and defense policy. The Constitution reserves such matters to the president and Congress, and constitutional doctrines such as the separation of powers and "political question" were recognized and applied by courts as a means of avoiding much active engagement in these areas. . . . Occasionally the judiciary did intervene, as when the Supreme Court ruled against President Harry Truman's seizure of the nation's steel mills, to pre-empt a steelworkers' strike during the Korean War, in Youngstown Sheet & Tube v. Sawyer, 1952. But the Court narrowly tailored its decision and did not undertake an ongoing supervisory role in the war. It simply made Truman give the mills back. . . . Times, however, have changed.


Save America’s Judiciary from Judicial Activists

Because the next President is likely to choose Justices that will determine the outcome of important cases for the next generation, the stakes for the Supreme Court could not be higher than they are in this election.

WEBCommentary Contributor Author:  Michael J. Gaynor   

9-10-08 --. The Judicial Confirmation Network helpfully released a chart comparing the positions of the Democratic and Republican parties on federal courts and judges. . . . . The chart is based upon the positions outlined in the two parties' respective platforms from their conventions, as well as the statements made by the presidential candidates for each party. . . . . To each of the following questions, the Republican Party answers YES and the Democrat Party answers NO.

Calls judicial activism a threat?

Opposes Kelo eminent domain decision?

Opposes Court granting legal rights to enemy combatants?

Opposes Court's interference with death penalty?

Opposes courts setting abortion policies?

Opposes judges undermining traditional marriage laws?

Opposes judges injecting foreign law into American jurisprudence?

Opposes Senate inquiry into a judicial candidate's religious convictions?

The Judicial Confirmation Network is an organization of citizens joined together to support the confirmation of highly qualified individuals to the Supreme Court of the United States. It works to ensure that the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote. . . . . The Judicial Confirmation Network understand that the proper role of a judge or justice is to interpret the law and the Constitution – not make up the law and deprive the people of the right to govern ourselves—and a judge or a justice should not use the power of the court to impose his or her personal or political agenda on the people. ******* "John McCain and the Republican platform identify judicial activism as a threat to self-government and reject judges legislating from the bench. Barack Obama and the Democratic platform do not, which is not surprising given that Obama has said he prefers liberal activist judges and would not appoint those who practice judicial restraint.


MICHIGAN  

Fight for the soul of Michigan’s highest court

By Eartha Jane Melzer

9-8-08 -- According to some, Michigan’s Chief Justice Clifford Taylor is the leader of the finest court in the nation. According to others, he’s a tool of big business who has led a destructive attack on laws protecting consumers and the environment, and his court is the worst in the nation in terms of bowing to political pressure. . . . What is certain is that Taylor’s seat is the highest statewide position up for grabs in this November’s election — and that this little overlooked race at the bottom of the ballot is the one most likely to actually affect people’s lives. . . . Supporters say he is crucial for the 4-3 decisions upholding pro-business laws passed by Michigan’s Republican Legislature under former Gov. John Engler. Many of the most controversial recent decisions by the seven-member court have been issued by a Taylor-led, four-vote conservative majority.


FEDERAL JUDGES UNDER SCRUTINY

Click below names for News & Views

Impeaching a Federal Judge? -- Thomas Porteous

Took cash & gifts from lawyers in pending cases --
addicted to alcohol & gambling

Judge Samuel Kent

Original Information: Kent was disciplined for sexual harassment & inappropriate behavior; the info has been sealed from the public
Recently indicted

U.S.D. Chief Federal Judge Edward Nottingham
Linked to Prostitution Ring


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August 2008

MISSISSIPPI  

Justices Tell Colleague Not to Publish His Opinion. Unprecedented?

Posted by Dan Slater, WSJ Law Blog

8-22-08 --  The Law Blog knows we’re not supposed to declare something a “first” unless we’re absolutely sure. So we won’t do that today, because we’re not sure. But we would like to put a question to the readership: Has the majority of any court every voted to prohibit a colleague from publishing a dissent? . . . A loyal reader has alerted us that it happened recently to Mississippi Supreme Court Justice Oliver Diaz. Here’s the report from Northeast Mississippi’s Daily Journal. . . . “My job as a Supreme Court justice is to write opinions and dissents, when necessary,” Diaz told the Daily Journal. “I was prevented from doing so by a majority of the court.” Diaz speculated that it “may be unprecedented in the history of American jurisprudence.” The case at issue was a wrongful death lawsuit filed by an employee of the court against the Mississippi State Veterans Affairs Board. . . . The DJ’s requests for comments were not answered by Supreme Court Chief Justice James Smith, Justice Michael Randolph and Justice James Graves.


