Friday, September 12, 2014

Texas Voter ID Law on Trial in U.S. Court

      Update: Wisconsin will be allowed to put its voter ID law into effect for the November elections following an interim ruling by the Seventh U.S. Circuit Court of Appeals on Friday [Sept. 12]. The panel of three Republican-appointed judges Frank Easterbrook, Diane Sykes, and John Tinder lifted a ruling by a lower court judge that found the law racially discriminatory in violation of the Equal Protection Clause and the federal Voting Rights Act. The unsigned order said “the state’s probability of success” was “sufficiently great” to allow the state to implement the law pending a final decision on its appeal.   
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      The law has long recognized the common-sense assumption that a person intends the natural and probable consequences of one’s actions. So, in law and in common sense, Texas legislators must have intended to make it harder for African Americans and Latinos to vote when they passed the nation’s most stringent voter ID law three years ago.
     However self-evident that proposition may be, lawyers for civil rights groups, the U.S. government, and the state of Texas have spent much of the past two weeks arguing about it in a federal court in Corpus Christi. The trial, expected to conclude with final arguments later this month, is perhaps most critical test of the federal Voting Rights Act since the Supreme Court’s decision one year ago to remove the law’s most powerful enforcement provision.
     Before the decision, Texas was one of the half a dozen Deep South states subject to a requirement to “preclear” any changes in election law with the Justice Department or a federal court based on the state’s past history of voting discrimination. The Supreme Court’s decision in Shelby County v. Holder (2013) struck that provision — known as section 5 — on the ground that it was out of date. As a result, civil rights groups or the federal government now can challenge voting changes that disadvantage minority voters only under the act’s nationwide provision, section 2, which requires proof of intentional discrimination.
     Before Shelby County, a federal court in Washington had refused to allow Texas’ voter ID law to go into effect. After the Supreme Court decision, Gov. Rick Perry immediately moved to put the law into effect. Civil rights groups then joined with the Obama administration in filing suit to block the law under the Voting Rights Act’s section 2.
     The plaintiffs’ case against the law consists of evidence both anecdotal and statistical showing that the voter ID requirement could disenfranchise up to 1.2 million eligible Texas voters, with a far greater impact on African Americans and Latinos than on white voters. The statistics convincingly show the disproportionate impact on minorities. Stephen Ansolabehere, a professor of government at Harvard, said an examination of state data bases indicated that 12 percent of blacks and 9 percent of Latinos lack the kinds of ID needed to satisfy the law and only 4 percent of whites.
     More compelling are the individual accounts from would-be minority voters forced to go through bureaucratic hoops to try to comply with the law. Lead-off witnesses when the trial began on Sept. 2 were two elderly African Americans, both old enough to remember the era of overt racial discrimination in voting in the South.
     Sammie Bates, a 74-year-old grandmother, recalled helping her grandmother count out the money needed to pay the $2 poll tax in her native Mississippi. Under the Texas law, Bates had to spend far more —  $42 to get a copy of her birth certificate as needed to obtain an election ID because she had no other government-issued photo identification.
     Floyd Carrier, an 83-year-old veteran, testified that he tried to vote in November 2013 by presenting an expired driver’s license, a VA card, and his previous voter registration card. Poll workers recognized him, but refused to let him vote because none of those IDs satisfied the law. He went on to pay for $24 for a birth certificate, but it came back with mistakes.
     In theory, the law seems to give Texans ample opportunities to prove their identity in order to vote. Government-issued photo IDs that satisfy the law include a valid Texas driver’s license or state-issued ID card or a U.S. passport, military ID, or citizenship certificate.
     Tellingly, the legislature also allowed a concealed handgun permit to satisfy the law, but not a student or government-worker ID. Allan Lichtman, a historian at American University in Washington, cited those and other provisions as showing that legislators deliberately made it easier in practice for whites and harder for minorities to satisfy the law based on data readily available to them at the time.
     Without any of the specified IDs, the would-be voter needs a birth certificate to get the special election ID. Discrepancies on the birth certificate may be disqualifying, and in any event the would-be voter — with no driver’s license — has to travel to a Department of Public Safety office to get the election ID. Legislators representing African American and Latino districts testified about the problems their constituents have encountered trying to meet the requirements.
     For their part, state officials say they have tried to publicize the law’s requirements and to assist would-be voters in complying. But evidence showed that the state has spent only $400,000 in that effort and to date has issued only 266 election IDs.
     Texas is only one of seven states defending voter ID laws in federal courts. Two other cases are further along. A federal district court struck down Wisconsin’s law; the Seventh U.S. Circuit Court of Appeals is hearing arguments today [Sept. 12] in the state’s appeal. The lower court upheld North Carolina’s law; the Fourth Circuit is expediting the plaintiffs’ appeal.
     In the Texas case, Judge Nelva Gonzales Ramos, an Obama appointee, is scheduled to hear final arguments from the lawyers on Sept. 22. She has not indicated when she is likely to rule.

