Judicial elections, democratic appointment (e.g., senate confirmation), and the Missouri Plan (a/k/a "merit selection")

Judicial selection and other videos

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Friday, December 2, 2016

Ohio Supreme Court Elections Leave Republicans in Control

Republicans won all three elections to the Ohio Supreme Court this year. "Republicans retain control of the state’s high court by a 6-1 margin", according to the Toledo Blade.

Monday, November 21, 2016

Montana Supreme Court Election

As is often true of contested judicial elections around the US, the Montana Supreme Court race between Dirk Sandefur and Kristen Juras involved a funding battle between businesses and the trial lawyers who sue them. According to the Montana Standard,

More than $1.1 million has been raised by Juras, Sandefur and organizations supporting their campaigns, according to state campaign finance records. The Republican State Leadership Committee’s Judicial Fairness Initiative, a DC-based political group funded primarily by large corporations, has bought ads to attack Sandefur, while various political action committees of the Montana Trial Lawyers Association have lined up to oppose Juras in what could be another record-setting fundraising year.

Sandefur won the election.

Tuesday, November 1, 2016

Wednesday, September 21, 2016

2016 Montana Supreme Court Candidates Debate

Listen to the debate between Kristen Juras and Dirk Sandefur on Montana Public Radio. Whoever is elected will serve eight years as one of seven justices in Montana’s highest court.

Retired Montana Supreme Court Justice James Nelson explains that this is just one of three elections to the court this year, but in the other two Chief Justice Mike McGrath and Justice Jim Shay are running unopposed.

Sunday, September 18, 2016

Judicial Retention in Hawaii

The progressive Brennan Center praises Hawaii's system of judicial retention, which uses a commission to determine whether sitting judges should be retained for additional terms. Of course, the important question is who appoints the commission. While the Brennan Center is not troubled that some members of the commission are appointed by the Hawaii State Bar Association, I think it undemocratic to weight the votes of some citizens (lawyers) more than the votes of other citizens in determining who holds powerful positions influencing the direction of the law.

Friday, September 9, 2016

NY Times Depicts Kansas Battle as Judicial Independence vs. Politicized Courts

Predictably-progressive oversimplifications by the Times include "In the Kansas system, judges are appointed by the governor," The Times fails to mention the bar's extraordinarily large role in selecting Kansas Supreme Court justices and the politicization that produces.

Sunday, September 4, 2016

Judicial Selection in Guatemala

Stanford University Fellow for Human Rights, Mirte Postema's Study of Guatemala's Judicial Selection Processes "Reforms Alone are Insufficient to Strengthen the Judiciary."

The Abstract:    
Hundreds of millions of dollars have been spent on judicial reform in Central America. This has led to the creation of new infrastructure and laws, but the structural problems in the judiciary remain. The author analyses this problem by means of the examination of Guatemala's 2014 judicial selection processes which, despite the existence of a fairly sophisticated legal framework and transparency requirements, were extensively manipulated by third actors. Subsequently, the author provides recommendations about how to improve this situation and move forward with the strengthening of the judiciary.

Postema writes about judicial nominating commissions somewhat similar to those often used in the United States:

"In an attempt to depoliticize the judicial selection processes, Guatemala selects its Attorney General, Supreme Court and Court of Appeals judges by means of Comisiones de PostulaciĆ³n [Nominating Commissions] (CdP). The Constitutional Court is exempted from this process, but other authorities are selected by mechanisms similar to CdPs, to which the principles of the LCP also apply. CdPs are ad hoc bodies that are mandated by the Constitution to establish a shortlist of candidates from
which Congress—or, in case of the selection of the Attorney General, the President—makes the
appointments. The deans of the country’s law schools form the core of CdPs. When judges are selected,other members of the legal community—representatives of the bar association and of judges—also take part in CdPs.

Thursday, July 28, 2016

Partisan Judging Data by Joanna Shepherd and Michael Kang

The progressive American Constitution Society released a study finding judges tend to rule for members of their own party in deciding election disputes, and these effects are exacerbated by campaign donations. The report by Emory Law professors Joanna Shepherd and Michael Kang finds that “[j]udicial partisanship in election cases increases, and elected judges become more likely to favor their own party, as party campaign-finance contributions increase.” The authors also highlight that “[t]his influence of campaign money largely disappears for lame-duck judges without re-election to worry about.”

