A Toledo (Ohio) Blade editorial asserted in a rather understated editorial, “Impeaching judges for making unpopular decisions would subject the nation’s judiciary to a political circus.”

The editorial criticized state Rep. John Becker’s recent call for Congress to start impeachment proceedings against U.S. District Judge Timothy S. Black over a controversial decision that involved marriage for a same-sex couple.

Justice At Stake (JAS) Executive Director Bert Brandenburg said in a statement, “If you got to a situation where every time a decision might be unpopular to somebody, and you threatened to impeach them, you would create a political circus around the judiciary.”

The editorial quoted Brandenburg as pointing out that no state or federal judge has been impeached and removed for an opinion issued from the bench. Gavel Grab has more.

The Minnesota Lawyer reports that prescription drugs are now the second most commonly abused substance among lawyers surveyed by the ABA Commission on Lawyer Assistance Programs. Alcohol is still the most common.

Prescription drugs accounted for as many matters handled by the state programs as cocaine, methamphetamines and heroin, according to a new report in the ABA Journal:

When asked to provide a breakdown of the type of substance abuse and addiction issues handled by the lawyer assistance programs, the averages were: 75 percent of the substance abuse/addiction issues concerned alcohol, 10 percent concerned prescription drugs, 5 percent concerned cocaine, 3 percent concerned marijuana, 2 percent concerned methamphetamine, 2 percent concerned hallucinogenic drugs, and 1 percent concerned heroin. Over-the-counter drugs and “other” accounted for the other 2 percent.

The most common prescription drug issue concerned pain medication, a problem, on average, in 74 percent of such cases.

The most common mental health issues were depression (41 percent) and anxiety disorders (23 percent).

Justice Minister Peter MacKay announced Tuesday that the government will file a formal reference to the Supreme Court of Canada to clarify whether Stephen Harper was legally entitled to select a Federal Court judge to fill a vacancy on the Supreme Court.

“Quebec set to make unprecedented challenge to Nadon’s Supreme Court appointment.”

The Toronto Globe and Mail’s Sean Fine and Kim Mackrael have an article that begins, “The Quebec government says it will challenge the appointment of Justice Marc Nadon to the Supreme Court of Canada, in what legal scholars say appears to be a first in the court’s 138-year history.”

The background is pretty simple:

The Supreme Court Act mandates that three judges from the province sit on the court, but the Act contains no residency requirement for Quebec nominees. Justice Nadon practised law with a Montreal firm for 20 years before joining the Federal Court in 1993.

Justice Nadon stepped temporarily aside last week shortly before he would have heard his first case when Toronto lawyer Rocco Galati challenged his nomination in a filing in Federal Court. Mr. Galati alleged the appointment was illegal under the Supreme Court Act because Justice Nadon was appointed from the Federal Court of Appeal, and judges on the Federal Court’s two divisions are not expressly included among those who qualify to be on the Supreme Court.

Justice Nadon’s absence left the court with just two judges from Quebec.

The Supreme Court opened its new term this month, and there are at least two pending cert petitions, both in murder cases, raising Confrontation Clause issues.

The first is Berkman v. Indiana, No. 12-10691, seeking review of Berkman v. State of Indiana, 976 N.E.2d 68 (Ind. Apps. 2012), transfer denied, 984 N.E.2d 221 (Ind. 2013).   The Indiana court held that a discovery deposition provides an opportunity for cross-examination sufficient to satisfy the Confrontation Clause.  There is conflict among states on this point.  Here are links to the petition, the appendix to the petition, the brief in opposition, and the reply brief in support of the petition.

The second is New Mexico v. Navarette, seeking review of State v. Navarette, 294 P.3d 435 (N.M. 2013).  The New Mexico Supreme Court held that an autopsy report performed as
part of a murder investigation is testimonial for purposes of the Confrontation Clause.  Here are links to the petition and the reply brief in support of the petition, and here is one to the brief in opposition.

The State of Washington’s judicial ethics body reprimanded a judge this week for refusing to officiate same-sex wedding ceremonies.

Thurston County Superior Court Judge Gary Tabor said he was uncomfortable performing such ceremonies because of his religious beliefs. Washington voters approved same-sex unions in a referendum last year.

Like many states, the judges in Washington are not required to perform wedding ceremonies.  Because judges are not required to perform weddings, Judge Tabor thought that would allow him to refuse to officiate at same-sex ceremonies, as long as another judge could be found to perform the duty.