Sunday, September 7, 2014

False Advertising on Abortion Clinic Laws

      If state legislatures could be sued for false advertising, lawmakers in four Southern states would be facing stiff penalties for the recent spate of laws regulating women’s reproductive health clinics. Alabama, Louisiana, Mississippi, and Texas are among the states to have recently enacted stringent regulations on abortion clinics, ostensibly to protect women’s health but evidently to try to shut the facilities down altogether.
       Federal courts have seen through the subterfuge in all four states, most recently in Texas. A federal judge in Austin has blocked major provisions of Texas’s new law that impose hospital-like building requirements on the outpatient facilities and require clinics’ physicians to have admitting privileges at local hospitals. Federal courts have put similar laws on hold in the three other southern states as well as North Dakota and Wisconsin.
       In his interim ruling issued Aug. 31, U.S. District Court Judge Lee Yeakel said that the regulations, if put into effect, would reduce “meaningful access” to abortion care for women throughout Texas, especially for poor, rural, and disadvantaged women. Yeakel said the regulations were unnecessary because abortions are “extremely safe with particularly low rate of serious complications and virtually no deaths on account of the procedure.”
       Based on those findings, Yeakel said the law runs afoul of Supreme Court precedents prohibiting abortion regulations that have an “undue burden” on women’s constitutionally protected right to the procedure. While unnecessary to his ruling, Yeakel concluded that the new building requirements in particular — likely to cost a clinic $1 million or more — were “intended to close existing licensed clinics.”
       Yeakel noted that the law grandfathered existing outpatient surgery centers that perform far riskier procedures. In other cases, courts have noted that admitting privileges for abortion providers are unnecessary and that hospitals can deny admitting privileges for any number of reasons, including opposition to abortion.
        Yeakel’s ruling is setting up a showdown of sorts at the Fifth U.S. Circuit Court of Appeals, the federal appeals court with jurisdiction over Texas and two of the three other southern states with similar litigation in recent months: Mississippi and Louisiana. A three-judge panel will hear arguments on Friday [Sept. 12] in the state’s effort to lift Yeakel’s injunction.
       The Fifth Circuit, perhaps the most conservative of the federal appeals courts, greenlighted the Texas law in an initial ruling in March. But a different three-judge panel blocked Mississippi’s admitting-privileges law from taking effect in a split decision issued on July 29.
       The two panels came to different conclusions in part based on different factual contexts. In the Mississippi case, the court found that the law would shutter Mississippi’s only existing abortion clinic (Jackson Women’s Health Organization v. Currier). The majority in that decision noted that in the Texas case a different panel had allowed the Texas law to take effect after finding that some number of abortion clinics would remain open in the state (Planned Parenthood of Greater Texas v. Abbott).
       The different results also reflect the different composition of the two appellate panels. The decision in the Texas case was written by Judge Edith Jones, a Reagan appointee and strong conservative who was on President George W. Bush’s short list for a Supreme Court appointment; two Bush43 appointees joined the decision: Jennifer Elrod and Catharina Haynes. The Mississippi decision was written by E. Grady Jolly, a Mississippian appointed by Reagan, and joined by Obama appointee Stephen Higginson; the dissenter was Emilio Garza, a strong conservative appointed to the district court by Reagan and elevated to the Fifth Circuit by Bush41.
       Yeakel had initially found the Texas law unconstitutional, but the Fifth Circuit panel ruled the measure was not unconstitutional on its face. That decision allowed Yeakel, however, to hear the pleas from individual clinics that the requirements would have unconstitutional effects as applied to them. In his new decision, Yeakel found that the law would leave the nation’s second largest state with only seven or perhaps eight abortion clinics, all in major metropolitan areas. He noted in particular that West Texas and the Rio Grande Valley would have none. Based on his injunction, the McAllen clinic was to reopen on Sept. 6.
       In acknowledging that effect, the state’s lawyers suggested that women in West Texas could drive across the state line to New Mexico, which has no comparable law. As Yeakel noted, that stance undermined the state’s argument that the law was needed to protect women’s health.
      Yeakel also skewered the state’s defense that even with the law in effect, 86 percent of Texas women would be within 150 miles of an abortion clinic. That distance was a considerable burden of itself, Yeakel said, and the burden would be all the greater because of a separate Texas law requiring a 24-hour waiting period before an abortion.
      The Texas law — known as HB 2 — was enacted in 2013 only after the nationally-watched filibuster by state senator Wendy Davis, who is now running for governor as the Democratic nominee against the state’s Republican attorney general, Greg Abbott. The case cannot be understood without recognizing the political context.
      As Yeakel notes, a woman’s right to an abortion remains controversial 40 years after Roe v. Wade; Texas’s law, he said, would operate just as drastically as a complete ban on abortions. The nation’s eyes will be upon Texas to see whether the tactic can succeed.