Click to read dissent (PDF)

Update: State Supreme Court releases previously banned dissent

By Patsy R. Brumfield, Daily Journal

8-22-08 --  It's public now - a dissenting opinion banned from disclosure Thursday by a majority of the Mississippi Supreme Court. . . . Clerk Jack Pool e-mailed to the Daily Journal a copy of dissent by Presiding Justice Oliver Diaz, which the justice wrote earlier this week in reaction an En Banc decision to dismiss a wrongful death case appeal. . . . After the prohibition vote by Chief Justice Jim Smith and justices William Waller Jr., George Carlton, Jess Dickinson and Michael Randolph, Diaz gave the Daily Journal a copy. . . . His dissent, which he described as - really boring and bland, - disagreed with this week's opinion from the court that it would not hear an appeal it earlier said it would. . . . Diaz's opinion was about the court's view in wrongful death lawsuits - he argued against the court's decision that the statute of limitations for wrongful death lawsuits begins at the time of the injury, not on the date of death. . . . "The obvious result is that a wrongful death action may expire before the decedent does," he said in his seven-page document provided to the Daily Journal. . . . It's still unclear what the justices' motives were behind their ban on Diaz's dissent, which numerous longtime court watchers termed from unusual to unbelievable.


NEW JERSEY  

N.J. Supreme Court Judge Can Be Sued Personally for Alleged Civil Rights Breach

Judge allegedly used his authority to intervene in investigations into whether his son was bullied by a classmate

Henry Gottlieb, New Jersey Law Journal

8-19-08 -- New Jersey Supreme Court Justice Roberto Rivera-Soto failed on Wednesday to escape a suit alleging he trampled the civil rights of a former high school classmate of his son. . . . Linda Feinberg, the Mercer County Assignment Judge, ruled there is enough evidence to sustain an allegation that Rivera-Soto used the authority of his position to intervene in school and municipal court investigations of whether Conor Larkin bullied the jurist's son Christian when they were Haddonfield High School classmates in 2006. . . . At the same time, Feinberg dismissed all of Larkin's claims against the state and against the judiciary, ruling that since the accusations against Rivera-Soto had to do with actions he allegedly took as a private individual, not in his capacity as a judge, the state can't be liable. She also said the state and Rivera-Soto in his official capacity are immune under the state Civil Rights Act of 2004. . . . The suit followed Rivera-Soto's censure by his Supreme Court colleagues last year for having ex-parte contacts with two judges and handing his business card to officials involved in a municipal court juvenile delinquency case he lodged against Larkin.


OKLAHOMA  

Courts keeping cases secret

District judges sealing many documents

Tulsa World

8-11-08 -- Oklahoma's district court judges are sealing thousands of court cases and documents — mostly because attorneys simply asked them to. . . . More than 2,300 cases statewide have received a judge's order to make at least one record in the file not available to the public, according to a Tulsa World analysis going back to 2003. . . . These records are added to a growing list of nonpublic court information, including that generated in drug courts, mental health courts and juvenile proceedings. . . . Records that are being sealed include financial records of companies and hospitals, settlements in wrongful-death lawsuits, divorce proceedings, protective orders and name changes. . . . Joey Senat, past president of Freedom of Information Oklahoma, said he was surprised by the amount of sealed records. . . . "I had heard of this going on in other states, but I'm really disappointed this is happening to the courts in our state," Senat said. "This is a real indication there are two systems — one for the rich and powerful and one for the rest of us. The public has been left out of this process. . . . "One thing we need to remember is that the judges who are signing those orders are elected and the court clerks are elected. If we want our records to stay open and stay available, we need to be aware of who we are electing as court clerks and judges. Open government needs to be the issue." . . . The Tulsa World requested information from the state's 77 court clerks to review the types of records and cases sealed by judicial orders since 2003. . . . Court Clerks Sally Howe Smith of Tulsa County, Patricia Presley of Oklahoma County and Sue Wells of Wagoner County were the only clerks able to provide lists of case numbers for analysis.


