Barwatch Bulletin -- February 13, 2009

February 13, 2009

February 17, 2009

Merit Selection Defense Campaign

Friday morning's featured a panel sponsored by the ABA's Coalition for Justice entitled "The Anatomy of A Successful Merit Selection Defense Campaign."  The panel was co-sponsored by the American Judicature Society.  Participants included Greg Musil, Johnson Countians for Justice (Kansas); Crista Hogan, Springfield Metropolitan Bar Association (Missouri); Charlie Hall, Justice at Stake Campaign, and moderator Seth Andersen, Executive Vice President of the American Judicature Society.

Crista Hogan distributed information at the event discussing a plan of action to take to be successful in advocating for merit selection of judges based on her experience in Greene County, Missouri.  Hogan suggests making the public face of a merit selection push be a non-lawyer, preferably an influential business leader.  The  bar should be involved "early and often" and campaigns should rely heavily on volunteers.
 
The February edition of ABA Watch features a piece on the various difficulties and victories merit selection of judges has faced on the state level and the current policy of the ABA to advocate for a similar system on the federal level.  A full transcript of today's panel will be available soon.     

The New Administration, the New Congress, and the Federal Judiciary

Friday afternoon featured a panel devoted to discussing the effects that the new Administration and Congress will have on the Federal Judiciary.  The Panel was sponsored by the ABA's Judicial Division, and featured Hon. Eleanor D. Acheson, former assistant attorney general for policy development in the Clinton administration, James D. Cuff, Director of the Administrative Office of the United States Courts; Hon. D. Brock Hornby, United States District Court (Maine); and Dean Kenneth W. Starr of Pepperdine University School of Law.  The panel was moderated by Professor Judith Resnik of Yale Law School. 

Hon. Brock Hornby began by discussing some of the things that have changed in the federal judiciary in recent years.  Hornby mentioned that service in the federal judiciary is no longer viewed as the pinnacle of a legal career.  The "salary gap" judges are faced with, increased longevity, and the ever changing tasks that federal courts must now handle have all contributed to this view, according to Hornby.  Hornby also discussed technology's effect on the occupation, with electronic documents, webcasting, and even virtual trials in some cases, all changing the way courts function.  Hornby did say that he is pleased with some recent developments, including the effort to give sentencing discretion back to the courts, something he hopes will continue in the new Administration.  However he fears that the court has increasingly came to be viewed as a political branch, a precedent he hopes does not continue.

James Duff addressed some of Hornby's concerns and laid out the measures his office will take to address what he sees as deficiencies in the federal court system.  He specifically hopes to address the salary gap that federal judges are faced with.  Duff discussed the nearly successful attempts to remedy this problem, which were attached to a housing bill last summer.  He also showed his dismay at congress for not providing a cost of living adjustment (COLA) to the federal judiciary, while doing so for all other federal employees. 

Beyond compensation issues, Duff discussed his hope that the federal judiciary will increase cooperation with the other branches on finding solutions to complex problems facing the nation.  Kenneth Starr seconded Duff's comments, referencing the spirit of the Office for Improvements in the Administration of Justice, under Griffin Bell and his successors.  He also mentioned previous "Brookings Seminars" that met in Williamsburg, where members of the three branches could come together off the record and discuss important issues.  "Care and concern about the administration of justice" is a vision worth recreating, said Starr. 

Hon. Eleanor D. Acheson agreed with Starr's observation and noted the tensions between the Department of Justice and the federal judiciary that she saw while serving in the Clinton administration.  Acheson hopes to see more interaction between the Department of Justice and the federal judicial conference in the new administration. 

The panel topic then shifted to state courts, with all panelists acknowledging the importance of state courts and the challenges they face with state deficits becoming more of a problem.  Arizona Supreme Court Justice Scott Bales voiced his concerns about "how to preserve access to justice when courts are being pared," using the limited operation of courts taking place in California and New Hampshire as examples.  Bales also spoke about the "politicization" of the state courts due to the increase in special interest money being spent in judicial elections.   

Associate Justice Patricia Simmons Goodson, who was also in attendance, voiced her support for public financing of judicial elections, a system recently adopted in North Carolina, as a means to depoliticize state courts.  

The panel closed by foreshadowing an improvement in the view of the Department of Justice and the federal judiciary.  Duff speculated that the ABA will "have a more important impact in the new administration, perhaps."  The panel also commended Attorney General Holder for his previous involvement in the ABA and retired Supreme Court Justice Sandra Day O'Connor for her work on educating the public about the role of the judiciary. 

 

A Look Back at the 2008 Elections

Friday afternoon also featured a roundtable discussion sponsored by the Standing Committee on Election Law, entitled "Make Sure Your Vote Will Count:  A Look Back at the 2008 Elections and What's on the Horizon."  The discussion was led by Estelle Rogers, of Project Vote, and Jocelyn Benson, professor of law at Wayne State University.  John C. Keeney, Jr., chairman of the committee, moderated the discussion. 

The roundtable began with a discussion of early voting measures in the 2008 Election.  Both panelists agreed that early voting was a success and that it did help to improve efficiency at polling places and increase overall voter turnout. Some audience members voiced opposition to early voting, saying that it degrades the "cultural value" of voting, and that early voting may be dangerous in situations where a candidate's record has not been completely revealed by the time of early voting.  Both panelists agreed that these were definite concerns that voters should take into account before deciding to cast an early vote.  Robinson Everett, a Professor at Duke Law School, commented that early voting did increase turnout significantly in his home state of North Carolina. 

Benson proposed a universal registration system as a possible solution to voting issues.  She said it could serve as an apolitical solution that would rise above some of the partisan rhetoric.  Rogers, an attorney for Project Vote, which represents ACORN, commented that ACORN is in favor of universal registration.  However, said Rogers, unlike the European nations that have a universal system, the United States has no national ID card, which would make universal registration difficult to implement.

The panelists also discussed same day registration measures, with Benson maintaining that same day registration can help increase voter participation, but thinks an identification measure must be in place to ensure its adequacy.   However, several audience members raised concerns about ID requirements being a hindrance to voter turnout, especially for the indigent.

Several alternatives to improve problems with military members casting their vote were discussed.  Benson, who has studied several measures by secretaries of state across the nation, mentioned that an online system has been proposed in places such as Alabama.  She also mentioned the possibility of voting kiosks being available at military bases. 

The discussion also covered the problems that are present with provisional ballots.  Rogers and Benson both agreed that the provisional ballot system has been flawed in many cases.  Rogers took issue with the system, saying that something is "wildly wrong," using poll workers reluctance to use the system as an example.  Keeney agreed with Roger's notions, saying that "provisional ballots can cause voter confusion" based on his experiences.

The panel concluded with agreement from the panelists and the audience that voting is complex issue that requires a "balance between access and promoting integrity."