A dispute between an Arizona judge and the man she sentenced to death for killing a librarian has been on the agenda at each of the 15 private meetings Supreme Court justices have held since late September to consider new cases.
It's not clear why the court so far has been unable to decide what to do with the case of convicted killer Richard Hurles and his claim that Judge Ruth Hilliard was biased against him and should not have presided over his trial or sentencing. The dispute's roots are in the judge's denial of a second lawyer to help in Hurles' capital defense and her defense of that ruling in subsequent judicial proceedings.
The case is again before the justices for their scheduled meeting Friday.
A jury convicted Hurles and Hilliard sentenced him to death for killing librarian Kay Blanton in Buckeye, Ariz., just west of Phoenix, in 1992. Hurles attempted to rape Blanton, stabbed her 37 times and kicked her so hard it tore her liver, the jury found. Arizona courts and a federal trial judge upheld Hurles' death sentence.
But then a panel of federal appellate judges sided with Hurles by a 2-1 vote and ordered a lower court to evaluate whether Hilliard's actions before the trial showed she could not fairly preside in the case.
The decision by the panel of the 9th U.S. Circuit Court of Appeals in San Francisco was written by Judge Dorothy Nelson and joined by Judge Harry Pregerson, both appointees of President Jimmy Carter. Judge Sandra Ikuta, an appointee of President George W. Bush, wrote a lengthy dissent.
The 9th Circuit has a history of questioning death sentences, and the Supreme Court has a history of chastising the circuit for second-guessing state trial and appellate courts.
But until the justices render a decision, it is impossible to know what has triggered their interest and caused the delay.
Hilliard's decision to deny Hurles a second court-appointed lawyer triggered legal wrangling that led to court filings in the judge's name defending her actions. Hurles' lawyers said the documents, along with improper communication between the judge and the attorney general's office, raised questions about her impartiality.
"As a result, Hurles was sentenced to death, not by a neutral arbiter, but by an adversary," the lawyers said.
The state said the appeals court should have deferred to the prior court ruling.
Hilliard has since retired from the bench. She declined to comment on the case.
More calls for Ginsburg to retire
Justice Ruth Bader Ginsburg was still celebrating her 81st birthday Saturday when a prominent liberal legal scholar issued the newest call for her retirement.
Writing on the Los Angeles Times website, Erwin Chemerinsky looked at the potential for Republicans winning control of the Senate in the November elections and said only Ginsburg's prompt retirement when the court finishes its business in early summer can "ensure that a Democratic president will be able to choose a successor who shares her views and values."
Chemerinsky, dean of the University of California at Irvine law school, said the stakes are immense and voiced fears a new Republican majority might refuse to confirm any nominee if Ginsburg waits until next year. A GOP-led Senate might prefer to take a chance on a Republican winning the presidency in 2016, he said. Ginsburg's retirement this year would give President Barack Obama time to name her replacement with Democrats running the Senate and likely to vote for confirmation, he said.
"A great deal turns on who picks Ginsburg's successor," Chemerinsky said. A new conservative justice in Ginsburg's place would threaten abortion rights, gay marriage and the health care law, among other issues on which the court has been split along ideological lines, he said.
For the same reasons, Chemerinsky said Justice Stephen Breyer, just shy of his 76th birthday, also should consider retirement.
If you think you've heard this before, you're right. In 2011, Harvard Law School's Randall Kennedy looked ahead to a possible Obama defeat in 2012 and said the only way to forestall disaster for liberals was for Ginsburg and Breyer to retire with enough time for Obama to appoint their successors.
Ginsburg has spoken often on this topic. In her most recent comments last summer, she said she will do the job as long as she feels up to it. She said she was in good health, and showing no effects from earlier bouts with colorectal and pancreatic cancer. Her travel and workout schedules betray no sign of infirmity. She also has hired several law clerks for the court term that begins in October.
So too has Breyer, who has recovered from a bicycle accident last year that shattered his right shoulder.
Will court open up to media?
There also are new calls to open the Supreme Court to cameras, or at least microphones.
Rep. Mike Quigley, a Chicago-area Democrat, introduced a bill last week that would require live streaming audio of all arguments at the court. It also calls for a study of streaming video and would put annual personal financial reports from all federal judges online. The legislation so far has no other sponsors and has been referred to six House committees.
Days earlier, a coalition of journalists, broadcasters, government watchdogs and liberal interest groups sent Chief Justice John Roberts a letter asking for video and audio of the argument sessions. The Coalition for Court Transparency said that airing arguments would help "narrow the civic education gap" in knowledge of the court that has been found in one public opinion poll after another.
Roberts received the letter, but had no comment on it, a court spokeswoman said.
The advocacy follows what was likely the first video recording of Supreme Court arguments, taken furtively by members of a protest group that favors tighter campaign finance limits.
In the days after the video was posted online, court police stepped up scrutiny of people entering the court to listen to arguments. Some visitors were asked to remove belts and wristwatches before passing through metal detectors, and pens were closely examined for signs they might contain small cameras.