NEW JERSEY  

Lawsuit against justice likely to continue

by Kate Coscarelli/The Star-Ledger

AP PhotoJustice Roberto Rivera-Soto in a 2004 photo.

AP PhotoJustice Roberto Rivera-Soto in a 2004 photo.

8-8-08 -- A judge ruled today that the civil rights lawsuit filed against New Jersey Supreme Court Justice Roberto Rivera-Soto may continue. . . . Superior Court Judge Linda Feinberg said she was tentatively going to allow the case against the justice as an individual, rather than in his official capacity as a state jurist, to go ahead and allow lawyers to gather more information. . . . It is possible that Rivera-Soto acted "under the color of law," using the influence of his post in a private setting. He is being sued, as an individual and a jurist, by a former teammate of the justice's son. . . . "One who represents himself in a way using the power and force of his position in a private setting where it may have consequences... the color of law is broad enough to encompass some of the allegations here," said Feinberg.


NEW JERSEY  

Off with just a scratch: the greatest "dog ate my homework" excuse in the history of N.J. politics

By Wally Edge

8-6-08 -- When New Jersey Judges get in trouble, their colleagues may tend to go a little easy on them. Superior Court Judge Rosemarie Williams, arrested from drunk driving in 2006, received the minimum sentence yesterday from Judge John Sweeney, a $631 fine and loss of her license for seven months. Five years ago, Williams was suspended from the bench for three months after a fight with her then-boyfriend. She claimed that she was suffering from battered woman's syndrome. . . . In March 1991, Administrative Law Judge Florence Schreiber Powers was convicted of shoplifting a pair of $29 watches from T.J. Maxx in Lawrenceville. Powers, the daughter of retired state Supreme Court Justice Sidney Schreiber, admitted that she stole the two watches but claimed diminished mental capacity. A psychologist who testified at her trail outlined nineteen different stresses, including an "ungodly" vaginal itch. . . . ***** A Superior Court Judge found her guilty after a two-day trial, but said a $250 fine was sufficient punishment. '"I find no reason to believe that defendant cannot continue to perform the functions and duties of her office in a manner consistent with her oath," said Judge Samuel Lenox. "Indeed, this experience will probably cause her to perform at an even higher level of dedication than she has in the past." ********* Robert Clifford pled guilty to DWI in 1989 while he was still serving as an Associate Justice of the New Jersey Supreme Court He was arrested again for DWI in 2000 when his vehicle struck a small bridge in his hometown, Bernards. Because Clifford's earlier conviction was more than ten years ago, the law allowed him to be viewed as a first-time offender. According to the Star-Ledger, "five state judges have been sanctioned by the Supreme Court following drunken driving convictions. Three were publicly reprimanded, one was censured and one was suspended for 60 days after he was convicted of a second driving-while-intoxicated charge."


WEST VIRGINIA   

High Court Review Sought on Judicial Recusals

W.Va. case triggers key ethical query

Marcia Coyle, The National Law Journal

8-4-08 -- The ethical hornets' nest stirred up by the refusal of an acting West Virginia chief justice to recuse himself from a multimillion-dollar appeal involving his major campaign contributor has reached the U.S. Supreme Court in a petition framing today's increasingly unsettling intersection of money and judicial elections. . . . The high court petition, fall-out from a bitter battle between competing coal companies, asks the justices to resolve "a recurring issue of far-reaching national importance." When, in the context of campaign contributions, does due process demand a judge's recusal? Caperton v. A.T. Massey Coal Co., No. 08-22. . . . "Although judicial elections -- and contributions to elected judges -- are a well-established means of selecting a state judiciary, there will be rare cases where campaign expenditures by a litigant create a constitutionally unacceptable appearance of impropriety. This is such a case," contends former Solicitor General Theodore B. Olson, co-chairman of the appellate and constitutional law group in the Washington office of Los Angeles' Gibson, Dunn & Crutcher.


