Earlier this month, Senate Minority Leader Mitch McConnell (R-KY) strongly hinted he would filibuster President Obama’s three nominees to the United States Court of Appeals for the District of Columbia Circuit, the second most powerful court in the country. And Sen. Chuck Grassley (R-IA) even introduced legislation to strip three seats from this court in order to prevent Obama from filling them. Earlier today, however, Sen. John McCain (R-AZ) indicated he would not go along with such efforts to keep this powerful court in Republican hands. “Elections have consequences” McCain told a group of reporters, after saying he’s “always believed” that the judicial nominees deserve an up-or-down vote unless there are extraordinary circumstances justifying a filibuster.

With the recent confirmation of Judge Sri Srinivasan, the DC Circuit’s active judges are evenly split between Democrats and Republicans. Five of the court’s six senior judges — partially retired judges who hear reduced caseloads — are Republicans, however. So the court is currently dominated by conservatives. Should Obama’s nominees be confirmed, the Democratic active judges will be able to overrule any decision by a conservative panel by agreeing to hear cases “en banc” — a process which allows all fully active judges to weigh in on a case. With Obama’s three nominees, Democratic appointees would enjoy a 7-4 majority on an en banc panel.

In the interim, however, the court’s Republican judges have wielded their dominance to write their own policy preferences into the law. Two George W. Bush appointees struck down clean air regulations that would have prevented “between 13,000 and 34,000 premature deaths, 15,000 non-fatal heart attacks, 19,000 hospital and emergency room visits and 1.8 million days of missed work or school for each year.” Another panel of three conservatives handed down a decision earlier this year that would make much of American labor law completely unenforceable. A third opinion invalidated federal rules requiring employers to inform workers of their rights under federal labor law, and they did so in an opinion that was so broadly reasoned it could potentially invalidate laws requiring everything from fuel efficiency labels on new cars to nutritional labels on food.

Sen. Elizabeth Warren (D-MA) brought renewed attention to the critical battle over nominees to the federal courts Thursday evening, in remarks that blasted the “corporate capture” of the federal courts, and called on those concerned with the political system to care as much about the make-up of the courts as of the legislature.

Observing courts’ increasing tendency to side with corporate interests and narrow individuals’ access to justice, Warren flagged a glaring skew in the professional experience of federal judges, the vast majority of whom have experience either as corporate attorneys or prosecutors. Warren lamented that only three percent of federal appeals court judges have substantial legal experience working for a nonprofit organization, and a similar percentage have worked in some capacity to enforce civil rights, according to an American Constitution Society report. And while President Obama has been responsible for some of the most notable exceptions to this trend, recent accounts show that the federal courts continue to be dominated by the same sorts of professional backgrounds.

I want to be clear — there are some really, really talented judges who come from the private sector. I myself have worked for private clients. And it is of course true that the personal views of an attorney often diverge from those of his or her clients. But I think diversity of experience matters.

She pointed to Judge Edward Chen, a rare judge with recent experience working at an organization that enforces civil rights. She explains:

At his induction ceremony, Judge Chen was quoted as saying that he never considered withdrawing his name from consideration because, as he explained, “I believe that someone should not be disqualified from the bench simply because they once represented the voiceless and unpopular, rather than the wealthy and the powerful.” Judge Chen is right.

But Judge Chen’s nomination process exemplifies why there are not more judges like him. Chen was first nominated in August, 2009. Chen, not just a former ACLU lawyer but also one of the first Asian Pacific American nominees on the court, received the highest possible rating of unanimously well qualified from the American Bar Association, and had experience as a magistrate judge. His nomination was nonetheless subject to relentless obstruction and an “unseemly smear campaign,” with the Senate sending his nomination back to President Obama for three sessions in a row. Obama stood behind his nominee, and, after the vacant court seat had sat empty for more than two years, Chen was eventually confirmed in May 2011. The successful confirmation required not just the commitment of Obama, but also of Chen. Most nominees cannot tolerate the toll on their career imposed by several years of nomination limbo and Senate scrutiny. And the White House does not have the political capital to push through very many Chens, meaning most of his nominees have had similar professional experience to that of his Republican precedessors’. Other nominees, like Rhodes Scholar and award-winning teacher Goodwin Liu, never made it through this obstruction at all.

In her address to the progressive legal community at the American Constitution Society’s national convention, Warren calls for “a new generation of judges, judges whose life experience extends beyond big firms, federal prosecution, and white collar defense.”

While professional diversity has lagged, Obama has made unprecedented progress in contributing to race, gender, and sexual orientation diversity on the federal courts. But combating the corporate chokehold on the ideological leanings of nominees may prove an even more difficult challenge.

