Who Does Governor Barbour Appoint to Replace Justice James Graves?
Any doubts about whether Justice James Graves would be confirmed to serve on the Fifth Circuit Court of Appeals seemed to be put to rest on Friday with Mississippi Republican Senator Roger Wicker's endorsement of Graves.
So how does Graves' imminent departure impact the future of the Mississippi Supreme Court? It's hard to say at this point, but the possibilities are frightening. Graves is viewed as a left of center justice. His replacement will be appointed by the conservative Governor Haley Barbour. That is potentially bad for both the legal rights of individuals and the legal profession in Mississippi.
Barbour will face pressure from tort reformers to appoint a replacement for Graves who appears certain to uphold the legislative caps on non-economic damages and will support a reversion to the Court's pattern under Chief Justice Smith of going years without affirming a plaintiff's verdict. That practice was exposed in 2008 by respected Jackson defense lawyer Alex Alston.
According to Alston, in the 4 1/2 years prior to June 2008 the Mississippi Supreme Court reversed 88% of jury verdicts that favored wronged victims. During the same time period, the Court reversed 0% of jury verdicts that favored big business. Alston went public with his criticisms. The Court's swinging too far to the right is widely believed to be the primary reason that Chief Justice Smith lost his re-election bid to Jim Kitchens.
Smith's defeat signaled that any Supreme Court candidate who can be portrayed as always voting for one side is vulnerable in an election. After Smith's defeat, Justice Waller became Chief Justice and the Court's decisions in civil cases began to reflect a swing from the far right to the middle. No longer are defense lawyers telling plaintiff lawyers that if you get a verdict, we'll just appeal and get you reversed. No longer are defense lawyers bragging that: “there is not an argument I can make that (insert name-you know who I mean)will not buy.”
Incidentally, most of the defense lawyers who made these jokes were morons. They just couldn't figure out why plaintiff lawyers weren't filing cases any more. As if plaintiff lawyers were motivated by creating billable hours for defense lawyers. Smart defense lawyers were just as concerned about the Court's decisions as plaintiff lawyers and are now just as happy about the Court's moderation.
Some people speculate that Governor Barbour and Mississippi conservatives are happy to get Justice Graves off the Supreme Court so that they can appoint a more conservative successor and try to roll back the progress made under Chief Justice Waller's leadership.
So who does Barbour appoint? Unless he wants to commit political suicide it must be an African-American, since Graves is the only African-American on the Court. The name that I have heard most often is Jackson attorney La'Verne Edney, who is a partner in the Brunini Law Firm and currently serves as General Counsel of the Mississippi Volunteer Lawyers Project. Edney's background is as a defense lawyers and she is perceived as being a possible conservative vote on the Court.
Hinds County Chancery Court Judge Denise Owens is a good judge who would be a popular pick in the Bar. But her husband and brother are prominent plaintiff lawyers, so her appointment might not be popular in all circles. Another possibility is Chancery Court Judge Vicki Barnes of Vicksburg. I have been impressed with Judge Barnes in my limited appearances before her and she has shown an attention to detail that would be a plus for an appellate judge.
There has also been speculation that Governor Barbour might promote Chief Judge Leslie King from the Court of Appeals, giving Barbour an additional appointment. Proponents of this theory point out that Barbour's record of appointing minority judges is still bad. Elevating King would allow Barbour to appoint two minority judges on the State's appellate courts.
One factor with Governor Barbour that is often over-looked is whether the appointee can win an election for the seat. It is my understanding that Barbour places great weight on this factor. He wants his appointees to win their next elections, presumably because they are a reflection on his political legacy.
At this point, I am not aware of a clear favorite for the seat. My guess is that strong rumors will emerge within the next few weeks. I will do my best to stay on top of this developing story and post what I am hearing.
"Judge Barnes...has shown an attention to detail "--understatement of the decade? Joke aside, she is a wonderful judge who certainly makes sure she gets it right each and every time.
So who does Barbour appoint? Unless he wants to commit political suicide it must be an African-American, since Graves is the only African-American on the Court.
A gross exaggeration. Barbour does not care about black or liberal votes, and neither does his base.
Edney seems likely, b/c of Barbour's fondness for Ed Brunini. I would love to see Denise Owens on the MSSC, as she is a very sharp judge who knows b.s. when she sees it, but I can't imagine Barbour's picking her. (The relatives might be a plus -- she would have to recuse!) King is a joke as a Barbour pick. I don't have the privilege of having made Judge Barnes's acquaintance.
But I would expect Barbour's choice to be determined more by "reliably conservative & pro-business" rather than melanin or gonads.
P.S. -- "Whom" will Barbour appoint, not "Who." Inverting grammatical order to make a question triggers the impusle to say "who" (because the subject of a sentence is usually at the front). The way to avoid this is to mentally un-invert the clause: "Barbour will appoint whom ...."
Btw, Alston's "research" always annoys me when I see it cited. How many jury verdicts "favored big business" in those 4.5 years? What about the MSSC reversing summary judgments or directed verdicts for "big business," which certainly seems like a win for plaintiffs?
I don't doubt it's been a conservative court -- this is a conservative state -- but pseudo-statistical factoids should not be cited so trustingly.
Anderson's last comment raises an interesting point. It is true that the Supreme Court was more balanced that era when ruling on issues other than plaintiff jury verdicts. For instance, the Court developed the rule where failure to timely assert an affirmative defense while voluntarily partcipating in the litigation acts as a waiver of the defense. But Alston's stats were relevant because they supported what had become the perception in the legal community: that the Court would not affirm a plaintiff verdict.
I believe that the off the record position of the Court's justices was that perception was not reality and that you have to judge each case on its merits. The problem with that, however, is that perception is reality in litigation. It is the uncertainties in the result and trial and on appeal that motivates parties to settle. When the perception is that trial is a free-roll for defendants, then it makes it very difficult to settle a case.
That is how I thought when I was defending cases in the early 2000's and I was not alone. When I was on the plaintiff side of a case, defense lawyers were making similar assertions in negotiations.
Did Alston ever publish his research?
I recall that Jim Smith was (rightly) mocked for refusing to do so with his own contention that Alston was wrong.
I thought Alston was publishing a book, but I never saw it.
What about Jackson, Mississippi City Attorney Pieter Teweewission, he would be a good pick for consideration, who in my belief would be a great replacement for Justice James Graves. He pays attention to details, was a Special Attorney in Jackson, Ms for Childs Support Enforcemtn, and floted to Clarksdale, MS to deal with the flooding of unworked cases, until they were caught up. I lost track of him for a few years, but now he's Senior Staff attorney for the City of Jackson , MS.
I have heard that several Republicans want Bill Jordan to replace Graves. Bill is an African Amercian attorney who is a life-long Republican. He ran for Attorney General against Mike Moore. He also made a run for Congress. He practices law in Jackson, is an evangelical Christian and serves as Utica municipal judge. Does anyone else know about his prospects as a candidate?