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

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Sunday, August 4, 2019

Women and People of Color on State Supreme Courts

Laila Robbins and Alicia Bannon of the progressive Brennan Center find:

"people of color have consistently made up a higher proportion of appointed, as compared with elected, first-time supreme court justices. Incumbent justices of color have also is proportionately
been challenged and lost elections once on the bench, as compared with incumbent white justices.
By contrast, by most measures, women have fared similarly under both elective and appointive methods"

Their full paper is available free of charge

Saturday, June 8, 2019

Pennsylvania Judicial Elections

Pennsylvania now elects judges on a statewide ballot, the legislature is considering electing them by district instead, the Philadelphia Inquirer reports.

Republicans hold majorities in the legislature and, @jbaernews writes, "Republican leaders were, and likely remain, apoplectic about the Democratic-controlled state Supreme Court, which in 2018 ruled legislatively drawn congressional districts unconstitutional and replaced them with new districts, which helped add more Democrats to the U.S. House."

The bill is opposed by the Pennsylvania AFL-CIO

Friday, April 26, 2019

SCOTUS Politics With Video

Recent judicial confirmations have laid bare the political divisions present in the nation’s highest court. In the Dole Institute Student Advisory Board’s spring program, two experts on judicial confirmation, law and legal institutions examine politicization of the Supreme Court. Joining the conversation are Lee Epstein, Ethan A.H. Shepley Distinguished University Professor at Washington University, and Stephen Ware, KU professor of law.

Thursday, April 18, 2019

Election of 19 African American Female Judges in Texas

The election of 19 African American female judges in Harris County, Texas, is the subject of a story in Marie Claire.  It says the population of Harris County, which includes Houston, is 43% Hispanic, 20% black, and 30% white. The November election increased the number of black female judges from eight to 25 of the 75 elected judgeships.

Wednesday, April 3, 2019

New Book on Judicial "Merit Selection" Nominating Commissions

"Judicial Merit Selection: Institutional Design and Performance for State Courts" is a new book by Greg Goelzhauser, a Political Science Professor at Utah State University.

The publisher, Temple University Press writes: "In Judicial Merit Selection, Greg Goelzhauser amasses a wealth of data to examine merit selection’s institutional performance from an internal perspective. While his previous book, Choosing State Supreme Court Justices, compares outcomes across selection mechanisms, here he delves into what makes merit selection unique—its use of nominating commissions to winnow applicants prior to gubernatorial appointment."

Wednesday, March 27, 2019

Senate Confirmation of State Judicial Nominees: Significant Impact?

In 2013, Kansas changed its Court of Appeals selection process to include state senate confirmation of the governor's nominee--a reform that may have just had a significant impact.

On March 15, 2019, Kansas Governor Laura Kelly, a Democrat, nominated District Judge Jeffry Jack to the Court of Appeals. However, a few days later, Gov. Kelly withdrew her nomination after tweets surfaced that showed Judge Jack "voicing his disdain for conservative leaders and Republican lawmakers in sometimes coarse, profane language" according to the Kansas City Star, which reports they "sometimes include F-bombs."

The Star also notes "In a statement regarding her appointment of the judge, Kelly said Jack was chosen from a list of finalists recommended by a committee of lawyers and non-lawyers, and that the choice was based on merit."

In nominating Judge Jack, Governor Kelly said: “Because I value transparency and the judicial merit-selection process, one of my first acts after my election was to create a committee of knowledgeable lawyers and non-lawyers to recommend finalists for the Court of Appeals vacancy...That committee ensured that our next Court of Appeals judge would be selected through an open process based on merit, and I thank the members of nominating committee for their work.”

Under the headline "After Judge Jack fiasco, legislators call for more oversight of court nominations", the Kansas City Star notes that: "One day after Gov. Laura Kelly withdrew his nomination to the state Court of Appeals, Republican lawmakers are pushing to remove Judge Jeffry Jack from his seat on the 11th District Court, and to mandate Senate confirmation of Supreme Court judges."

