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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Wednesday, October 29, 2014

"'soft on crime' attack ads are often the best means of removing from office justices they oppose"

Emory Law Professors Joanna Shepherd and Michael Kang, published by the progressive American Constitution Society (a progressive organization), write "as television advertising in a state goes up, state’s judges are more likely to decide criminal appeals against criminal defendants. The analysis also demonstrates that Citizens United exacerbated the influence of money in judicial elections influence on judicial decision making. In the 23 states that had bans on corporate or union independent expenditures, Citizens United’s lifting of these bans is associated with a decrease in justices voting in favor of defendants."

Monday, October 27, 2014

Retention Elections for Kansas Supreme Court

The Kansas Republican Party's chairman and GOP Gov. Sam Brownback last week endorsed efforts by group of crime victims, Kansans for Justice, to get voters to remove two of the court's seven justices in the Nov. 4 election, AP reports.  The two, Justices Lee Johnson and Eric Rosen, were appointed by former Democratic Gov. Kathleen Sebelius.

As in other states, judges almost never lose retention elections in Kansas, the story continues: "Previously, elections haven't been much of a threat to justices' careers. Since the state stopped electing them to the bench in 1960, voters haven't removed any justice. None has received a "yes" vote of less than 62 percent. But the lowest margins were recorded in 2010, when the anti-abortion group Kansans for Life waged a "fire Beier" campaign against Justice Carol Beier."

Retention elections, with no opposing candidate, are designed to be easy for incumbents to win, as I explain more toward the end of this law review article

Friday, October 24, 2014

KS Gov. Brownback Endorses Removal of Kansas Supreme Court Justices

Republican Gov. Sam Brownback said he's voting against retaining state Supreme Court Justices Lee Johnson and Eric Rosen.  In contrast, most Kansas lawyers and judges want to retain them, according to a survey by a committee of bar leaders and leaders of progressive groups such as Kansas Appleseed, Mainstream Coalition, and League of Women Voters.

This has long been the pattern around the country.  When judges are controversial, it's usually conservatives who want to remove them, while progressives and the bench and bar want to retain them.  That was true in Iowa a few years on same-sex marriage and also true going back at least as far as California's Rose Bird in the 1980's.



Wednesday, October 22, 2014

Kansas Gov. Debate Features Judicial Selection

Kansas Gov. Sam Brownback "assailed Democratic challenger Paul Davis Tuesday as a liberal who would appoint Kansas Supreme Court justices overly sympathetic to violent criminals, and Davis accused the Republican incumbent of trying to exploit a high-profile Wichita murder case to boost his re-election chances."  AP explains "The confrontation during their fourth and final debate came on the same day Brownback's campaign released a television ad referencing brothers Reginald and Jonathan Carr, whose death sentences for a quadruple homicide were vacated by the state Supreme Court in July."

The following sentence of this article unfortunately departs from good journalism to use one side's talking points in describing the current Kansas Supreme Court selection system.  "Brownback has long sought more power to directly appoint justices rather than use a longstanding merit system in which a committee comprised of lawyers and members of the public send up suggestions. The system was changed during his administration to give him more power over appointments to the Kansas Court of Appeals, but it takes a constitutional amendment to give him similar authority to appoint justices to the Kansas Supreme Court."

Where is the evidence that the current Kansas system produces more "merit" in the judiciary than the senate confirmation system advocated by Brownback, me and the Framers of the US Constitution (which has had a senate confirmation system for centuries)?  Responsible advocates of that system have stopped calling it "merit selection" because that phrase is just one interest group's propaganda. See pp. 760-62 of the article linked here.

And why describe the committee as "comprised of lawyers and members of the public", which sounds so reasonable by hiding the key issue of who selects the committee?  Why not more accurately explain that the committee is comprised of 5 lawyers selected by their fellow lawyers (the bar) and four non-lawyers selected by the governor?  Having the lawyers selected in such an undemocratic way is the controversial part of the current system but you'd never know that from this article.

Also, the article is simply wrong in saying the committee "send[s] up suggestions."  They are not "suggestions."  They are requirements.  The governor must pick one of the committee's 3 favorites.
The committee (actually "commission") is very powerful and that's why the undemocratic selection of it is so troubling.  But you'd never know that from this article.  Nor would you know that Kansas is the only state that it allows its bar so much power in picking its commission.

More about Kansas Supreme Court selection here and here

Tuesday, October 21, 2014

Unconstitutional Judicial Selection in Indiana?

The Indy Star reports that a federal court ruled the state law governing how judges are elected in Marion County is unconstitutional.  Apparently, the Republican and Democratic parties each nominate half of the candidates eligible to sit on the court so candidates appearing on the general election ballot are almost sure of victory.

Unfortunately, the only alternative to this system discussed in the article is the Missouri Plan, which the article uncritically calls "merit selection."

Monday, October 20, 2014

Against the Missouri Plan (in MO, TN, KS, etc.)

Northwestern University Law Professor John McGinnis expresses views very similar to mine:

I am no fan of subjecting judges to elections. In my view, the far superior system is one, like the federal structure,  in which the elected chief executive of the jurisdiction appoints judges for a term of years upon confirmation of a legislative body. But judicial elections are necessary, if the appointments are made according to so-called Missouri plans, an arrangement that permits  lawyers to create a power center of their own in the judiciary.  Indeed, while elections provide some corrective to the democratic deficit of those plans, they are an insufficient corrective, because voters do not  generally focus on judicial elections. The better solution would be trade the end of the judicial elections for the termination of Missouri plans.

Wednesday, October 8, 2014

"Impartial" information for voters in judicial elections.

