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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Tuesday, July 29, 2014

Kansas Supreme Court Selection Issue Stirred by Court's Death Penalty Ruling

Kansas Senate Majority Leader Terry Bruce said the states' supreme court selection process will “absolutely” be an issue when legislators reconvene in January because of The Kansas Supreme Court’s decision last week to overturn two brothers’ death sentences for a notorious robbery, rape and killing rampage. The Republican said the rulings weren’t surprising — the court hasn’t upheld a death sentence in two decades — and many members of the GOP-dominated Legislature believe the justices have shown an “activist” streak.

Kansas City Lawyer’s Pro-Democrat Blog Posts Could be an Issue in Judicial Confirmation

According to the ABA Journal:

Kansas City lawyer Stephen Bough last posted commentary on a political blog in 2009, but he now has some new readers.

The Senate Judiciary Committee is considering Bough’s nomination to be a judge in the Western District of Missouri, and his blog is getting a closer look, according to Legal Times (sub. req.). A personal injury lawyer, Bough posted comments favoring Democrats on the blog when he led a group called Committee for County Progress.

One post expressed hope that voters would oust U.S. Sen. Roy Blunt, R-Mo., who remains in the Senate. Another statement, made in the comments section, said, "You and the 3 other folks who read this blog will agree I shouldn't be a judge.”

Friday, July 25, 2014

California Gov. Jerry Brown's Supreme Court Nominees: Diverse and Progressive

California's supreme court nominating process is an unusual form of democratic appointment because the governor's nominees are confirmed, not by the state senate, but by a three-person "Commission on Judicial Appointments" comprised of the state's Chief Justice, Attorney General, and a senior presiding justice of the state's Court of Appeal.

But it is still democratic appointment so it functions well to gradually move the court left or right with the long-term inclinations of the citizenry.

As Dan Walters writes in the Sacramento Bee:

This week, Brown nominated Stanford law professor Mariano-Florentino Cuéllar, whose record indicates he will be a judicial liberal, to succeed Marvin Baxter, the court’s most obviously conservative member.

Having already named another law professor, Goodwin Liu, to the court, and with another vacancy still to be filled, Brown’s appointees will soon hold three of the seven seats. Because his appointees are in their early 40s, they’ll be making new law for many years.

The remaining four Republican appointees, including Chief Justice Tani Cantil-Sakauye, are relatively moderate. So the Brown appointees will tilt the court to the left with the likelihood that Brown will have one or two more appointments in his second term.

Dan Walters'  piece shows a strong sense of history and Gov. Brown's emphasis on ethnic diversity.

Saturday, July 19, 2014

Voter Knowledge of Judge Candidates’ Judicial Philosophies

Voter Knowledge of Candidates’ Judicial Philosophies by Craig M. Burnett of the University of North Carolina and Lydia Brashear Tiede, University of Houston - Department of Political Science.  The Abstract:      

Judicial elections are typical “down ballot” elections, rarely capturing the interest of most voters. To help distinguish themselves at the polls, judicial candidates have begun to publish their decision-making philosophies with the apparent hope of informing voters. Using survey data collected during the 2012 elections, we explore how well individuals understand such philosophies.

Chris Christie's Judge Choices Criticized

by the conservative Judicial Crisis Network which says "Christie’s definition of a conservative sounds an awful lot like a liberal."
Christie adviser Mike DuHaime punched back: “They should get their facts straight,” DuHaime said. “Gov. Christie has nominated multiple conservatives to the Supreme Court, but several have been blocked by the Democrat state senate."

Politico summarizes: "A conservative judicial group is planning to run $75,000 in digital ads during New Jersey Gov. Chris Christie’s trip to Iowa later this week."


First African-American Missouri SCT Judge Confirmed to Federal Court

Ronnie White lost senate confirmation vote 15 years ago but wins this week.

Nan Aron, president of the Alliance for Justice, said the senate confirmation vote "illustrates the importance of last year's changes to Senate rules. Given the Republican track record on judicial nominations in general—and this one in particular—it's not clear that Judge White would have been confirmed if not for reforms allowing a simple majority vote to end a filibuster."


Monday, July 14, 2014

Canadian Judicial Selection

Ottawa Law Professor Rosemary Cairns Way's paper is entitled Deliberate Disregard: Judicial Appointments Under the Harper Government.  The abstract reads:

This essay examines the apparent disregard of diversity in appointments by the federal government to the Canadian bench. It begins with an examination of the principal academic arguments supporting the claim that Canadians are entitled to a representative bench. After explaining the current federal appointments process, I examine patterns in three identity characteristics of recent appointees (gender, racialization, and professional experience). These patterns suggest, at the least, a failure to pay attention to, and at the most, a deliberate disregard of diversity which is, in my view, inconsistent with constitutional anti-discrimination norms, as well as with both the written and unwritten constitutional guarantee of an independent and impartial judiciary.