The Kansas Supreme Court is now chosen through a nominating commission, most of which is selected by the bar. The commission gives three names to the governor, who chooses the final candidate, without senate confirmation.

Sunday, February 17, 2019

Governor Supports Removing Bar Power From Iowa's Judicial Selection

Iowa is one of a few states that privilege lawyers in judicial selection by allowing the bar to select members of the judicial nominating commission. This undemocratic violation of the one-person-one-vote principle is criticized by me in this video focused on Iowa, and in this national article (linked).

Fortunately, a bill to remove this bar favoritism has been introduced in Iowa. The bill would allow democratically elected officials to select members of the judicial nominating commission. Gov. Kim Reynolds supports the bill.

Thoughtful commentary by Vanderbilt Law Professor Brian Fitzpatrick

More on Iowa judicial selection

Saturday, January 26, 2019

Florida Supreme Court Appointments More Conservative

New Florida Governor Ron DeSantis, a Republican, named Barbara Lagoa to the Florida Supreme Court. Lagoa is the first Cuban-American woman to serve on Miami’s appeals court and will be the first Latina on the Florida Supreme Court.

Gov. DeSantis also appointed to the state supreme court, Judge Robert Luck, "the first Jewish justice appointed in over 20 years", according to the The Miami Herald.

The Herald explains that these appointments will likely make the court more conservative as "The Republican governor ... is replacing three retiring Supreme Court justices: Barbara Pariente, Fred Lewis and Peggy Quince, who often sided on liberal issues and against the Republican-controlled Legislature."

Wednesday, January 9, 2019

Judicial Campaign Contributions and Spending

A new article by University of Washington Law Professor Hugh D. Spitzer and Philip Talmadge "reviews empirical research by political scientists who have documented the effect of large campaign donations on how judges decide cases and on the public’s perception of court impartiality."

The article, "then proposes a number of actions that state courts and legislatures could take to control judicial campaign spending. First, we recommend that in jurisdictions with inadequate statutory judicial campaign controls, state supreme courts should act forcefully to impose strict caps on both direct and coordinated contributions to judicial campaigns, using the American Bar Association’s Model Code of Judicial Conduct, Rule 4.4(B)(1). Second, we suggest that state codes of judicial conduct should integrate the parallel mandatory disqualification mechanism in the ABA’s Model Code of Judicial Conduct, Rule 2.11(A). Next, we contend that legislatures have sufficient cause under a strict scrutiny test to protect judicial impartiality and the appearance of impartiality by limiting total judicial campaign committee expenditures and controlling independent expenditures by outside groups. Further, we assert that if legislatures fail to act, the courts themselves have sufficient inherent authority to impose those expenditure limits. Finally, we urge states to adopt public funding systems for judicial campaigns, and we argue that the need for judicial impartiality should provide legislatures with sufficient cause to adopt restrictions that would not be constitutionally acceptable in non-judicial campaigns."

Friday, December 14, 2018

Judicial Selection is Senate GOP Leader's "Most Significant, Long-Term Contribution"

Senate Majority Leader Mitch McConnell (R-KY) called judge confirmations “the most significant, long-term contribution we are making to the country”.

The NY Times writes that while some nominations are controversial in "other cases, the nominees have carried vaunted résumés and commendations from their home-state senators, and in the spirit of bipartisanship, several of the district court nominees were first selected by President Barack Obama. For the most part, those nominees have passed through the Senate (though often along party-line votes) with the ministerial ease once expected for judicial confirmations."

Thursday, November 1, 2018

Reforming SCOTUS For Ideological Balance

As decisions by — and appointments to — the Supreme Court have become increasingly divisive, several reformers suggest replacing justices' life tenure with non-renewable terms of 18 years, such that one term ends every two years. That way, as Nevada Law Professor David Orentlicher explains, "less would be at stake with each nomination, justices could not time their retirements for partisan reasons, and appointments would be divided more evenly between Democratic and Republican presidents."

