A Few State-Level Judicial Updates

Here’s an update on a few state-court-related issues the Judicial Crisis Network is tracking.

Indiana: On Friday, a state panel selected three nominees to fill a vacancy on the Indiana Supreme Court: Marion Superior Court Judge Robyn Moberly, Boone Circuit Judge Steven David, and Indianapolis attorney Karl Mulvaney. Under the terms of Indiana’s version of the Missouri Plan, Gov. Mitch Daniels now has 60 days to decide which nominee to appoint. As Prof. Gerald Bradley, John Drake, and Paul Herald explain in this op-ed:

Lest there be any doubt about the importance of the Indiana Supreme Court, in recent years it has upheld the state’s voter ID law and dismissed abortion providers’ challenge to an informed consent law — a decision from which Boehm dissented. The court decides hundreds of cases every year in all areas of the law. It also has exclusive jurisdiction over appeals of death sentences or a sentence of life without parole, and, unlike federal courts, the court has the power to decrease or increase criminal sentences.

Conservatives who see Daniels as a potential presidential nominee will be watching with interest.

California: Gubernatorial candidate Meg Whitman is capitalizing on the most recent California Supreme Court vacancy to criticize Jerry Brown’s record of judicial appointments. As many NRO readers will remember, then-governor Brown made history in the 1980s when three of his appointees to the Supreme Court — Chief Justice Rose Bird and associate justices Cruz Reynoso and Joseph Grodin — became the first three justices in California history to be removed by the electorate through the state’s reconfirmation process. The unpopularity of the justices stemmed from the perception that they were judicial activists (which, in fact, they were). Chief Justice Bird, for example, never once voted to uphold a death sentence. According to Whitman:

A governor’s judicial nominees speak volumes about their guiding principles. Moreover, these appointees — and their decisions — live long after the governor who appointed them has left office . . . . My opponent has a track record of appointing some of the very worst. Though he has been out of the governor’s office for nearly three decades, California is recovering from decisions made by Jerry Brown’s liberal, soft-on-crime, activist judges.

As the Federalist Society’s blog points out, Whitman is echoing that message in a compelling new video.

Whitman’s focus on Brown’s record as governor comes just a week after the Competitive Enterprise Institute released a study naming Brown the worst attorney general in the country.

Whitman deserves credit for drawing attention to judicial issues. It is highly likely that whoever wins this race will go on to fill several vacancies on the state’s highest court and many more on the lower courts. That matters, especially when one considers the fact that California’s economy is one of the largest in the world, and that the most visible effort to legalize gay marriage started when the California Supreme Court ruled 4–3 that gay marriage is a fundamental right.

New Jersey: Governor Christie’s nomination of Anne Patterson to the New Jersey Supreme Court remains in limbo as Senate President Steven Sweeney continues to block confirmation hearings. Meanwhile, Governor Christie has taken the bold step of refusing to reappoint Justice John Wallace (the New Jersey constitution requires judges to stand for reappointment seven years after their initial appointment), arguing that he wants to remake the New Jersey Supreme Court. Wallace, the governor says, was part of the out-of-control court that put the state on the path to fiscal ruin by dictating tax and spending policy from the bench. As Christie explained at a recent town hall (video here), “If people wonder why I want to change the Supreme Court, it’s because I don’t have the flexibility to change the school-funding formula if the same people at the Supreme Court who have been making these decisions stay there.” Christie continued, “They’ve taken the power out of the hands of the legislature to make this judgment and out of the hands of the governor, and the courts are making it. Well, that’s wrong. If judges want to legislate, they should run for the legislature.”

Senate President Sweeney was so upset by Christie’s decision to replace Wallace, apparently a friend of his , that he vowed to prevent Patterson’s nomination from being considered by the Senate. It is too early to tell whether Sweeney will decide to let Patterson through and spend his political capital fighting a recent ruling that a board he oversees “circumvented the Sunshine Law over 50 times in the past few years.” Court watchers in the state expect Patterson’s nomination to go through — eventually. You can learn more about John Wallace and Anne Patterson here.

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