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

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Monday, April 14, 2014

Alaska Judicial Selection Reform Stopped

Bill Raftery reports that this year's effort to reduce the role of the bar on the Alaska Judicial Council  "appears dead."

Wednesday, April 9, 2014

British Perspective on Political Accountability of Judges

"Is There a Case for Greater Legislative Involvement in the Judicial Appointments Process?"

The Study of Parliament Group Paper No. 3, London by Alexander Horne.

It's abstract says "the UK’s top court is more frequently determining essentially socio-political questions. In the light of this expanding judicial role, this paper asks whether new mechanisms for increasing political accountability, such as a parliamentary confirmation procedure, are needed for appointment to the most senior judicial offices (including, but not limited to, the UK Supreme Court)."

"The research examines whether new methods of accountability could be introduced in the UK without impacting on judicial independence."

Tuesday, April 8, 2014

Oklahoma Senate Passes Bill to Reduce Bar's Role on Nominating Commission

SB 1988 as Bill Raftery summarizes would "vacate all current judicial nomination commission members selected by Oklahoma State bar" and end "the Oklahoma Bar’s power to name any future attorney members to judicial nominating commissions and provides instead the House and Senate leaders are to name the attorney members."  Sounds like a bill to bring democratic legitimacy to the nominating commission process often called Missouri Plan or merit selection.  Unsurprisingly, the bar is opposed to a reduction in its power:  "Reforms are not needed for a system attorneys and judges said is not broken."

Monday, April 7, 2014

Important North Carolina Supreme Court Races

Four of the seven seats on the North Carolina Supreme Court are up for election this year.

This passage from the News Observer gives a flavor for some non-partisan judicial elections:

 "Lewis, an N.C. Central University law school alumna who has clerked for Democrat Dan Blue when he was speaker of the N.C. House of Representatives, campaigns as a Republican in the nonpartisan race...Though judicial races are nonpartisan, the field of three will be narrowed during the primary election.  Republican Party leaders have said they are considering endorsing candidates this year in the statewide judicial races."

Read more here: http://www.newsobserver.com/2014/04/04/3759010/nc-supreme-court-races-draw-political.html#storylink=cpy

Saturday, April 5, 2014

Thursday, April 3, 2014

Mandatory Retirement Age for Louisiana Judges

Bill Raftery at Gavel to Gavel reports that the Louisiana Senate has voted to eliminate the mandatory retirement age for judges.

For what it's worth, I think judges can be too old or too young.  I think we should try to get judges with the wisdom that comes from experience, but who are still young enough to be mentally sharp and hard working. Perhaps the ideal ages for judges are from about 50 to 70.  Sure, some younger than that are ready and some older than that are still sharp.  But minimum and maximum ages may do more good than harm overall.

Tuesday, April 1, 2014

Individual Senators Can Block Confirmation of Federal Judicial Nominees

The New York Times editorializes against the blue slip, the practice by which individual senators can block confirmation of federal judicial nominees

Year-end analysis by Russell Wheeler of Brookings:  "Judiciary Committee chair Patrick Leahy rigorously honors a committee tradition of not processing nominees who are opposed by either home-state senator [blue slip].  It is thus pointless for the administration to send the Senate a nominee without those senators’ assurances they will not block the nomination." 

The NYTimes says of the blue slip: "It’s a form of senatorial courtesy that goes back to 1917 or so, giving senators an anti-democratic power never contemplated in the Constitution."

Monday, March 31, 2014

Rhode Island Judicial Nominating Commission

The Providence Journal reports the law governing the Judicial Nominating Commission sets out that “no person shall be appointed at any time to serve more than one term” on the commission.  Yet Governor Chafee’s latest appointee to the commission, D. Faye Sanders, previously served on the commission.  Chafee selected Sanders in January from a list provided by Senate Minority Leader Dennis Algiere.  “At the end of the day, I was having trouble finding people willing to serve,” Algiere said.

Friday, March 28, 2014

New Jersey Judicial Selection

New Jersey Supreme Court justices are nominated by the governor and confirmed by the Senate for an initial 7-year term, after which the governor may renominate the justice, subject to Senate consent, for a position until age 70.

