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

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Sunday, January 18, 2015

Judicial Campaign Contribution Buys Outcome of a Case

An Arkansas trial judge pled guilty to reducing a negligence verdict from $5.2 million to $1 million in exchange for contributions to his election campaign for appellate court.

Saturday, January 17, 2015

Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. the Florida Bar

Williams-Yulee v. The Florida Bar, will be argued before the Supreme Court this week: January 20, 2015.

My new article, Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. the Florida Bar, in Vanderbilt Law Review En Banc, Vol. 68, 2015, is part of a Roundtable including several thoughtful articles. My abstract:

 At the level of constitutional law, Williams-Yulee is a First Amendment case about judicial campaign fundraising. The First Amendment issues raised by judicial campaigns and money in politics are vital, and they are not the only issues implicated by Williams-Yulee. Williams-Yulee also implicates broader questions about how judicial election campaigns should be funded and ultimately whether to have judicial elections at all. I bring to Williams-Yulee a longstanding interest in a wide range of legal and policy issues surrounding judicial selection, including issues surrounding the extent and implications of correlations between judicial campaign contributions and judges’ rulings. Williams-Yulee seems an opportune time to reconsider my and others’ longstanding concerns about judicial elections.

Thursday, January 15, 2015

Kansas Gov. Brownback to Pursue Judicial Selection Reform

In this State of the State address this evening, Brownback "promised to take another run at a constitutional amendment that would give him and future governors the authority to pick the justices on the state Supreme Court, with the consent of the Senate", according to the Wichita Eagle which, unfortunately, uses the propagandistic phrase "merit system" to describe the current Kansas Supreme Court selection process. The Eagle describes the current system as involving "a commission of lawyers and lay people" but does not point out the controversial and undemocratic aspect of this system: Kansas is the only state that allows its bar to select a majority of the nominating commission.

As the Eagle says, "The Legislature already changed the selection process for the state Court of Appeals, but changing it for the Supreme Court would require a constitutional amendment."

Monday, January 12, 2015

Renewed Push to Change Kansas Supreme Court Selection

Changing the way Supreme Court justices are selected will be the highest priority for the majority of the Kansas Legislature this year, according to Chapman Rackaway, a political science professor at Fort Hays State University.

"Obviously the governor wants selection of all judges to be consolidated under the governor’s office, and so that’s going to be a front-burner issue for this legislature," Rackaway said. "They’ll get it done. They have plenty of loyalty to the governor. They share his goal on this. So I think that would be a pretty easy thing for them to get done."

I don't know that I agree with this.  First, a constitutional amendment to change Kansas Supreme Court selection requires two-thirds of both houses of the legislature, which is part of why constitutional amendments are pretty rare.

Second, I wouldn't characterize this issue as this governor wanting more power over judicial selection.  Those of us advocating reform have been advocating it through several governors of both parties and, in my case, advocating it nationally regardless of the state's political leanings.  Moving from the Kansas's current bar-empowering version of the Missouri Plan to a senate confirmation is a matter of principle for the long-term, not a way to empower a particular governor at a particular time and place.

Friday, January 9, 2015

SCOTUS to Address Judicial Election Campaign Funding

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.  It is scheduled for argument Jan. 20, 2015.

"The case brings three important questions to the fore, Ware said. The narrow question is whether prohibiting a judicial candidate from personally soliciting campaign funds is constitutional. This question is intertwined with broader questions about how to fund judicial election campaigns and, at the broadest level, whether to have judicial elections at all." 

Kansas Judicial Retention Elections

As I noted in October, The Kansas Republican Party's chairman and GOP Gov. Sam Brownback encouraged voters to remove two of the court's seven justices in the Nov. 4 election.  The two, Justices Lee Johnson and Eric Rosen, both appointed by former Democratic Gov. Kathleen Sebelius, kept their jobs but won less than 53 percent of the vote.

Previously, no Kansas justice had received a "yes" vote of less than 62 percent and that was in 2010, when the anti-abortion group Kansans for Life waged a "fire Beier" campaign against Justice Carol Beier.

As Brad Cooper of the KC Star writes, "Some scholars attribute the increasing profile of retention elections to the way states like Kansas pick judges. The say those systems, which employ a screening process for candidates, are influenced too much by lawyers with liberal inclinations."  
What is this screening process and what role does it give lawyers? 

 As Cooper writes"Supreme Court justices in Kansas are appointed by the governor, who chooses from a panel of three candidates recommended by a screening panel made up of five lawyers and four nonlawyers."  

What is crucial, however, is that those five lawyers are selected in a shockingly undemocratic way.  They are selected in elections open to only about 10,000 people in the state: the members of the Kansas Bar. No other state allows its bar to select a majority of its nominating commission.  Kansas Supreme Court selection is undemocratic and extreme.

I'm not sure about Cooper's statement that "About half the states choose Supreme Court judges using screening committees similar to Kansas’ system." Perhaps this means only that about the half states have a nominating commission, but the keys are:

1. Is if there is a nominating commission, then who selects its members.  Who picks the pickers? 

2. Is the nominating commission able to ensure that one of its nominees joins the court or is the governor's choice among those nominees subject to senate confirmation which, if denied, may require the commission to nominate someone else.

Thursday, January 8, 2015

Wisconsin Judicial Retirement Age and Supreme Court Ideology

In 1977, Wisconsin voters amended the state constitution directing the Legislature to set a mandatory judicial retirement age no earlier than age 70. The Legislature has not in fact done that.  But now at requirement was never acted on.  But now State Rep. Dean Knudson, R-Hudson, said he plans to introduce a bill in the upcoming legislative session setting the mandatory retirement age at 75.