When his practice was questioned, Judge Tabor said he would stop performing marriages altogether to avoid the accusation of bias. But the Judicial Conduct Commission filed a complaint against him anyway, saying Judge Tabor’s refusal to perform same-sex weddings violated the state’s anti-discrimination law (which names sexual orientation as a protected class).

In response to the complaint, Judge Tabor has agreed to sign a formal admonishment in which he agreed his actions “appeared to express a discriminatory intent against a statutorily protected class of people, thereby undermining public confidence in his impartiality.”

John D. Bessler is the husband of United States Senator Amy Klobuchar and teaches at the University of Baltimore School of Law.  He is a terrific guy and a great scholar.

Professor Bessler has posted Tinkering Around the Edges: The Supreme Court’s Death Penalty Jurisprudence (American Criminal Law Review, Vol. 49, No. 4, Fall 2012, pp. 1913-1943) on SSRN.

Here is the abstract:

This Essay examines America’s death penalty forty years after Furman and provides a critique of the Supreme Court’s existing Eighth Amendment case law. Part I briefly summarizes how the Court, to date, has approached death sentences, while Part II highlights the incongruous manner in which the Cruel and Unusual Punishments Clause has been read. For instance, Justice Antonin Scalia-one of the Court’s most vocal proponents of “originalism” conceded that corporal punishments such as handbranding and public flogging are no longer constitutionally permissible; yet, he (and the Court itself) continues to allow death sentences to be imposed. The American Bar Association (“ABA”) has yet to fully weigh in against the death penalty, though it has taken notice of the bevy of problems associated with it. The ABA’s two death penalty-related projects, as well as the justice system’s considerable experience with capital cases, plainly show that the reality of the death penalty’s administration differs substantially from consideration of capital punishment in the abstract.

The budget measure gives the federal courts a slight bit of relief from sequester-related budget cuts.

The legislation boosts last year’s $6.65 billion in funding for the Judicial Branch by $51 million on an annualized basis—or, just under eight-tenths of one percent.  It appears the number may at least provide some temporary relief to keep the defender services and a few other things from just collapsing.

Under the heading “NY court weighs ‘too intoxicated’ murder defense,” How Appealing reports an Associated Press article which begins, “Three people convicted of murder in deadly crashes urged New York’s highest court Tuesday to throw out their convictions, arguing they were too intoxicated to know the threat they posed to others.”

The story was also reported in the New York Times:

Juries convicted all three of second-degree murder after prosecutors argued successfully that they had shown a “depraved indifference to human life.” But those convictions were brought as a group before New York State’s highest court for review on Tuesday, where a panel of judges wrestled with a thorny legal question: Can people become so intoxicated that it is impossible for them to be in the state of mind the law defines as depraved indifference?

During more than an hour of intense questioning from judges, defense lawyers argued their clients were too drunk or high to understand what they were doing and were oblivious to the threat they posed to others. Prosecutors countered, often in emotional terms, that the three drivers had enough presence of mind to know they were endangering other drivers but did not care . . .

In a series of recent cases, culminating in the 2006 ruling People v. Feingold, the Court of Appeals has held that depraved indifference is a state of mind. Those rulings have given prosecutors the extra burden of proving that a defendant consciously and willingly showed “an utter disregard for the value of human life” when proving second-degree homicides, especially in drunken-driving cases.

Erin Murphy (New York University School of Law) has posted License, Registration, Cheek Swab: DNA Testing and the Divided Court (Harvard Law Review, Vol. 127, 2013) on SSRN.

Here is the abstract:

Maryland v. King looks on its face like just another Fourth Amendment dispute — with civil libertarians on one side and law enforcement on the other — garnered no special attention. But King is no ordinary Fourth Amendment case. At first glance, King simply upheld the Fourth Amendment constitutionality of a state statute authorizing the collection of DNA from arrestees. But the opinion represents a watershed moment in the evolution of Fourth Amendment doctrine and an important signal for the future of biotechnologies and policing. This Comment places King into context from three different vantage points, each one step removed. First, this Comment reads between the lines of the majority opinion, in light of the greater constellation of facts and claims placed before the Court, to underscore the significance of what was not said about the constitutionality of arrestee DNA collection. It next considers King as it exemplifies the judicial response to forensic DNA typing more generally, and imagines its precedential value in future biometric cases. Finally, the Comment closes by situating King in the broader landscape of the Court’s recent Fourth Amendment jurisprudence and analyzing its insights for the evolution of the field as a whole.