WISCONSIN    

Judge: Court in 'vanguard' of changing law
Warns of criticism of decisions 'that greatly benefit some interest groups'
© 2008 WorldNetDaily

8-1-08 -- One Wisconsin Supreme Court justice says members of the judiciary should expect to be challenged for their impartiality on social issues these days. . . . "A court that is in the vanguard of making and changing law in a way that greatly benefits some interest groups and seriously damages others is a court that is actively, if inadvertently, promoting the politicization of its own elections," Justice David Prosser wrote in an concurring opinion yesterday. . . . "Every litigant believes he is entitled to an impartial review of his case. If litigants do not believe they can get an impartial review of their cases, they will inevitably attempt to change the composition of the court," he said. . . . Prosser's comments came in an opinion that concurred in the rejection of concerns from a lawyer that a different Wisconsin justice should not have participated in a case because the judge took campaign money from people connected to the lawyer's opponents. . . . The majority opinion said there was no conflict of interest because the judge involved himself determined there was no conflict of interest. . . . "[State law] mandates a judge's disqualification only when that judge makes a determination that, in fact or in appearance, he or she cannot act in an impartial manner," the ruling from the high court said. . . . The decision means attorney James Donohoo must pay a $90,000 penalty that stemmed from a case prompted by claims from a "gay" activist group that a visiting pastor had advocated for the murders of homosexuals. . . . The case that sparked Donohoo's dispute with the high court was brought against a "gay' activist group called Action Wisconsin, which later called itself Fair Wisconsin. That group had described visiting pastor Grant Storms, who appeared at a conference on homofascism, as having advocated the murders of homosexuals.

In the matter of attorneys fees in: Grant E. Storms, plaintiff, v. Action Wisconsin Inc. and Christopher Ott, defendants. Case # 2006AP396



July 2008

WEST VIRGINIA   

Supreme Court Justice takes strong stand

Brent Benjamin issues 60-page opinion dismissing calls that he step down from Massey cases

by Justin D. Anderson, Daily Mail Capitol Reporter

7-30-08 -- State Supreme Court Justice Brent Benjamin has issued a 60-page opinion defending his decision to continue hearing cases involving Massey Energy even though its chief executive spent millions to defeat his opponent for the court seat. . . . In the strongly worded opinion filed Monday, Benjamin called all the legal fuss over his participation in a $50 million appeal by the coal giant "disturbing" and took issue with what he said was an inference by fellow Justice Joe Albright and another judge that he had "actual and apparent" conflicts of interest in the case.

Click here for a PDF of Benjamin's opinion


GENERAL

The War Against Law

America’s forefathers had a profound respect for law. Today, law is being trashed, and we are suffering the consequences.

Gerald Flurry, Editor in Chief the Trumpet.com

7-28-08 -- The Greek Empire tried to establish the rule of law. It failed, and the empire collapsed. The Roman Empire also tried to build a society based on law. It was unable to do so and the Roman Empire fell. Many other empires experienced the same failure. . . . The famous British historian Paul Johnson wrote an article titled “No Law Without Order, No Freedom Without Law.” It was printed in the Sunday Telegraph, Dec. 26, 1999. In it he wrote (emphasis mine throughout):

“The rule of law, as distinct from the rule of a person, or class or people, and as opposed to the rule of force, is an abstract, sophisticated concept. It is mighty difficult to achieve. But until it is achieved, and established in the public mind with such vehemence that masses of individuals are prepared to die to uphold it, no other form of progress can be regarded as secure. The Greeks had tried to establish the rule of law but failed. The Romans had succeeded under their republic but Caesar and his successors had destroyed it. The essence of the rule of law is its impersonality, omnipotence and ubiquity. It is the same law for everyone, everywhere—kings, emperors, high priests, the state itself, are subject to it. If exceptions are made, the rule of law begins to collapse—that was the grand lesson of antiquity.”

Yes, “that was the grand lesson” of history. But have we learned that lesson? Failure to do so means we pay the supreme sacrifice—loss of our republic. . . . The continual problem of man has been his failure to learn from history. . . . Are “masses of individuals… prepared to die” to uphold America’s rule of law? Mr. Johnson states that this is our only security! . . . In many cases our people are confused about what the law is. And many others want to change our laws, including our constitutional law. . . . Who is going to be willing to die for such confusion? Will such a deeply divided people sacrifice their lives for our republic and the rule of law? . . . Our people in Britain and America lack the will to even sacrifice a few soldiers’ lives to fight a ground war. Our generals know that we lack the will to win any hard-fought battle—even if it directly relates to our own freedom. For example, we had to be bombed into World War ii. Even one of the most diabolical leaders in history, Adolf Hitler, could not rouse us to fight until we were bombed by Japan.


