by TChris

Linda Greenhouse provides an update on the workings of the Supreme Court in the absence of the Chief Justice.

Information from official channels has been minimal. The court's press office would not say whether the chief justice was present for the justices' regular Friday morning conference, at which they review new cases and decide which to grant. (He was not.) Nor would the press office say whether, if he did not attend, he sent in his votes. (He did.)

If the Chief Justice decides to retire while the Senate is in recess, Greenhouse suggests that the President might use a recess appointment to bypass Senate confirmation of the appointment.

Earlier news reports that incoming Senate Judiciary Chair Arlen Specter warned President Bush about extremist judicial nominations are false. Specter today laid to rest any hope that he would be a balanced, non-partisan leader on judicial nominations:

“Contrary to press accounts, I did not warn the President about anything and was very respectful of his Constitutional authority on the appointment of federal judges.

“As the record shows, I have supported every one of President Bush’s nominees in the Judiciary Committee and on the Senate floor. I have never and would never apply any litmus test on the abortion issue and, as the record shows, I have voted to confirm Chief Justice Rehnquist, Justice O’Connor, and Justice Kennedy and led the fight to confirm Justice Thomas.

by TChris

Judges need to send the message that they take their jobs seriously, and they need to maintain the appearance of neutrality. So what's up with this?

A judge welcomed a former fugitive back to her courtroom with balloons, streamers and a cake before sentencing him to life in prison. "You just made my day when I heard you had finally come home," Judge Faith Johnson told Billy Wayne Williams, who had been convicted in absentia of aggravated assault after he disappeared a year ago. "We're so excited to see you, we're throwing a party for you."

Before he was brought into the courtroom on Monday, the judge directed staff members as they placed balloons and streamers around the courtroom. A colorful cake was decorated with his name and one candle to signify the year he spent on the lam.

A life sentence is nothing to joke about. With good reason, the defendant was not amused.

"It seems like everyone wants to have a party, and it's fun for you people, but not for me," Williams told reporters as he was led away in handcuffs.

Fortunately, there are some thoughtful individuals in Texas who recognize inappropriate judicial behavior. One of them is Seana Willing, executive director of the Texas Commission on Judicial Conduct, who found the incident troubling.

"It's the kind of thing I look at and scratch my head and wonder, `What was she thinking?'" Willing said. She questioned whether the party violated standards of decorum and impartiality. "The whole purpose of it was to mock him, to make him feel bad. I guess she could have put him in the stockade, in the pillory, in front of the town square and let people mock him," Willing said.

Maybe it's not good to give Judge Johnson any new ideas.

by TChris

Chief Justice Rehnquist was admitted to Bethesda Naval Hospital on Friday, where he underwent surgery on his trachea after being diagnosed with thyroid cancer. Our best wishes to the Chief Justice for a strong recovery.

The Chief Justice's ill health underscores the importance of next week's presidential election. Only Justice Thomas is younger than 65. The next President might make multiple appointments to the Court. President Bush's nominees to the lower courts have often been out of the mainstream. John Kerry, if elected, is more likely to exert a balancing influence on the federal courts generally, and on the Supreme Court in particular.

Update: Here are the facts on thyroid cancer, from the National Cancer Institute.

Companion articles in today's Recorder examines the likely differences in the replacement of the Supreme Court Justices in a Bush Aministration and a Kerry Administration. It describes each potential choice and the reasons for their selection.

The short list for Bush:

4th Circuit Judges Judges J. Harvie Wilkinson III, and J. Michael Luttig, ; Former Deputy Attorney General Larry Thompson; former Solicitor General Theodore Olson; White House Counsel Alberto Gonzales

The short list for Kerry:

D.C. Circuit Judge David Tatel, former Solicitor General Drew Days, Second Circuit Judge Sonia Sotomayor, California Chief Justice Ronald George and former Stanford Law School Dean Kathleen Sullivan.

Adam Cohen in today's New York Times opines on just how awful a Bush re-election will be to the future of our Supreme Court.

by TChris

During the debates, President Bush announced that he has only one test for judicial appointments: he won't appoint "activist" judges. Of course, those who toil in the federal courts recognize that many of the conservative judges he favors pursue an activist philosophy. When the Fourth Circuit decides that the Miranda decision doesn't mean what it says, that's activism. When the Seventh Circuit decides that failing to hire a pregnant woman for fear that she won't return to work after having her baby isn't pregnancy discrimination, that's activism. And when Republican-appointed judges refuse to enforce environmental laws, that's activism.

A report (pdf) by the Environmental Law Institute examines the judicial response to lawsuits filed under the National Environmental Policy Act, a 1970 law that requires federal agencies to produce environmental impact statements before undertaking a project that might have a significant environmental impact.