Mandatory minimum prison sentences, statutorily imposed by legislatures, are among the major contributors to the U.S. incarceration epidemic. Many federal judges have recognized the injustice of these sentences, and lament that acts of Congress have tied their hands to issue sentences below the mandatory minimums, particularly when it comes to low-level drug offenders. Nevertheless, judges often exercise their authority to hand down sentences above the floor set by law.

In a decision issued Monday, the U.S. Supreme Court held in a splintered 5-4 ruling that judges do not get to raise the floor itself when deciding a criminal defendant’s sentence:

Any fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an “element” that must be submitted to the jury.

The case involved Allen Alleyne, who was convicted for robbing a convenience store owner as he drove to make a bank deposit. The jury found Alleyne guilty of both having committed the robbery, and having used or carried a firearm. They acquitted him, however, of brandishing a firearm during the crime. The crime Alleyne was convicted of has a mandatory minimum sentence of five years. Had the jury determined that he brandished a firearm, the minimum would have been seven years.

Nonetheless, in sentencing Alleyne, the judge independently found that Alleyne should have known his accomplice would brandish a firearm during the robbery – thus bumping Alleyne up to the seven year minimum sentence. Unlike a jury, which is tasked with finding guilt “beyond a reasonable doubt,” the judge made this finding under the much lower standard of “preponderance of the evidence.” The judge then sentenced Alleyne to the (false) minimum of seven years.

This ruling may have a limited impact, as it does nothing to alter draconian mandatory minimum sentences, and judges still maintain significant discretion to sentence above the mandatory minimum, even without making findings that should have been left to the jury. As a practical matter, its impact may be limited to cases such as this one where a judge simultaneously sentences a criminal defendant to what he believes to be the statutory minimum and gets that minimum sentence wrong.

As sentencing expert Doug Berman points out, the case’s most significant consequence may be that it signals the start of a trend toward putting more fact-finding decisions that influence judges’ calculations into the hands of the jury — a trend that could mitigate some of the harshest sentences doled out by judges. Federal District Judge Mark Bennett, who has been a vocal critic of both mandatory minimum sentences and stringent federal sentencing guidelines, recounted just this past weekend how his own survey of jurors has revealed the disconnect between public perceptions of a just sentence, and those imposed by mandatory minimums and federal guidelines:

The public is tough on crime except when they’re in an actual case. For 19 years after every criminal trial when the jury has found the defendant guilty, I ask them to write down … what you think would be an appropriate sentence for this defendant. Never once. Never once has a juror put down a sentence that even approaches what the likely [federal guideline or mandatory minimum] sentence would be. And I live in one of the most conservative parts of the United States.

Bennett’s comments came during a panel at the American Constitution Society’s national convention on the U.S. epidemic of mass incarceration, which even the Congressional Research Service has found is fueled in large part by mandatory minimum sentences. While today’s ruling shed light on these sentences, it will likely take another act of Congress to meaningfully mitigate their consequences.

On the day President Obama took office, there was only one openly gay judge with a lifetime appointment to the federal bench, Clinton appointee Deborah Batts, who took partial retirement last year. There are now seven. Earlier today, the Senate confirmed openly lesbian Judge Nitza I. Quiñones Alejandro to a federal district court in Pennsylvania. Judge Quiñones joins Judges Alison Nathan, Paul Oetken, Michael Fitzgerald, Michael McShane and Pamela Ki Mai Chen, all of whom are openly gay federal judges appointed by President Obama.

Judge Quiñones was confirmed by a voice vote, a process typically used for uncontroversial nominees. She enjoyed the support of both her home state senators, Bob Casey (D-PA) and Pat Toomey (R-PA).

Judge Edith Jones, the former chief judge of the powerful United States Court of Appeals for the Fifth Circuit, will be the subject of a formal ethics review.

Last week, a coalition of civil rights organizations filed a complaint against Jones alleging that she claimed that African-Americans and Hispanics are predisposed towards violent crime, among other things. In response to this complaint, Fifth Circuit Chief Judge Carl Stewart asked Chief Justice John Roberts to transfer the Jones complaint to another circuit. Yesterday, Roberts obliged with a letter formally calling upon the Judicial Council of the District of Columbia Circuit to “exercise the powers of a judicial council with respect to” the Jones complaint and any related complaints.

Although the rules governing judicial misconduct complaints allow for such transfers, they are unusual and are normally not handled in as public a manner.

As of last month, the Judicial Council of the District of Columbia Circuit includes Chief Judge Merrick Garland, a Clinton appointee, and four other judges appointed by Democratic presidents. The remaining four members are Republican appointees.