STATE COURTS

Big Bucks Buying Supreme Court Decisions? W. Va. Case Is Pending

Campaign Finance -- But We're Talking Judicial Races, Here.

A Buzzflash News Analysis by Christine Bowman

7-28-08 -- Have you ever donated to the campaign coffers of a Supreme Court justice? Don't assume that others haven't. . . . Of course, US Supreme Court Justices John Roberts, Scalia and company are presidential appointees, which presents problems of its own in terms of political bias. But many Supreme Court justices serving at the state level must run for office. Not surprisingly, corporate lobbyists have jumped into some of those races in a big way. . . . As The Chicago Tribune reported Monday, corporate campaign donations to state-level candidates for Supreme Court justice slots are soaring. And in some instances, big donations are rolling in from lobbyist/donors that stand to gain a lot from specific decisions that elected justices are slated to make. . . . The Tribune details troubling big-money judicial races in Wisconsin, Illinois, Ohio, Louisiana and West Virginia. They note that $165 million has been spent in Supreme Court races nationally in the 1999-207 election cycles. Two candidates, alone, competing for a seat on the Wisconsin Supreme Court, spent $6 million combined in their recent contest. Of that, $4.8 million came from "outside groups." . . . The US Supreme Court is currently reviewing one particularly troubling West Virginia case where a state justice may have acted to protect a major campaign coffer source: . . . Arguments are pending on a petition to the U.S. Supreme Court that stems from the refusal of a West Virginia Supreme Court of Appeals justice to disqualify himself in a case involving a contributor who supported his election campaign with more than $3 million. The justice repeatedly ruled in favor of the contributor in a $50 million jury verdict against the contributor's company. . . . Theodore Olson, a former U.S. solicitor general who filed the appeal with the Supreme Court, said a "line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge." . . . One of the justices on the West Virginia court said the relationship between the contributor, a coal company executive, and Justice Brent Benjamin has "created a cancer in the affairs of this court. ... I shudder to think of the cynicism and disgust that lawyers, judges and citizens of this wonderful state will feel about our justice system," said Justice Larry Starcher.


FEDERAL COURTS

Another Case Pulled from Judge Manuel Real’s Docket

Posted by Dan Slater, WSJ Blog

7-24-08 --Things are bad and getting worse for U.S. District Judge Manuel Real. In March, we told you about Judge Real getting tossed from a securities fraud trial for allegedly aiding the prosecution. . . . Today, the NLJ reports that Ninth Circuit Court of Appeals has removed Real, 84, from the Honda class action, in which plaintiffs claim that the rear suspension systems of particular Honda and Acura vehicles are not of the “double wishbone” design, as promised by the makers. . . . In an unpublished, July 22 opinion, the Ninth Circuit revoked Real’s order certifying a nationwide class against Honda, saying the judge abused his discretion by certifying the class on his own “without making any findings regarding Rule 23’s requirements for class certification.” . . . As the NLJ notes, Real — who faced a potential impeachment hearing in Congress in April 2006 over allegations that he interfered in a bankruptcy case to help a woman whose parole he supervised — has seen at least eight of his cases snapped away by the 9th Circuit. (Congress wound up dropping the impeachment.)


WASHINGTON   

Impartiality key when picking judges

by Jeffrey G. Frank and Morris G. Shore for the Yakima Herald-Republic

7-20-08 -- Judicial campaigns are growing nastier, nosier and costlier. . . . For example, during the 2006 elections, the race between Washington state Chief Justice Gerry Alexander and attorney John Groen was marked by many negative and misleading third-party ads on both sides. Nearly $3 million was spent on Supreme Court races that year. . . . In West Virginia, the sitting state Supreme Court Chief Justice refused to recuse himself from a case in which the losing party's CEO spent over $3 million on that justice's election. The chief justice cast the deciding vote overturning the $50 million judgment against the CEO's company. Sadly, this is not a scene from a John Grisham novel. It is happening in a state with judicial elections not unlike our own. . . . It is this trend of large campaign contributions, and the attendant risk to the integrity of the judiciary, that led to the formation of the Washington Committee for Ethical Judicial Campaigns. Our specific mission is to promote preservation of public trust and confidence in the judiciary by encouraging fair and ethical campaigns for State Supreme Court and Court of Appeals positions. Similar groups have been formed in many other states as the problem of over politicizing judicial campaigns is not unique to our state.