Friday, August 29, 2014

Bad Day for Lawyers Defending Gay Marriage Ban

           Update (Sept. 2): Gay marriage advocates are virtually guaranteed another federal appeals court victory after the selection of the three-judge panel to hear arguments on cases from three states next week. The Ninth Circuit Court of Appeals announced on Sept. 1 that the panel to hear Hawaii, Idaho, and Nevada cases will include Judges Stephen Reinhardt, Marsha Berzon, and Ronald Gould. All three have written or joined significant gay rights decisions. Reinhardt wrote and Berzon joined the decision requiring heightened scrutiny for laws based on sexual orientation (Smith-Kline v. Abbott); Gould wrote a decision overturning the discharge of a lesbian servicemember (Witt v. Dep’t of Air Force). Arguments in the three cases are set for Sept. 8.
* * *

     The future of marriage rights for same-sex couples does not depend on the outcome of the legal challenges to the bans enacted in Indiana and Wisconsin. So gay rights advocates can allow themselves to feel sympathy for the state’s attorneys who bravely tried to defend the measures this week [Aug. 26] before a relentlessly dubious panel of federal appeals court judges.
      Indiana’s solicitor general Thomas Fisher and Wisconsin assistant attorney general Tim Samuelson had trouble getting any words in edgewise during separate, hour-long sessions before the Seventh U.S. Circuit Court of Appeals. Led by the Seventh’s Circuit idiosyncratic conservative Richard Posner, the three judges peppered Fisher and Samuelson virtually nonstop with questions — or outright assertions — challenging any of their rationales for prohibiting same-sex couples from marrying.
      The Seventh Circuit discloses the judges randomly selected for panels only on the day of argument; so Fisher and Samuelson had no advance warning of just how rough their time at the lectern was going to be. The court is overwhelmingly Republican, with 10 of the 14 active and senior judges appointed by GOP presidents.
      The panel selected, however, could not have been more favorable for the gay and lesbian plaintiffs looking for a favorable ruling. Besides Posner, the panel also included Ann Williams, a black woman appointed to the district court by President Ronald Reagan but elevated to the appeals court by President Bill Clinton. The third member was Thomas Hamilton, who was President Obama’s first appellate court nominee.
      Fisher, first to the lectern on Tuesday, opened by saying he wanted to make three points in defending Indiana’s definition of marriage as limited to opposite-sex couples. Judging from the political rhetoric over the issue, one might have expected Fisher to talk about the threat to traditional marriage and the potential harm to children in same-sex households.
     Instead, Fisher listed arguments better suited to a law school exam than the political arena. First, he said that the Supreme Court’s one-sentence decision in 1972 rejecting same-sex marriage was still good law and could be changed, if at all, only by the Supreme Court itself. Second, he contended that the arguments for gay marriage had “no limiting principle” — in effect, that a right to polygamous marriage would naturally follow. And, third, Fisher insisted that there was no basis to infer constitutionally impermissible “animus” on the part of the legislators who adopted the opposite-sex definition of marriage.