Last week, a coalition of civil rights organizations filed an ethics complaint against Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit, alleging that she claimed “racial groups like African-Americans and Hispanics are predisposed to crime,” and that she made inappropriate comments about the death penalty. In a likely sign that the court is taking the complaint seriously, a panel that includes both Jones and the court’s Chief Judge Carl E. Stewart just ordered a death penalty case transferred to another panel.

The complaint against Jones, which also alleges she discussed the facts of this particular case during the remarks that included her alleged offensive statements, is currently pending before Stewart. Judge Jones dissented from the panel’s order that effectively removes her from this case.

It should be noted that the court’s order rests on several unusual factors particular to the judges that sat on the original panel. In addition to citing the complaint against Jones, the order notes that Stewart’s duties as chief judge “give him a substantial role in the consideration of any complaint of judicial misconduct,” and that the third member of the panel is Judge James Dennis, who Jones once “showed disrespect toward.” While the opinion does not specify how Jones disrespected Dennis, this is likely a reference to a 2011 hearing when Jones told Dennis to “shut up.”

In other words, this court’s order may simply rest on the idea that a panel of three judges, one of whom is currently standing in judgment of the other and a third who has a history of tension with the second, is not likely to give the impression of impartial decision making. The order adds that “no inferences should be drawn about the merits of” the complaint against Jones.

Nevertheless, the fact that the court took this action over Judge Jones’ explicit objection suggests that Chief Judge Stewart is, at the very least, concerned about how the complaint against Jones reflects upon his court.

A new study compares contributions from big business to state supreme court rulings in more than 2,000 cases from 2010 to 2012, and it concludes that “a justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time.” This correlation was strongest in the handful of states with partisan high court elections. Republican judges receive much more funding from big business, and in general, they are more likely to vote in favor of corporate litigants.

The study found, however, “a stronger relationship” between corporate campaign cash and the votes of Democratic justices. “Judges who are not ideologically or otherwise predisposed to vote in favor of business interests might….cast votes in cases either to obtain financial support from those business interests for their future campaigns, or at least to reduce incentives for….attacks funded by business interests.”

This discrepancy mirrors the findings of a 2007 study by Madhavi McCall and Michael McCall of Texas Supreme Court rulings between 1994 and 1997. In general, the Republican-controlled court was much more likely to favor defendants over plaintiffs. But plaintiffs who made a campaign contribution received “more than double the rate of support” among the justices.

These results suggest that campaign contributions can be very effective in persuading judges to vote against their ideological inclination. Campaign cash speaks louder than a judge’s predisposition to favor individual plaintiffs or corporate defendants.

Shepherd’s study, sponsored by the American Constitution Society, found that the correlation between corporate campaign contributions and rulings has grown stronger since the late 1990’s, as spending on high court elections has exploded. In a series of cases, the U.S. Supreme Court has struck down limits on independent spending in political campaigns and limited states’ options to curb the influence of campaign cash.

The study noted that corporate-funded groups are taking advantage of these loopholes in campaign finance laws, and their “dominance of television advertising has steadily increased over time.” Because voters often lack knowledge about judicial candidates, these ads can be very effective at defining the candidates in the minds of voters.

There is no reason to think that the role of money in judicial elections will subside. Until voters demand reforms to curb the influence of money on the judiciary, Americans will have even more judges that favor corporate defendants over individuals seeking to hold them accountable.

Billy Corriher is Associate Director of Research for Legal Progress.

According to a complaint filed last week against federal appellate Judge Edith Jones, Jones suggested that African-Americans and Hispanics are predisposed towards violent crime and that the death penalty is a public service because it allows inmates to “make peace with God.” Should these allegations against Judge Jones be proven, they will be only the latest examples of a career’s worth of nonchalance regarding executions. Indeed, as far back as 1990, a much younger Jones proposed a series of reforms to Texas’ execution procedures that would have increased that state’s execution rate by as much as twelve times.

In an article for the Texas Bar Journal entitled “Death Penalty Procedures: A Proposal for Reform,” which is available through the legal research service HeinOnline, Jones decries a capital punishment system in Texas which she views as too inefficient, in large part because judges delay executions by taking time to review death sentences to determine that they were lawfully handed down. Indeed, at one point Jones blames the slow rate of executions on “the frequent, human reaction of most judges . . . to defer a decision if any element of a case raises doubts, or to grant a temporary stay for further consideration.”

To speed along Texas’ ability to kill death row inmates, Jones proposes that Texas schedule “four to six executions per month, commencing six months to one year from the date” those execution dates are made public. Notably, in the five years prior to when Jones wrote this piece, Texas executed an average of just under six inmates per year, so the immediate impact of her proposal would have been to multiply the state’s execution rate eight to twelvefold.

