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On the docket

"On the docket" Continued...

Issue: "On the rails," Oct. 9, 2010

U.S. Chamber of Commerce v. Whiting

Much of the debate over the new immigration law in Arizona stems from the question of whether the Arizona law may trump federal law. A case coming before the Supreme Court this term could set the table for whether states can create immigration laws that preempt federal laws. In 2008 Arizona passed a law imposing sanctions on employers who hire illegal immigrants and required that employers check the immigration status of potential hires in a federal database. According to federal law, however, employers can choose whether to check the database. In U.S. Chamber of Commerce v. Whiting, the high court will decide whether Arizona has the right to make a law that goes beyond federal hiring statutes.

Kagan has also recused herself from this case. The court hasn't set a date for arguments.

Bench politics

Spending in campaigns to elect judges at state levels has more than doubled in the last decade, according to a new report, resurrecting a debate over the wisdom of electing judges in the first place. Individuals and groups have poured $207 million into judicial races in the last decade, compared to $83 million in the previous one, according the report by the Brennan Center for Justice, Justice at Stake, and the National Institute on Money in State Politics. More than a dozen states this year are holding elections for positions on state Supreme Courts.

Critics of the current system of electing judges say campaign money biases judges in cases or creates the appearance of bias. The alternatives they propose are nonpartisan commissions that would select judicial nominees based on merits. But supporters of judicial elections say such commissions would be just as political and wouldn't have the public accountability that comes with an election.

Former Michigan Supreme Court Chief Justice Cliff Taylor supports judicial elections even though he lost his in 2008 after a decade of service on the court. While judicial elections aren't "flawless," he says they are a better alternative to the commission model, which he believes isn't truly based on merit. "It's all very subjective once you get past [law school] grades," he said recently in comments at the Heritage Foundation. For candidates at the state Supreme Court level, resumés are going to generally look the same. "Bums don't apply for these high-level posts," he said, so the debate becomes more about their politics than their qualifications.

But critics and supporters of the current system don't fall along partisan lines. Abolishing judicial elections has become a mission for retired Supreme Court Justice Sandra Day O'Connor, who started her career as a state judge in Arizona before President Reagan nominated her to the high court in 1981. In Arizona, the governor appoints judicial nominees from a bipartisan commission, a model O'Connor supports.

One drawback to judicial elections that Taylor recognizes is that a judge's decisions can be quickly distorted to political ends. For example, a ruling in favor of a criminal defendant, regardless of the nuances of the case, can make the judge look "soft on crime."

Wisconsin, North Carolina, and New Mexico have addressed concerns about judicial independence by publicly financing judicial campaigns. And in June, the U.S. Supreme Court issued a ruling in Caperton v. Massey Coal that an elected judge must recuse himself from cases in which large campaign donors are involved.

Emily Belz
Emily Belz

Emily, who has covered everything from political infighting to pet salons for The Indianapolis Star, The Hill, and the New York Daily News, reports for WORLD from New York City. Follow Emily on Twitter @emzleb.

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