Election day is about a month away and that's true as well of judicial elections.  "In November, eight states will choose supreme court justices in contested elections, and justices will stand for retention in fourteen states."  And in some of these states Malia Reddick writes "judicial performance evaluation (JPE) programs are providing citizens with impartial assessments of judges’ performance on the bench."  In Kansas, the JPE program was defunded two years ago.

Sunday, October 5, 2014

Bill to Change Judicial Mandatory Retirement Age

A committee of the New Jersey Legislature on Sept. 22 recommended passage of a proposed constitutional amendment and related bills that could lead to increasing the retirement age for the state’s judges from 70 to 75.

Unconstitutional to Forbid Judicial Candidates from Soliciting Campaign Contributions?

Is it constitutional to prevent candidates in judicial elections from personally soliciting campaign contributions?  The Supreme Court may tell us when it rules in Williams-Yulee v. Florida Bar.

Tennessee Judicial Retention Elections and Judicial Selection Amendment 2

Tennessee Judicial Retention Elections and Amendment 2 (under which that the governor would appoint Tennessee appellate court judges, subject to legislative confirmation) are the subject of an upcoming Federalist Society event involving speakers:

  • John Ryder, Harris Shelton Hanover Walsh, PLLC, and General Counsel of the Republican National Committee
  • Prof. Steve Mulroy, University of Memphis Cecil C. Humphreys School of Law

  • Hosted by the Memphis Lawyers Chapter     

    Monday, September 22, 2014

    A European View of Judicial Selection

    The Judge and His Hangman: Judicial Selection and the Accountability of Judges
    by Bertrand Claude Lemennicier of Paris Sorbonne Université, and Nikolai Wenzel of
    Université Paris II.

    The Abstract:    

    Who gets to determine rights and justice? Which mechanism of judicial selection and accountability is optimal? There is no easy answer. If judges are independent experts, nominated and evaluated by their peers, they will be immune from the pressures of electoral rent-seeking, but unaccountable to the people. If judges are elected, they will be democratically accountable, but subject to the redistributive pressures of the ballot box. If judges are nominated and controlled by politicians, they will face the temptations of bureaucratic self-interest and will not be democratically accountable, but they will be shielded from the Public Choice problems of elections. This paper uses the death penalty in the United States, to measure and compare the impact of different methods of judicial selection. In the end, there is no optimal solution – at least not within a judicial monopoly that ignores the voices of the actual participants.

    Tuesday, September 16, 2014

    Today's Radio Discussion of Kansas Supreme Court Selection

    Today Kansas City Public Radio says "Gov. Brownback's Selection Of Stegall Stirs Debate Over Judge Selection Process" and "A recent change in Kansas law has re-ignited the debate on how judges are selected to the bench. In this edition of Up to Date, Steve Kraske examines the methods for seating judges, and who should hold the final say in how they are chosen.
    Radio discussion guests:
    Stephen Ware is a Professor of Law at the University of Kansas.
    Matthew Menendez is counsel for the Democracy Program at the Brennan Center for Justice at the New York University School of Law."

    Sunday, September 14, 2014

    Obama's Judicial Legacy

    The New York Times says:

    Democrats have reversed the partisan imbalance on the federal appeals courts that long favored conservatives, a little-noticed shift with far-reaching consequences for the law and President Obama’s legacy.

    For the first time in more than a decade, judges appointed by Democratic presidents considerably outnumber judges appointed by Republican presidents. The Democrats’ advantage has only grown since late last year when they stripped Republicans of their ability to filibuster the president’s nominees.
     
    “It’s no surprise that President Obama has been able to transform the ideological makeup of the courts — that happens when you have six years to pick judges and your party controls the Senate,” said Edward Whelan,

    Judicial Elections vs. Federal Method (esp. in Florida)

    The Miami Herald editorializes:

    A member of the Miami Herald Editorial Board was present as the 20-plus members of the Florida Judicial Nominating Commission quizzed and grilled the 15 candidates for 25 minutes each, the final phase of a long process that began in July for the privilege of having their names recommended to Florida’s two U.S. senators.
        
    In this race, voters did not pick the winner; the blue-ribbon panel made up of local legal eagles and community leaders had the honor — and somehow that seemed right and how, perhaps, it should be done for all judicial races.
     The different selection processes for state and federal judges — the first are generally elected, the latter selected — highlighted the anemic slate of judicial candidates and bitter races with plenty of mudslinging that played out in Miami-Dade and Broward last month. Judicial decorum was missing among a number of candidates.  Leaving aside the pros and cons of "mudslinging" in judicial elections, the role of judicial nominating commissions at the federal level raises several interesting questions.  Among them: 1. Who appoints the commission: "the blue-ribbon panel made up of local legal eagles and community leaders"?2. How much deference do Florida's senators give the commissions and why?3. How similar are commissions in the federal system (where ultimate power to select a judge rests with the president and sensate) to commissions in Missouri Plan states in which the commission and governors share power to select judges?

    Read more here: http://www.miamiherald.com/2014/09/04/4328563/the-making-of-a-federal-judge.html#storylink=cpy

    Thursday, September 11, 2014

    Judicial Selection In Tennessee


    Margaret L. Behm & Candi Henry, of Dodson Parker Behm& Capparella, PC, have written Judicial Selection In Tennessee: Deciding'The Decider", 1 Belmont Law Review 143 (2014)
    The abstract:
    The quality of judges and the manner of selecting them matters; this is a basic premise underpinning the rule of law in the United States. From the inception of the United States’ democratic system, the judiciary’s Damoclean Sword has been the threat of subrogation at the hands of the Legislature, and perhaps the easiest way to rattle the sword has been to legislatively interfere with judicial selection — whether by changing the manner of appointment or by simply refusing to fill vacancies. The comments above span the eighteenth, nineteenth, and twentieth centuries, and today in Tennessee the proverbial horse’s hair has never seemed more precarious.