     Fisher had no chance to elaborate on any of those briefly stated positions before Posner forcefully changed the subject. What about the children already being raised in same-sex households? Posner asked. Wouldn’t those children want their parents to be married?
     Fisher showed no sign of having prepared to answer this thoroughly predictable question. “I don’t think it’s my job to answer that question,” he said when Posner paused long enough to allow him to respond. He fared no better later when he said that limiting marriage to opposite-sex couples helped “channel potentially procreative couples into relationship that are durable and long-lasting.” Hamilton and Williams were both unmoved. “I just don’t get that,” Williams said curtly.
     Samuelson had no better luck defending Wisconsin’s constitutional amendment banning gay marriage. Among other points, the state’s attorney tried tradition and legislative prerogative. “Do you have anything besides tradition?” Posner asked. Samuelson tried to reply, but Posner kept at it. “You don’t seem to have any arguments,” he said.
     Later, Posner was equally dismissive of legislative prerogative. “You’re back to the argument that legislative decisions are sacred,” he said. What harm would result from allowing gays to marry? Posner asked. “Frankly, we don’t know what is the harm,” Samuelson conceded. Samuelson saw the uncertainty as an argument for hesitating, but Posner would have none of it. “You could say that about every constitutional challenge,” he said.
     Lawyers for the plaintiffs had their own bad moments at the lectern. In the Indiana case, Camilla Taylor, a lawyer in Lambda Legal Defense Fund’s Chicago office, stumbled a bit when Posner asked her to define the due process right to marriage that the plaintiffs were claiming. When Posner insisted the case was really about equal protection, Taylor refused to budge: “We think we win on both,” she said.
     In the Wisconsin case, James Esseks, director of the American Civil Liberties Union’s Lesbian, Gay, Bisexual, and Transgender and AIDS Project, got a dose of Posner when he argued for applying “heightened scrutiny” to the gay marriage bans. “I have to tell you, I don’t get any help from phrases like heightened scrutiny,” Posner said.
     Despite those moments, reporters who covered the arguments in the Chicago courtroom and those who listened to the audio afterward were unanimous in predicting a 3-0 ruling for the plaintiffs to strike down the Indiana and Wisconsin laws. But the eventual rulings will be of little consequence. Two federal appeals courts have already ruled gay marriage bans unconstitutional: the Tenth Circuit in separate decisions in Utah and Oklahoma cases and the Fourth Circuit in Virginia cases.
     The plaintiffs in those cases have now joined the states in urging the Supreme Court to take up the issue, in the new term that starts on Oct. 6. Unless the justices find some reason to hesitate, the gay marriage showdown is imminent, and a make-or-break ruling due by the end of June 2015.