“Thirty-three states have mandatory retirements between the ages of 70 and 75,” Knudson said. “Vermont is the highest with an age of 90.”

If passed by the Republican-run Legislature next year, all judges — except reserve or temporary judges — who are over 75 years old would have to retire immediately or within a matter of months.

According to the Wisconsin State Journal, "Such legislation would give Republican Gov. Scott Walker numerous opportunities to appoint judges to his liking to fill unexpired terms of judges and justices hitting the mandatory retirement age," including three state Supreme Court justices: Chief Justice Shirley Abrahamson, 81, Justice Pat Roggensack, 74, and Justice N. Patrick Crooks, 76.

The Wisconsin State Journal describes Abrahamson as "part of the three-member liberal minority on the court."

Sunday, December 28, 2014

California Supreme Court Appointments by Governor Jerry Brown

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.  And if the court moves too far for the citizenry's tastes, the voters can remove judges at a retention election, which is what happened the first time Jerry Brown was governor of California.  As the NY Times puts it, "
he set out to reshape the powerful California Supreme Court by appointing its first female chief justice. But his pick, Rose Bird, had never served as a judge before and came to be perceived as a liberal ideologue. Ms. Bird, along with two other judges Mr. Brown named to the court, was recalled by voters in an election in 1986."

It is now nearly 40 years later and Brown is again governor and again has named three people to the seven-member Supreme Court — the latest confirmed on Monday.  Of these three, the NY Times writes,  "not one had a day of judicial experience: Two are law professors and the third is an associate attorney general in the Justice Department. They are all graduates of the same law school — Yale — which also counts among its alumni a California lawyer who made a career in politics, Mr. Brown.
Mr. Brown’s most recent choice, Leondra R. Kruger, the associate attorney general, lives in Washington and has never practiced law in California."

More from the Times "Under California law, the governor nominates justices, and, assuming they are approved by the commission, they appear on the ballot every 12 years for an up-or-down vote."

Other views of California judicial selection including Brown's nominee's to the CA SCT.

Friday, December 12, 2014

Criticism of Alabama's Judicial Elections

The Montgomery Advertiser writes "Partisan judicial races harm state's economy."

"Partisan judicial elections create the perception – and often the reality – that the judicial system is not uniformly fair, that the fund-raising required to run campaigns creates a favored class of contributors who might get special treatment in the courts. "

Unfortunately, the Advertiser advocates a vague "merit selection" without addressing the key question of who picks the pickers and without even mentioning the alternative of senate confirmation.

Thursday, December 11, 2014

Tennessee Voters Amend Constitution to Adopt Legislative Confirmation of Appellate Judges

Tennessee voted 61 to 39 last month.  This is the culmination of a long effort to reform a strange situation in which the state constitution required all judges to be elected, yet, appellate judges were selected by a nominating commission system, which was then changed to a different nominating commission system.  Finally, now the constitution has been amended to a "federal model" system in which the legislature confirms the governor's nominee.

The new constitutional provision in Article VI, Section 3 reads:

Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state. Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session. The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article.

Thursday, November 27, 2014

Publicly-Financed Judicial Campaign in New Mexico

The Albuquerque Journal reports the first Republican to be elected to a state appellate court in 12 years is also the first publicly financed candidate to be elected to an appellate court since public financing became available to statewide judicial candidates in 2008.  It was the first time both candidates in a contested appellate court race opted to fund their campaigns with public rather than private dollars.  "Only candidates in partisan elections for the appellate courts are eligible for public financing. Not eligible are judges who have been previously elected and are running in retention elections, in which voters cast “yes” or “no” ballots on keeping them on the bench."

Saturday, November 22, 2014

Do Judges Ever Lose Retention Elections?

Sitting judges nearly always win retention elections because such elections have no opposing candidates. The voters merely get to choose whether to retain this judge and most voters have never heard of most judges on the ballot. However, the rare judge sometimes loses even this sort of election.  It just happened in Arizona for the first time since 1978.

Thursday, November 6, 2014

Montana Supreme Court Election Most Expensive on Record

The NY Times reports on the "most expensive judicial race on record in Montana."  According to the Times, "conservative groups have spent about $640,000 — $469,000 by a political action committee financed by the Republican State Leadership Committee and $170,000 by Americans for Prosperity".  "In response, a political action committee financed largely by Montana trial lawyers and unions has spent $475,000."

The big picture: "Corporate interests, who say they are trying to preserve jobs and create growth, and trial lawyers, who say they represent the voiceless against the wealthy and powerful, have long gone head to head in judicial elections."

Sunday, November 2, 2014

Politics, Ideology and State Supreme Court Justices

Ohio Supreme Court Justice Judith L. French, an appointed Republican seeking to retain her seat in the Nov. 4 election, said at a GOP rally “I am a Republican and you should vote for me. You’re going to hear from your elected officials, and I see a lot of them in the crowd. Let me tell you something: The Ohio Supreme Court is the backstop for all those other votes you are going to cast. Whatever the governor does, whatever your state representative, your state senator does, whatever they do, we are the ones that will decide whether it is constitutional; we decide whether it’s lawful. We decide what it means, and we decide how to implement it in a given case. So, forget all those other votes if you don’t keep the Ohio Supreme Court conservative,” French said.

I like the frank recognition that state supreme courts can overrule the legislature and governor and the implicit acknowledgement that a justice's political philosophy can influence her rulings. I elaborate on these points in Originalism, Balanced Legal Realism and Judicial Selection: A Case Study