Friday, July 11, 2014

Kansas Supreme Court Applicants Include Governor's Former Counsel

As Scott Rothchild puts it, "Six months after having been sworn in as the newest judge on the Kansas Court of Appeals, Caleb Stegall is seeking a promotion to the Kansas Supreme Court."  While Kansas Court of Appeals judges are appointed by the governor subject to senate confirmation, Kansas Supreme Court justices are selected under a system in which a nominating commission (5 of whose 9 members are selected by the bar) screens applicants and submits the names of 3 finalists to the governor.

The senate confirmation system is compared to the nominating commission system here (short) and here (long)

Wednesday, July 9, 2014

Justice Sandra Day O'Connor's Recommended Process for Judicial Selection and Retention

Retired US Supreme Court Justice Sandra Day O'Connor has released her recommended process for selecting and retaining state court judges. 

Justice O'Connor has worked closely with IAALS, the Institute for Advancement of the American Legal System.  The IAALS/O'Connor plan:

"calls for a judicial nominating commission to screen applicants and identify the best qualified candidates, appointment by the governor of one of those candidates, broad-based and objective evaluation of judges’ performance on the bench, and periodic retention elections in which voters have access to judicial performance evaluation results and are able to vote for or against the sitting judge."

In short, it's the usual Missouri Plan or nominating commission system and, to the credit of Justice O'Connor and IAALS, they avoid calling it "merit selection." Unfortunately, they do not answer the key question: who picks the pickers?  In other words, who selects the nominating commission?  

Tuesday, July 8, 2014

US Senate Unanimously Confirms Judge (3d Circuit)

, writes in The Legal Intelligencer "In a rare move for the U.S. Senate, which has been crippled by its partisan divide, it unanimously confirmed Cheryl Krause for a seat on the U.S. Court of Appeals for the Third Circuit this week."

Saturday, June 28, 2014

Judicial Retention Elections in Alaska

Covered by Alaska Public Media:

The Alaska Judicial Council has released its recommendations for retention elections this November: "13 of 14 state judges have been given the thumbs up. But one judge, William Estelle, who sits on the bench in Palmer, has not gained Judicial Council approval."

“Judge Estelle filed 16 untrue affidavits, under oath, from September 2011 through February, 2013, swearing that he had completed or issued decisions in all matters that had been pending before him, for more than six months, when in fact, he had not completed those decisions,”

Wednesday, June 18, 2014

Tennessee Judicial Retention Drama

In August, Tennessee voters will be asked to retain or replace three Supreme Court justices.  NPR says: "The Tennessee Bar Association is all but endorsing three Supreme Court justices sitting for retention elections this year. The group released a poll Friday showing 90 percent of respondents favor keeping the court as it is. The Bar has a policy of not making endorsements in judicial elections. It’s never even polled its members until this year. The association wanted to counter an effort by Lt. Gov. Ron Ramsey to unseat three justices appointed by Democrats."

Dahlia Lithwick weighs in.

Wednesday, June 4, 2014

Selection to the Canadian Supreme Court

News: "Prime Minister Stephen Harper announced the appointment of a Quebec judge to the Supreme Court of Canada on Tuesday, three months after the top court rejected his previous appointment of Marc Nadon."  Three of the court's nine members must be from Quebec.

The National Post reports opposition party "justice critic Françoise Boivin said Judge Gascon has a 'stellar reputation' and that he was a 'great nomination' for the high court....Ms. Boivin said she has no concerns about a lack of any confirmation hearing, a process the Conservatives established that gives MPs their only chance to question Supreme Court justices about their legal background."

Adam M. Dodek, Vice-Dean Research and Associate Professor at the Faculty of Law,
University of Ottawa (Common Law Section), has written Reforming the Supreme Court Appointment Process, 2004-2014: A Ten Year Democratic Audit



Thursday, May 29, 2014

Republicans and Democrats Compromise on New Jersey Supreme Court

Republican New Jersey Governor Chris Christie decided to re-nominate a Democrat, Chief Justice Stuart Rabner, as part of a deal with the Democratic President of the State Senate, Stephen Sweeney. AP reports Christie will have Sweeney’s support for Republican Judge Lee Solomon’s high court nomination in return.

This seems to me a great example of a senate confirmation system working as it should.  When the executive and legislative branches are held by different parties, the judicial branch gets judges from each party.  More on the NJ Supreme Court selection process is here

Wednesday, May 28, 2014

Comparative Judicial Selection and Judicial Supremacy

Different nations select their judges differently.  I believe the more lawmaking power judges (particularly supreme court justices) have, the more appropriate for them to be selected in a democratic way.  The United States is the "example par excellence" of judicial supremacy over the other branches, according to Judicial Supremacy: Explaining False Starts and Surprising Successes by University of Washington political scientists Victor Menaldo and Nora Williams.  They write:

"The example par excellence of judicial supremacy is the United States system. For
example, in the 2000 case of Bush v Gore the judiciary ruled on the constitutionality of a case
that had an impact on both the executive and legislative branches. The Supreme Court ultimately
awarded the contested presidential election George W. Bush. While Al Gore’s party held the
executive, the losing branch abided by the decision of the judiciary instead of taking what could
have been dramatic action."