Friday, August 22, 2014

Ferguson Shows Need for Police Accountability

     The shooting death of Michael Brown, an unarmed black teenager, by a white police officer in the predominantly African American St. Louis suburb of Ferguson, Missouri, has once again opened the racial fault line in the United States. But the racial issues in this tragic episode also help show the need for improved police accountability, an issue that ought to find common ground among Americans of all races.
     Amidst the voluminous coverage of Brown’s death, two striking facts have emerged:
     * The number of Americans killed by police each year is simply unknown. The commonly cited figure of about 400 deaths per year is based on incomplete information provided to the Justice Department and is almost certainly lower than the actual figure, as elaborated here by FiveThirtyEight visual journalist Reuben Fischer-Baum.
     * The number of such homicides found to be unjustifiable is also unknown, but clearly low. FBI statistics suggest that at least 90 percent of the killings are found justifiable; experts say the number found to be unjustifiable is vanishingly small.
     Criminologists have long complained about this statistical gap. “There is no national database for this type of information, and that is so crazy,” Geoff Alpert, a professor at the University of South Carolina in Columbia, told USA Today. “We've been trying for years, but nobody wanted to fund it and the police departments didn't want it."
     The USA Today story — written by reporters Kevin Johnson, Meghan Hoyer and Brad Heath — notes that the Justice Department statistics are compiled by reports from only 750 out of the 17,000 local law enforcement agencies nationwide. With that limitation, the reporters nevertheless teased out the estimate that about 96 African American civilians were killed by white police officers on average each year during the period 2003-2012 covered by the statistics.
     In short, Michael Brown’s killing on Aug. 9 “was not an isolated event,” the story understated. African Americans already knew that. That is why, as many African American families have recounted in recent days, black parents feel the need to caution their young children about the dangers of sassing-while-black.
     Even without reliable statistics about the outcomes in other cases, most African Americans lack confidence that justice will be done in the investigation of Ferguson police officer Darren Wilson for Brown’s death. A survey by Pew Research Center (Aug. 14-17) found that 18 percent of blacks surveyed had “a great deal” or “some” confidence in the investigation, compared to 76 percent who had “not too much” or “not at all.” A New York Times poll (Aug. 19-20) found somewhat greater confidence: 35 percent compared to 59 percent registering no or little confidence.
     In both surveys, more white Americans had confidence in the investigation, but the results were by no means a ringing endorsement of the officials in Ferguson and St. Louis County. Pew found that one-third of white respondents lacked confidence in the investigation; in the Times poll, 28 percent of whites registered doubts.
     Missteps by the Ferguson and St. Louis County authorities have fed those doubts. Ferguson Police Chief Thomas Jackson waited six days to identify Wilson as the officer “involved” in the shooting. He disclosed the name only after first releasing a videotape that purportedly shows Brown less than an hour before his death shoplifting cigars from a local convenience store.
     Jackson explained to the assembled reporters that he released the supposedly incriminating video of Brown “because you asked for it.” Later, U.S. Justice Department officials said they had urged Jackson not to release the tape for fear inflaming the already heated feelings in Ferguson. At different points, Jackson has given different answers on whether Wilson had known of the suspected robbery when he initially stopped Brown.
     Meanwhile, the American Civil Liberties Union (ACLU) had to file sunshine law requests to obtain police reports on the shooting. The St. Louis County report contained essentially nothing; the incident report from the Ferguson police was heavily redacted.
     To date, the department has also failed to release any medical records to resolve the important dispute over the extent of any injuries that Wilson might have suffered in whatever altercation with Brown occurred. The official autopsy also is undisclosed, but a private autopsy conducted by a nationally prominent medical examiner at Brown’s parents’ request shows six bullet wounds, including two to his head.
     In the two weeks since the shooting, news media have located eyewitnesses some with phone-recorded videos who say Brown was attempting to surrender when Wilson began firing. A damning video shows Wilson standing all but motionless as Brown lay on the ground, unattended to.
     The episode underscores the arguments for pending proposals to routinely equip police officers with body cameras. Departments that have instituted the practice say that they actually help officers defend against unwarranted accusations of abusive behavior. Civil liberties groups hope that the cameras would deter abusive behavior in the first place.
     The parallel local and federal investigations will not be completed quickly, nor is there any guarantee that the results of the investigation or any eventual trial will be universally accepted as just. Truth and justice are both more elusive than often assumed. For now, however, the authorities in Ferguson and St. Louis County are on trial, and white and black Americans alike are entitled to expect that they do their best to ensure that justice is done.

