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

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Tuesday, March 14, 2017

Suit Challenges Delaware Court's Political Balance Requirement

Delaware's Constitution, Art. 4, sect. 3, says "three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party." This political balance requirement, a Delaware lawyer's suit argues, is unconstitutional under the freedom of political association guaranteed in the U.S. Constitution.

Friday, January 27, 2017

Bills to Change Hawaii Judicial Retention by Replacing Commission with Senate

Hawaii's judges are appointed for an initial term by the Governor (or, for district judges, the Chief Justice) from a list prepared by the state’s Judicial Nominating Commission. The pick is then subject to Senate confirmation. However, for subsequent terms, the judge need only return to the Judicial Nominating Commission for reappointment; neither the Governor nor the Senate plays a role. (Hawaii Constitution Art. VI, Sec. 3).

The very first bill introduced in the Hawaii House this year calls for a constitutional amendment removing reappointment decisions from the commission and instead giving the Senate the final word in the reappointment of individual judges and justices, according to Ian Lind

The members of the Judicial Nominating Commission are listed here along with who appointed them.

Art. VI, Sect. 3 of the Hawaii Constitution reads:

The governor, with the consent of the senate, shall fill a vacancy in the office of the chief justice, supreme court, intermediate appellate court and circuit courts, by appointing a person from a list of not less than four, and not more than six, nominees for the vacancy, presented to the governor by the judicial selection commission.

If the governor fails to make any appointment within thirty days of presentation, or within ten days of the senate's rejection of any previous appointment, the appointment shall be made by the judicial selection commission from the list with the consent of the senate. If the senate fails to reject any appointment within thirty days thereof, it shall be deemed to have given its consent to such appointment. If the senate shall reject any appointment, the governor shall make another appointment from the list within ten days thereof. The same appointment and consent procedure shall be followed until a valid appointment has been made, or failing this, the commission shall make the appointment from the list, without senate consent.

The chief justice, with the consent of the senate, shall fill a vacancy in the district courts by appointing a person from a list of not less than six nominees for the vacancy presented by the judicial selection commission. If the chief justice fails to make the appointment within thirty days of presentation, or within ten days of the senate's rejection of any previous appointment, the appointment shall be made by the judicial selection commission from the list with the consent of the senate. The senate shall hold a public hearing and vote on each appointment within thirty days of any appointment. If the senate fails to do so, the nomination shall be returned to the commission and the commission shall make the appointment from the list without senate consent. The chief justice shall appoint per diem district court judges as provided by law.

Monday, December 26, 2016

Arkansas Bar Ass'n Proposes Big Change to Arkansas Supreme Court Selection

The Arkansas Supreme Court is currently selected in non-partisan elections. "The Arkansas Bar Association is holding a series of public forums across the state to discuss and
receive comments on a proposed Arkansas Constitutional Amendment on an appointment process
for selection of Supreme Court Justices," according to a press release by the Bar Association.

The proposal recommends “a nine-member judicial nominating commission...be formed to accept applications, interview candidates and nominate three for each vacancy on the Supreme Court.”, according to the Brennan Center, which goes on to say: the governor “would then appoint one of those candidates to the court” for a single, non-renewable, 14-year term.

FWIW, I like the single, non-renewable, 14-year term as that helps judicial independence without going to the extreme of allowing a justice to remain on the state's high court for 20 or 30 years.

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.