Orentlicher says "There is a sound argument to be made that Supreme Court reform is constitutionally required. In particular, principles of due process and the framers’ original intent provide good reason to think that neither a conservative nor liberal Court majority should be able to impose its views on the country."

While I doubt such reform is constitutionally required, Orentlicher notes interesting European examples:

  • "In Germany, for example, nominees to the Constitutional Court must receive a two-thirds vote of approval and therefore must appeal to legislators on both sides of the partisan aisle."
  • "In many European nations, high court decisions are made by consensus, or at least a supermajority vote, so justices on both sides of the ideological spectrum have to support the courts’ opinions. The U.S. Supreme Court itself observed a norm of consensual decisionmaking for most of its history. Until 1941, the justices typically spoke unanimously. Only about 8 percent of cases included a dissenting opinion. Now, one or more justices dissent in about 60 percent of rulings."

Thursday, October 18, 2018

Republicans "Take Democrats' Lunch Money" on Post-Kavanaugh Judicial Selection

Liberal advocacy group Demand Justice charges Democrats “didn’t just get stuffed in a locker here; they had their lunch money taken,” in failing to delay confirmation hearings for lower federal courts. Good response that Dems secured an agreement to prevent confirmation of judges before the election but lack the power to prevent confirmation hearings now, and thus actual confirmations during the lame-duck session after election.

One of the judicial nominees, Allison Rushing, is 36 years old, and 11 years out of law school.

Thursday, October 11, 2018

Progressive Arguments on Judicial Selection

The progressive Brennan Center has published Choosing State Judges: A Plan for Reform by
Alicia Bannon. It:

recommend[s] that states do away with state supreme court elections completely. Instead, justices should be appointed through a publicly accountable process conducted by an independent nominating commission. Furthermore, to genuinely preserve judicial independence, all justices should serve a single, lengthy term. No matter the mechanism by which they reach the bench, be it an election or an appointment by the governor or legislature, justices should be freed from wondering if their rulings will affect their job security. 

 I support this "single, lengthy term" view of judicial retention, but think much is lost in the Brennan Center's vague "A judge’s job is to apply the law fairly and protect our rights." This phrase can mislead people into believing that judges merely apply law made by someone else (constitution, statute) rather than make law, which judges have been doing for centuries in making the common law and in interpreting vague provisions of constitutions and statutes. The problem with advocating "an independent nominating commission" is hiding from the public the inevitable lawmaking function of judges (particularly state supreme court justices) and thus allowing powerful insiders (typically the bar) disproportionate power. Several states even go so far as allowing the bar to pick some members of the supposedly "independent" nominating commission. 

Wednesday, October 3, 2018

Will Divided Government Ever Again Confirm a Supreme Court Justice?

Republicans were guilty of "denying Obama his constitutional right to appoint a Supreme Court justice with almost a year left in Obama’s term," according to Thomas L. Friedman's column in the New York Times today, which links an NPR story saying: “Supreme Court picks have often been controversial. There have been contentious hearings and floor debates and contested votes. But to ignore the nominee entirely, as if no vacancy existed? There was no precedent for such an action since the period around the Civil War.”

Friedman writes:

In a speech in August 2016, McConnell boasted: “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy.’”

That was a turning point. That was cheating. What McConnell did broke something very big. Now Democrats will surely be tempted to do the same when they get the power to do so, and that is how a great system of government, built on constitutional checks and balances, strong institutions and basic norms of decency, unravels.

Possibly, but I'm not so sure. I wonder if presidents will still be able to get justices confirmed by opposing-party senates if the president offers deals like "Vote for my SCOTUS nominee and I'll sign your bills on immigration and taxes." Such deals would be an example of the "logrolling" long central to the sausage-making of legislation.