Sunday, August 17, 2014

Breyer's Two Decades as the "Cold-Fish" Justice

      As a young lawyer, Ian Gershengorn minced no words in sizing up Stephen Breyer as a candidate for a vacancy on the Supreme Court. After plowing through a decade’s worth of Breyer’s work as a federal appeals court judge, Gershengorn reported to the Clinton White House that he had found “very little heart and soul” in Breyer’s opinions.  “Quite clearly,” Gershengorn wrote in a memo co-authored with Tom Perrelli, “he is a rather cold fish.”
      Two decades later, Breyer is on the Supreme Court, and Gershengorn regularly appears before him as a deputy U.S. solicitor general. So, Gershengorn naturally took the chance to recant after his earlier evaluation surfaced last month in the release of some of President Clinton’s White House papers.
      “Everyone has regrets from his 20s,” Gershengorn told The Wall Street Journal’s Supreme Court correspondent Jess Bravin. “Suffice it to say I have the highest respect for Justice Breyer and believe he has proven to be a terrific justice.”
       Gershengorn is entitled to his disavowal, but his evaluation proved to be spot-on at the time and looks as much true as false based on Breyer’s 20 terms on the high court. Among The Nine, Breyer is on the cool end of the emotional spectrum, logical to a fault with little if any of the passion that one sees in Ginsburg or Sotomayor on the left, Scalia or Alito on the right, or even Kennedy in the middle.
      Breyer left Clinton cold when he was interviewed in May 1993 for the vacancy that Ginsburg won instead on the strength of her emotion-laden life story. A year later, Breyer became the default choice for a second vacancy only after Clinton struck out with his hope to put a politician like George Mitchell or Bruce Babbitt on the court.
      Belying Gershengorn’s review to some extent, Breyer showed emotion at least twice during his Senate confirmation hearing, according to my account in Supreme Court Yearbook. When asked about affirmative action, Breyer spoke strongly about the need to do more to meet the “basic promise of fairness” in the Fourteenth Amendment after “years of neglect.” He also signaled a strong commitment to women’s rights, referencing his daughters Chloe and Nell seated behind him. “Think of some kind of rule that makes their life worse because they're women,” Breyer said. “Wouldn't you say, but what kind of justification for that could there be?”
      Breyer has proved to be a reliable vote for women’s rights and racial justice throughout his tenure. He veers away from a liberal line on some other issues, however, notably First Amendment free speech issues and Fourth Amendment search disputes. In those two and other areas, Breyer displays his signature doctrinal commitment: pragmatism. “He is unapologetically pragmatic,” Kevin Russell, a former Breyer law clerk and now a frequent Supreme Court advocate, remarked in a 20th anniversary profile in USA Today.
     In Fourth Amendment cases, Breyer is likely to side with law enforcement, as in this year’s 5-4 decision upholding a traffic stop based on an anonymous 911 call (Navarette v. California). In First Amendment cases, Breyer looks for reasons to uphold government regulation, as when he voted in dissent in 2011 to uphold California’s ban on violent video games for minors (Brown v. Entertainment Merchants Ass’n).
     Pragmatism can turn into hash, however, in a Supreme Court decision. When he wrote the main opinion in a case striking down parts of a law aimed at restricting sexual material on cable television, Breyer turned the court’s precedents into a morass of generalities: “The Government may directly regulate speech,” he wrote, “to address extraordinary problems, where its regulations are appropriately tailored to resolve those problems without imposing an unnecessarily great restriction on speech” (Denver Area Educational Television Consortium v. FCC, 1996).
     More recently, Breyer provided nothing better than an unweighted multifactor approach for testing the powers of Congress when he wrote the decision upholding a federal law allowing civil commitment of mentally ill offenders (United States v. Comstock, 2011). In a dissent, Thomas said Breyer’s “novel five-factor test” included no guidance on how to apply the decision to the next case.
      Breyer’s convoluted thinking is often on display on the bench as well. The one-time Harvard law professor is the master of the long-winded question and the hopelessly complex hypothetical. Often, he prefaces questions by saying he needs the answer to decide how he will vote. Other justices — perhaps most notably Alito on the right and Kagan on the left — use their questions more strategically to try to influence their colleagues’ votes.
      Perhaps most significantly, Breyer is Congress’s best friend on the court. He served two tours as a staff assistant on Capitol Hill, helping to author the trucking and airline deregulation bills and the new system of federal sentencing guidelines. Statistics compiled by Yale law professor Paul Gewirtz in 2005 showed Breyer the least likely of the Rehnquist Court justices to vote to find laws passed by Congress unconstitutional. My count suggests he holds the same position on the Roberts Court.
      Breyer has tried, in his book Active Liberty and elsewhere, to lay out an overall philosophy of the court’s need to assist the process of self-government and to look to history and practice more than literal text to guide decisions. But his ideas have had nothing like the impact of those from his hot-tempered colleague Scalia. After two decades on the bench, the influence of the cold-fish justice is sometimes hard to discern.