Another progressive organization, the Brennan Center, emphasizes two quotes from the study:

(1) “[i]f judges are influenced, consciously or not, by party loyalty in election cases, they are likely tempted to do so in other types of cases as well.”

(2) “reformers have advocated, among other things, public financing of state judicial campaigns; term limits for state judges; and various merit selection, judicial evaluation, and disciplinary systems,” and this study “bolster[s] the case for judicial selection reform.”

This study is valuable in providing data on the extent to which judges' politics matter to their rulings. However, progressives often err in thinking something like "elected judges are especially political so we should reduce the influence of judicial campaign money or, even better, replace judicial elections with merit selection." This is deeply wrong in several ways.

To some extent, judges should be political. Judges makes law. Lawmaking is part of their jobs, and has been for centuries, especially for high court judges. Lawmakers should, in a democratic society, be selected democratically. "Merit selection" is usually a euphemism for a method of judicial selection that violates the basic principle of democratic equality--the rule of one-person, one vote--by making a lawyer's vote worth more than another citizen's vote. "Merit selection" is a propaganda term for the nominating commission often known more-neutrally as the Missouri Plan. These commission systems often compound their violation of democratic equality by operating in secret so the commission's key vote is hidden from the public and accountability. Finally, Missouri Plan systems usually retain the problems of judicial elections because they usually subject sitting judges to retention elections.

Rather than the anti-democratic, secrecy, and campaign-contribution problems of the Missouri Plan, states should replace judicial elections with a judicial selection appointment process modeled on that found in the US Constitution. In about a dozen states governors nominate judges and they are confirmed by the senate or other popularly-elected body. This judicial appointment process selects judges with a form of indirect democracy, better for the rule of law than the direct democracy of electing judges.

As to judicial retention, the US Constitution gives federal judges job security which strengthens judicial independence compared to requiring judges to win elections to keep their jobs. States don't have to go as far in the direction of judicial independence as life tenure, as a long non-renewable term (say 14 or 20 years) would probably work about as well.  

Monday, July 18, 2016

Kansas Increases Openness of the State's Judicial Selection

A bill that will make the Kansas Supreme Court Nominating Commission subject to the state’s open records and meetings laws has been signed by Gov. Sam Brownback. This new law should fix one of the Kansas Supreme Court selection system's major problems, hiding the votes of the commission, as hopefully the commission and courts will interpret this law to require the commission's votes be public records.

The other major problem with the Kansas Supreme Court selection system, the undemocratic selection of the commission, remains. Several members of the commission are selected in elections open only to members of the bar. However, secrecy in these elections has also been reduced by the recent bill, as it requires the clerk of the Kansas Supreme Court to submit a list of the lawyers eligible to vote to the Kansas Secretary of State’s Office ahead of these elections.

Finally, the bill requires the governor to disclose applicants for the Court of Appeals, the Wichita Eagle explains.
d more here: http://www.kansas.com/news/politics-government/article78389772.html#storylink=cpy

Wednesday, May 4, 2016

Senate Confirmation of Judges Advances in Oklahoma

The Oklahoma Senate approved a bill that would bring senate confirmation of judicial nominees to the state and reduce the Judicial Nominating Commission to issuing an advisory rating of “qualified” or “not qualified.”
As the Daily Ardmoreite explains, "the JNC consists of six attorneys selected by the Oklahoma Bar Association, six commissioners appointed by the governor, one commissioner appointed by the Senate President Pro Tem, and one commissioner appointed by the House Speaker. The remaining commissioner is selected by the other members of the JNC."

Monday, May 2, 2016

Transparency in Judicial Selection

The Kansas Legislature passed a bill to increase the transparency of the state's judicial selection. It would subject the bar-empowering Supreme Court Nominating Commission to the Open Records Act and Open Meetings Act, and require the governor to disclose applicants for the Court of Appeals.

Brian Lowry of the Wichita Eagle writes "The nominating commission for the Supreme Court is made up of four members appointed by the governor and five elected by the state’s practicing attorneys. The bill will require the clerk of the Kansas Supreme Court to submit a list of the attorneys to the secretary of state’s office prior to an election of attorney members, a provision that had been opposed by the Kansas Bar Association and Democratic lawmakers."

Read more here: http://www.kansas.com/news/politics-government/article75057252.html#storylink=cpy