NEW JERSEY  

2 Indicted in Ticket Case

By The Associated Press

7-15-08 -- A former Jersey City judge and a former court administrator have been indicted on charges that they fixed parking tickets. . . . Wanda Molina, a former Municipal Court chief judge, is accused of dismissing eight parking tickets for her companion. A grand jury also found evidence that the former court administrator, Virginia Pagan, fixed 215 tickets for herself and her daughter. . . . Both stepped down last year and would face at least five years in prison if convicted of official misconduct and tampering with and falsifying public records. . . . The judge’s lawyer said she should be censured, not indicted. Ms. Pagan’s lawyer said she does not intend to plead guilty.


CALIFORNIA  

Fearing Political Backlash, Judges Decide to Go Public

Nasty campaigns and California's gay marriage ruling lead to first forum of its kind

Pamela A. MacLean, The National Law Journal

7-14-08 -- The rise of nasty political campaigns targeting elected state judges nationally, coupled with the cost of judicial elections and a potential backlash over the gay marriage decision, has prompted California's chief justice to hold the first public forum on preserving impartial courts. . . . Chief Justice Ron George set out to head off rancorous judicial election contests by launching public discussion of the role of judges in a forum on "Preserving Impartial Courts in California." . . . Two former California governors with differing judicial philosophies -- Pete Wilson, a Republican, and Gray Davis, a Democrat -- are the main speakers. . . . "To stick our heads in the sand and ignore the problem would be the worst," said Judge Ira Kaufman of the rural Plumas County Superior Court, who is president of the California Judges Association and a forum participant. . . . There has been a ramping up of rhetoric nationally in recent years, said Laurie Levenson, a professor at Loyola Law School, Los Angeles and a participant in the scheduled Tuesday forum in Sacramento, Calif.


DISTRICT OF COLUMBIA  

The Murphy Court: Human Life Has No Value

By Phil Hart, NewsWithViews.com

7-12-08 -- If the courts want to be respected, they need to be respectable. And if the courts are not respectable, the people will view them with contempt. The case of Murphy v. The IRS, 460 F.3d 79 (D.C. Cir. 2006) rehearing 493 F.3d 170 (D.C. Cir. 2007) allows us feel first respect, and later, contempt for the court. . . . It has been a year since the Appellate Court for the District of Columbia overturned their brilliant opinion in the Murphy Case, and gave us in its place a mediocre one at best. Since then, Murphy’s attorneys appealed to the Supreme Court, but the Supreme Court did not take up the appeal. . . . Why the Appellate Court issued their mediocre opinion on July 3, 2007, the day before Independence Day, I don’t know. Maybe it served as a warning that we are indeed in trouble; for what was going on in the colonies in 1776 is going on in America today. When you compare the first opinion of the court given to us on August 22, 2006 with that of the replacement ruling issued on July 3, 2007, it is clear that the court was protecting the government on an unlevel playing field. It is also clear that we have today in America the same “mock trials” that Thomas Jefferson complained about in the Declaration of Independence. . . . So on this anniversary of the issuance of that mediocre ruling; let’s take another look at the Murphy Case. And for those of you who have not read my September 13, 2006 article, we will review the facts of the Murphy Case. . . . What is the “Murphy Court” and who is Murphy? . . . Marrita Murphy is a whistleblower who, in 1995, reported some environmental problems at a New York Air National Guard base. Her whistleblower actions got her fired and “blacklisted.” The entire ordeal was stressful for Ms. Murphy and she sued her former employer. Lawyers from the National Whistleblower Center (NWC) successfully prosecuted the case. On Dec. 11, 1995 an administrative law judge awarded Ms. Murphy $70,000--$45,000 for “emotional distress or mental anguish” and $25,000 for “injury to professional reputation”. Murphy received her award Oct. 25, 1999. . . . Reluctantly, Murphy reported the $70,000 compensatory award on her 2000 income tax forms and paid tax on that “income”. She then filed for a refund. The IRS had determined that Murphy’s award was subject to being taxed as income even though her court-ordered award was intended to make her, as a damaged party, “whole” again. No additional punitive damages were awarded.