Sunday, August 10, 2014

In Tennessee, Justices Win by Playing Game

       Three of the Iowa Supreme Court justices who ruled in favor of gay marriage in 2009 faced opposition from anti-gay groups the next year when the state’s voters had to decide whether to keep them on the bench. The justices decided to stand above the fray: no interviews, no fund-raising, no campaigns to speak of. They all lost, by about a 10 percent margin.
      Three of the Tennessee Supreme Court’s five justices faced a politically motivated challenge this year when they were on the ballot in a similar yes-no retention election. They responded by campaigning across the state, raising money, and attacking their opponents for engaging in a political power grab.
      The result: the three justices were retained by a 14 percentage point margin, wider than expected even by the justices’ supporters. And the state’s Republican lieutenant governor, Ron Ramsey, who masterminded the attempted ouster, was forced into pretending that the defeat vindicated his strategy to go after the justices.
      The lesson for supporters of an independent judiciary seems too obvious to need stating, but here goes: You cannot win the game unless you play.
      Tennessee is one of the states to use a system of merit selection and retention elections to try to keep politics out of judicial races. But the system still allows political games to be played by opportunistic politicians or advocacy groups. Judges who find themselves targeted set themselves up to lose if they ignore seriously mounted opposition campaigns. And the bar and others who care about an independent judiciary need to step up to the plate to help.
      Critics of judicial elections are right to worry about the cost of such campaigns. Special interest money on either side poses a real risk of putting a heavy thumb on one side or the other of the scales of justice.
      In the Tennessee race, more than $1 million was spent on television advertising by the opposing campaigns, according to a compilation by Justice at Stake, a nonpartisan organization that advocates a fair and impartial judiciary. “Partisans and special interests opened their checkbooks to send a message of intimidation to courts not just in Tennessee, but across America,” said Bert Brandenburg, the group’s executive director.
      Significantly, the opponents were outspent by the justices’ own campaign and the independent group supporting them. Justice at Stake counted $474,150 in TV spending by Tennessee Forum, the anti-retention group funded by Ramsey’s political action committee, and another $63,390 by a second group funded by Americans for Prosperity, the heavyweight conservative organization financed in large part by the Koch brothers.
      On the opposite side, the justices’ own campaign spent an estimated $579,870 in joint ads, while Chief Justice Gary Wade separately spent another $94,980. In addition, Tennesseans for Fair Courts, a group formed by a lawyer in the Nashville suburb of Hendersonville, spent about $215,840 on ads supporting retention.
      Wade and the other two justices targeted, Cornelia Clark and Sharon Lee, were all appointed by a former Democratic governor, Phil Bredesen, from among candidates forwarded by a bipartisan selection commission. Wade and Clark both had two decades’ experience in the judiciary before their appointments in 2006 and 2005 respectively. Lee had six years’ experience as a judge when Bredesen picked her in 2008 during his second four-year term.
      Tennessee has seen nothing but red politically since Bredesen left office in 2011. Ramsey, lieutenant governor as speaker of the GOP-controlled state Senate, clearly wanted Republicans to control the state Supreme Court as well. Interestingly, the state’s Republican governor, Bill Haslam, took no part in the campaign and in fact called the attacks on the justices “dangerous.” But it would have been Haslam to appoint any new justices if any of the incumbents had been ousted.
      The campaign against the justices consisted of a mish-mash of legal and political sloganeering. Despite the justices’ experience in the judiciary, Ramsey’s group said all three were “partisan liberals” who were pursuing a “liberal agenda.” Among the specifics, the court was blamed for selecting a Democrat as attorney general, Robert Cooper Jr., who declined to join states with Republican attorneys general in the legal challenge to Obamacare.
      The justices were also accused of being soft on crime and insensitive to crime victims. One ruling specifically cited followed established law in reversing a murder conviction because of the prejudicial effect of introducing pictures of the victim unrelated to the crime. The justices were also depicted as beholden to trial lawyers, who were said to be “funding the campaign to keep them in power.”
      Brandenburg fretted that the justices had been forced to become “professional fundraisers, often soliciting money from parties who will appear before them in court.”  The justices were right, however, not to unilaterally disarm themselves in the race. Instead, they worked the political circuits hard. On the eve of the election, Clark and Lee held a rally in Nashville to warn against groups who did not believe in fair and impartial courts.
      With the election over, the court’s supporters expressed gratification, but worried that more such campaigns could be in the offing a warning echoed by national groups following the issue. If so, supporters of an independent judiciary will need to do what it takes to counter ill-founded attacks that jeopardize the goal of fair and impartial justice.