According to the Philadelphia Inquirer:

[Chief Justice Stuart] Rabner's seven-year term ends in June, and [Governor Chris] Christie has not announced plans to renominate him. While the Republican governor hasn't said he will remove Rabner, a Democrat, he has spoken of a need to reshape the state's high court, which he decries as "out of control" and unaccountable to the public. Last summer, he publicly criticized one of Rabner's decisions.

Christie previously bucked decades of precedent by taking two other justices off the court, sparking protest from the legal community and legislative Democrats.

In 2010, Christie did not renominate John Wallace, a Gloucester County Democrat and the court's only African American. It was the first time in modern history that a sitting justice had not been granted tenure. Rabner issued a statement to judges saying he was disappointed by the decision. Christie has since repeated the move with a Republican, Helen Hoens.
The Wallace decision set off a war with the Democratic-controlled Senate, which has blocked most of Christie's high court appointments, resulting in two vacancies.

Florida, Minnesota and Alaska Judicial Selection Bills

These various bills summarized by Bill Raftery seem generally to fit a pattern of Red State Republicans pushing for more democratic judicial selection methods while Blue State Democrats push for more lawyer-controlled judicial selection methods.

Friday, March 21, 2014

Chief Justice Accuses Legislators of Tying Court Funding to Judicial Selection Bill

Kansas Chief Justice Lawton Nuss writes in today's Lawrence Journal World that legislators told the Kansas Bar Association and Kansas District Judges Association that if they supported a bill to reform the Kansas Supreme Court selection process, that would "would induce the Legislature to give judicial branch employees their first pay raise in more than four years."

Chief Justice Nuss adds "I told our 1500 employees that while the justices supported the pay raises, we opposed the trade. Later, one of the crafting legislators publicly denied any linkage between the overdue pay raises and selection of justices and demanded my apology."

Thursday, March 20, 2014

Minnesota Bill to Change from Elected Judges to Nominating Commission

Minnesota Judicial Selection

Law and Culture

The Star Tribune explains that "Currently, most judges do come into office by gubernatorial appointment, but there are rare elections for open seats without an appointee. Once in office, judges stand for re-election and can be challenged by opponents. Most run unopposed."  This has always struck me as part of the "Minnesota nice" culture.  Although officially Minnesota's high court has elections, it seems common for judges to retire mid-term which gives the governor an opportunity to appoint a judge to fill the unexpired term.  Then that incumbent runs un-opposed in the next election.  Contested elections seem to be more common at the supreme court level but the the incumbent usually wins handily and the closest in 2012 was a 12 point victory for incumbent Justice David Stras.  

Mandatory Retirement

Some mid-term judicial retirements seem due to the mandatory retirement age statute, which requires judges to leave the bench at the end of the month they turn 70, as opposed to at the end of the term. See Minnesota Code sections 490.125 and 490.121(21)(d)

A bill to move from this system to a Missouri Plan, nominating commission system advanced out of a senate subcommittee. 

For more on Minnesota judicial selection, see here

Wednesday, March 5, 2014

Politics on the Bench—Iowa and Beyond

Marsha Ternus lost her Iowa Supreme Court position and complained about spending on judicial retention elections.  Now, Roger Pilon of the Cato Institute responds:

"it’s the politics Ternus didn’t mention that seems to have colored her idealized view of judging, shielding her from a deeper account of why our courts have become so politicized. Far from the angels being all on one side, it turns out that Iowa’s “nonpartisan” judicial screening commission and gubernatorial appointment process is deeply political. As a July 2010 report by The Iowa Republican documents, not only were all seven members of the Iowa Supreme Court, save Ternus, nominated by Democratic governors, from lists presented by the commission, but all were or had been Democrats or had made significant contributions to the party or its candidates. All seven, in short, came from one party."

I address Iowa Supreme Court selection and the same-sex marriage case here in a video of a Federalist Society panel in Des Moines.

Monday, March 3, 2014

When Is A Judgeship Vacant?

"When is a judicial office vacant for purposes of allowing a governor to fill the vacancy?" asks Gavel to Gavel's Bill Raftery, who discusses a Florida bill to answer this question.