It’s also worth noting that Texas’ execution rate did spike significantly in the years after Jones wrote this piece. Most significantly, during the four years after Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, which limited the ability of death row inmates to challenge their sentences in federal court, Texas executed an average of 33 people per year. Nevertheless, in the modern era of American death penalty law, Texas has never executed the 48 to 72 people per year suggested by Jones’ piece. The deadliest year for Texas inmates was 2000, when 40 people were executed. 15 people were executed last year. Nevertheless, Jones concludes her list of proposals for expediting Texas’ executions by suggesting they could be viewed as “too lenient” because they would “take more than four years to conclude all the currently pending capital cases.”

A decade after publishing this proposal, Jones joined two opinions claiming that a man whose attorney slept through much of his trial could nonetheless be executed.

Even without Jones’ proposal for a wave of executions, Texas has a higher execution rate than any other state. More than one third of all U.S. executions took place in Texas since 1976, when the Supreme Court announced the modern constitutional regime governing death penalty cases.

(HT: James Gill)

The nation’s youngest federal judge compared herself to the “Hulk” in a menacing email to a prosecutor, warning, “You won’t like me when I’m angry. There’s a lesson in there for all attorneys.” The email is one of several pieces of evidence in unsealed court records examined by the DesMoines Register that suggest U.S. District Judge Stephanie Rose is improperly prodding prosecutors to push for longer sentences.

Rose, who was a prosecutor until she was confirmed to the federal bench in Iowa nine months ago, has reportedly called on prosecutors to seek longer enhanced sentences in at least three cases. In one, she became angry when a prosecutor would not produce evidence that would enable her to jack up the sentence for a man with a former drug conviction, now facing a conviction as a felon in possession of a firearm. When prosecutors refused, citing a plea deal with the defendant, Rose exceeded the sentencing range in the plea deal by two to three years and sentenced him to eight years.

It was two hours after this sentencing that Rose sent the email calling herself the Hulk to the district’s former appellate chief Shannon Olson. Olson would have handled the appeal in this case, but she has since resigned from her post. The defendant’s attorney Bryan Holm, who is pursuing the appeal, writes in his filing:

Most defendants have a hard enough time defending against the prosecuting attorney. … They at least should expect the judge will not be assuming the role of prosecutor-in-chief.

In an email to another prosecutor, Olson complained about the office’s failure to provide evidence for enhanced sentences generally, citing two other cases. Rose has defended her emails as “entirely appropriate, generic contact” in court documents. But the Code of Conduct for United States Judges does not allow communication about the substance of a case with just one party.

Federal sentencing guidelines are already severely draconian, and prosecutors are not institutionally inclined to be seeking shorter sentences. In fact, many federal judges have lamented that their hands are tied by mandatory minimum sentences that put sentencing discretion in the hands of prosecutors and inflate federal prison terms. Some have called on prosecutors to use their discretion to seek lower sentences, as Iowa’s prosecutors may be doing.

New Orleans U.S. Rep. Cedric Richmond (D), the congressman who represents the city where the powerful United States Court of Appeals for the Fifth Circuit hears most of its cases, said yesterday that allegations of racism against one of the court’s judges could render her unfit for the bench. A complaint filed this week against Judge Edith Jones alleges that she claimed African-Americans and Hispanics are predisposed to violent crime, among other things, during a speech at the University of Pennsylvania Law School.

If the allegations against Jones prove true, Richmond said in a letter to Fifth Circuit Chief Judge Carl Stewart, they “demonstrate personal racial and religious bias as well as questionable legal analysis,” and “are incredibly inappropriate for a sitting jurist at any level, let alone a former chief judge on one of the highest level Article III Courts of Appeal.” He also urged Chief Judge Stewart to begin an investigation.

Richmond’s letter also strongly suggests that Jones should no longer remain on the bench if the allegations against her are proven. Her alleged statements, Richmond said, “reflect the personal bias of a person who is not fit to render judgments on some of the most important legal disputes of our time.”

Though the allegations against Jones still need to be investigated, they are entirely consistent with her past record. Jones once joined an opinion claiming that a man whose lawyer slept through much of his trial could still be executed. She’s indicated she would uphold pornography bans and bans on using “the ‘F’ word in public venues.” And she once wrote an opinion claiming that a woman whose co-workers grabbed her buttocks with pliers, stuck their tongue in her ear, and told her that “he would cut off her breast and shove it down her throat” could not sue her employer for sexual harassment — even though the woman repeatedly reported these incidents to management and the company took no meaningful action.

Nor would Jones’ alleged statements at the University of Pennsylvania be the first time she made racially questionable remarks. According to the Houston Chronicle, Jones suggested that people who believe they’ve faced employment discrimination should “[t]ake a better second job instead of bringing suit.”