Federal judges appointed by Democratic presidents are at least three times more likely than those appointed by Bush to rule in favor of plaintiffs who sue the federal government for violating certain environmental regulations, the report found. ... The report shows that federal district judges appointed by a Democratic president ruled in support of pro-environment NEPA cases 60 percent of the time, while GOP-appointed judges ruled in support 28 percent of the time. (The Bush appointees, by comparison, only ruled in favor 17 percent of the time.)

Bush appointees constitute 23 percent of active federal judges. Can the country afford to have President Bush choosing activist judges for another four years?

People for the American Way (PFAW) have a new campaign, Four More Years or Forty More Years? It's talking points...and has an animated video section, Flash the Court. There's a contest going so if you think you can create a better flash on the subject, go ahead.

Voters need to understand how critical this election is to their future, and the future of their children:

The Arizona Republic today points out one of the most critical reasons to vote this year--one that I think makes a vote for Kerry imperative over a vote for Bush. Our Supreme Court. For the next forty years.

A new justice has not been named to the U.S. Supreme Court for more than 10 years, the longest such period since 1823. But speculation that as many as four of the nine court members might retire during the next presidential term, including Chief Justice William Rehnquist, means that whoever is elected president on Nov. 2 could have a profound impact on the high court for a generation or longer through his nominations of successors.

Among the issues the court likely will consider during the coming years:

A new study shows

A study of thousands of federal court cases has found that judges appointed by President Bush are the most conservative on record in the areas of civil rights and civil liberties. The study's authors say the re-election of Bush would give U.S. courts a strong rightward tilt that could last for years.

Here's the details:

If this is indicative of the quality of jurisprudence we can expect from Bush's judicial picks, we're all in trouble:

A federal appeals court on Tuesday tossed out a ruling issued last year by U.S. District Judge Arthur J. Schwab after ruling that the judge had copied his opinion, nearly word-for-word, from a memorandum written by one of the attorneys in the case. The 3rd U.S. Circuit Court of Appeals said Schwab made only two substantive changes to the memo, other than minor changes for grammar and style, then signed it as his own opinion.

In doing so, the court said, Schwab failed to show that he put the necessary thought and jurisprudence into the ruling. The appeals court ordered the lower court to rethink its ruling, which had dismissed a lawsuit filed by a man whose daughter was murdered in 2001 by a man on probation for a related crime against the same family. The father sued Westmoreland County probation officers for not doing enough to keep the killer, Charles Koschalk, away from Annette Bright.

Schwab's opinion to dismiss the case was taken from a "proposed opinion" submitted by attorneys for the county. He said in a written statement that he wouldn't make a similar mistake again.” ....Schwab issued the ruling eight months after President Bush appointed him to the bench in January 2003.

by TChris

The Senate today blocked confirmation of William Myers to the Court of Appeals for the Ninth Circuit. Only 53 Senators voted to cut off debate, fewer than the 60 required. TalkLeft background on Myers is here.

Myers is the first nominee opposed by Senators primarily on environmental grounds, and the first to be formally opposed by Native American groups. As an activist lawyer and lobbyist for the mining and beef industries, and later as the top lawyer at the Interior Department, Myers launched sweeping attacks against fundamental environmental protections such as the Clean Water Act and Endangered Species Act.

The next battle: Three Michigan judges nominated to the Sixth Circuit -- Richard Griffin, David McKeague, and Henry Saad -- were approved by the Judiciary Committee on 10-9 party-line votes. Sens. Carl Levin and Debbie Stabenow, both of Michigan, may seek a filibuster to prevent their confirmations.

In a written statement, Sen. Patrick Leahy, D-Vt., the committee's highest-ranking Democrat, said it was the first time in 50 years that the committee had ignored the objections of both home-state senators. Leahy added that Democrats are concerned about Griffin and McKeague's decisions in several labor and environmental cases.

Update: The post has been corrected to reflect the actual vote tally, which appears here. Thanks to Howard Bashman for spotting the error.

by TChris

A former district attorney who was elected to a judgeship won't be wearing the robe any longer, after entering "no contest" pleas to charges that he molested his 10-year-old daughter at a Hillary Duff concert in Wilkes-Barre, Pennsylvania. Mark Pazuhanich was still serving as DA when the crime was committed. He was sworn in as a judge on the Monroe Court of Common Pleas about a month later.

[H]e served as judge only a few weeks in a diminished capacity until taking administrative leave in early February. He has continued to draw his $124,000-per-year salary.

Pazuhanich resigned his position on the bench Monday morning, when he entered his pleas. He was placed on probation for ten years.