Thursday, August 7, 2014

All Ears on Sutton in Gay Marriage Cases

      Will Jeffrey Sutton become the second Republican-appointed federal appeals court judge to vote in favor of marriage rights for same-sex couples? That is the question left hanging after an extraordinary three hours of oral arguments in gay marriage cases from four states before the Sixth U.S. Circuit Court of Appeals in Cincinnati on Wednesday [Aug. 6].
      Sutton, a hero to legal conservatives before his appointment to the bench by President George W. Bush in 2003, has been recognized as the pivotal vote in the cases ever since the three-judge panel was selected a few weeks back. Sutton’s colleagues were easily pigeonholed: Martha Craig Daughtrey a Clinton appointee with a strong liberal record first on Tennessee appellate courts and then on the federal bench; and Deborah Cook, like Sutton a Bush43 appointee with a conservative record. [Disclosure: Daughtrey is a longtime personal friend from Tennessee days.]
      Court watchers focused on Sutton, however, because of his vote three years ago to uphold the Affordable Care Act even as other Republican-appointed judges were finding it unconstitutional. So Sutton’s questions were listened to very closely by reporters in Cincinnati for the hearing and those, like this reporter, who listened to the audio on line after the fact.
      Judges’ questions during appellate arguments, of course, do not necessarily indicate their eventual vote. But they often do, as anyone who has heard Antonin Scalia or Ruth Bader Ginsburg in action can attest.
     Like a good judge, Sutton asked challenging questions of both sides in the succession of cases Wednesday from four states: Michigan, Ohio, Kentucky, and Tennessee. Yet, in my listening, Sutton seemed tougher on lawyers for Michigan and Ohio, pointedly questioning their arguments on the substantive merits.
     Sutton pounced hard, for example, when Michigan’s solicitor general Aaron Lindstrom described the state’s gay marriage ban as “facially neutral.” “How is it facially neutral?” Sutton asked. “It’s not facially neutral as between people of one sexual orientation and another.”
     For attorneys representing the same-sex couple plaintiffs, Sutton raised process questions: Shouldn’t the issue be left to legislators, not judges? Wouldn’t it be better for gay rights advocates to win through the democratic process instead of in the courts? Carole Stanyar, attorney for the lesbian couple in the Michigan case, had an effective answer: “In my state nothing is happening to help gay people,” she said.
      Most telling for this listener at least, however, was Sutton’s mini-speech early in the Michigan argument debunking Lindstrom’s view of marriage as a static tradition. Marriage “changes with social mores,” Sutton remarked in a non-question that went on for several sentences.
     Sutton rejected Lindstrom’s emphasis on promoting “responsible procreation” through opposite-sex marriage. “Modern conceptions about marriage are more about love, affection, and commitment,” he said. With marriage viewed in that light, the ban “does seem harder to justify even on rational basis grounds,” Sutton said.
     In the Ohio case, Solicitor General Eric Murphy defended the state’s ban on recognizing gay marriages from other states by noting that laws would have to be changed for example, forms listing “husband” and “wife” or “mother” and “father.” Sutton was unimpressed: “All I’m hearing you say is you’d have to change it to say spouse.” Daughtrey added her own tweak: “Or parent.”
      Among other reporters, Chris Johnson of the Washington Blade heard the arguments as I did. “State bans on gay marriage took a beating Wednesday,” Johnson wrote. Other reporters hedged their bets. “[I]t appeared that neither side could take victory for granted,” wrote Erik Eckholm, the New York Times’s national legal correspondent. BuzzFeed’s legal editor Chris Geidner restated the obvious: The decision, Geidner wrote, “likely sits in the hands of Judge Jeffrey Sutton.”
      As expected, Daughtrey signaled through forceful question a certain vote for gay marriage rights. Cook asked relatively few questions suggesting to this listener that she may be resigned to voting in dissent to uphold the state bans.
      After the questions, the judges have to write an opinion—or multiple opinions. When it comes to that, Sutton will have a hard time turning his process questions into a basis for rejecting the rights of the actual plaintiffs before him. The only two appellate judges to buy that argument so far — Paul Kelly on the Tenth Circuit and Paul Niemeyer on the Fourth — are Republican-appointed conservatives from an earlier generation than Sutton; on the Tenth Circuit, Judge Jerome Holmes, like Sutton a Bush43 appointee in his early 50s, voted to strike down the gay marriage bans in Utah and Oklahoma.
     It may well be true, as Ginsburg has said about the Supreme Court’s abortion rights ruling, that gay marriage rights would be accepted more readily if accomplished through legislative change state by state. Or perhaps not: gay marriage opponents are persisting even in the face of an unbroken string of marriage equality rulings over the past year.
      To uphold the state bans, however, Sutton must find at least a rational basis for preventing April De Boer and Jayne Rowse from being legally acknowledged as parents, both of them, to the three children in their family. He must find a basis for denying to John Arthur, now deceased, the right to list his legally married husband James Obergefell on his Ohio death certificate. In my estimation, that opinion “won’t write,” as judges sometimes put it. Prediction: 2-1 ruling for gay marriage rights, sometime this fall.
     
      An earlier version of this column stated that Sutton could be the first Republican-appointed federal appeals court judge to rule in favor of marriage rights for same-sex couples; Jerome A. Holmes of the Tenth Circuit was the first. The column has been corrected to incorporate this information.