NEW JERSEY  

Jersey City chief judge indicted in ticket-fixing scheme

by Rick Hepp/The Star-Ledger

7-14-08 -- A state grand jury today accused former Jersey City Chief Judge Wanda Molina of dismissing eight tickets for a "close personal companion" in an indictment that charges her with official misconduct as well as tampering and falsifying public records. . . . Former Jersey City Municipal Court Administrator Virginia Pagan was also charged today in a separate indictment with dismissing 215 parking tickets that had been issued to her and her daughter. The potential fines on the tickets exceeded $5,000. . . . "When court officials engage in ticket fixing, it shakes the faith of average citizens who pay up when they get a ticket," Attorney General Anne Milgram said in a written statement. "Today's indictments send a message that these defendants are not above the law and there is indeed one system of justice to which all must answer." . . . Molina resigned last September after a probe by state Superior Court administrators, who have oversight of municipal courts, found she improperly disposed of parking tickets for her female companion.


History and the Judiciary

By Paul M. Weyrich

7-11-08 -- I am neither an attorney nor an expert in Constitutional law. Others have been good enough to say I am a good strategist. If so, then I would like to share my perspective of the current state of the judiciary. I have listened as a debate is occurring over the proper powers of the courts and the tendency of some Americans to cede to the advocates of unrestrained judicial power victories to which they are not entitled. . . . I am occasionally referred to as a "founder of the modern conservative movement.”  Such an honor places upon me and others to whom such a description applies a special duty to warn our fellow citizens. Americans today are witnesses to the realization of the great fear of our Founding Fathers: the passing away of government “of the people, by the people, for the people,” as President Abraham Lincoln stated, in the United States of America. With respect to the courts, we need a revival of the rule of law based upon the constitutional principles laid down by those who founded this nation. . . . Our forefathers gave their lives to liberate us from the rule of a British Parliament unelected by the American colonists: . . . Governments are instituted among Men, deriving their just powers from the consent of the governed.... But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government.... (Emphasis added.) . . . The grand formalities of American election rituals hide a glaring fact: Americans can no longer claim that we are our own rulers in every circumstance in which we are empowered to be. Regardless of our votes, the defining judgments in our collective and personal destinies often are made by persons whom the American people have not elected to rule. . . . We gave judges their robes and gavels so that they might resolve specific disputes between specific plaintiffs and defendants. We never gave them authority to issue commands to our elected lawmakers, forcing us down roads which we have not chosen to travel. Judges have no constitutional authority to make laws or to amend our national and state constitutions. They have no authority to redefine words and concepts in our laws to mean what they and their ideological partisans wish for them to mean.


January 2008

Will Activist Judges Just Please Come the Heck
out of Their Gay Closets?

Dave Muskera, M.A.

01-28-08 -- "Activist Judges". The sound or sight of this phrase sets my teeth on edge. What the hell does it mean? What is its opposite!? An in-activist judge? A judge asleep on the bench? Of course, anyone who reads or is otherwise exposed to the mainstream media has heard this phrase used over and over as if it had some real substantial meaning. Media pundents and others with an agenda (and most often of a single political persuasion) beat the activist judge drum every time a judge (from state levels all the way up to the US Supreme Court) makes a decision with which they disagree. But surely, anything said so often should convey something of substance. Not just disagreement. Right? Well, I guess it does in some ways - though there are those who argue that the actual measure of its substance is more akin to the substantialness of the air in a hot air balloon. And you might also note that the term is almost always used in a pejorative sense. It is not typically a compliment.




United Civil Rights Councils of America

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“At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account."
 -- Thomas Jefferson (letter to Monsieur A. Coray, 31 October 1823)--

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Originally Inaugurated: December 17, 2006
Updated: 01/25/2012