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

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Friday, January 29, 2016

South Carolina Supreme Court Selection

South Carolina is one of only two states (along with Virginia) in which the legislature selects the supreme court.  In contrast to South Carolina, judges in many states (like federal judges) are appointed in a process that requires the consent of both the other two branches: legislative and executive.  Separation of powers.

Selection of a state Supreme Court justice by the SC General Assembly (legislature) begins with the state constitution which provides that "the General Assembly by law shall establish a Judicial Merit Selection Commission to consider the qualifications and fitness of candidates for all judicial positions on these courts and on other courts of this State which are filled by election of the General Assembly. The General Assembly must elect the judges and justices from among the nominees of the commission to fill a vacancy on these courts. No person may be elected to these judicial positions unless he or she has been found qualified by the commission...."

Now three candidates have cleared screening by the Judicial Standards Commission and are campaigning among legislators. As The State reports, "The election is on Feb. 3 at noon, when the 169 senators and representatives will gather in the House of Representatives. A winning candidate must have 85 votes – one-half of the 169 senators and representatives plus one – to win. A senator’s vote counts as much as a representative’s."

Read more here: http://www.thestate.com/news/local/article56203735.html#storylink=cpy

More on South Carolina judicial selection here.

Tuesday, December 8, 2015

North Carolina Supreme Court Switches to Retention Elections

North Carolina judges are initially selected in contestable elections and most must prevail in contestable elections to win another term of office. But a new law allows NC Supreme Court justices to secure another term by merely winning a retention election, in which voters choose whether or not to retain the justice but there is no opposing candidate. Nationally, judges nearly always win retention elections.

Judges' Impose Tougher Sentences When Nearing Re-Election or Retention Vote

"Judges are more likely to hand out harsh sentences, including death, the closer they get to a re-election or retention election campaign," concludes Kate Berry of the Brennan Center.

Her study, How Judicial Elections Impact Criminal Cases, "looked at 10 empirical studies examining whether and how judicial elections impact criminal justice outcomes. These studies, conducted across states, court levels, and type of elections, all found that proximity to re-election made judges more likely to impose longer sentences, affirm death sentences, and even override sentences of life imprisonment to impose the death penalty."

Monday, November 16, 2015

Judges' Ideologies

Empirical study by Emory law professor Jonathan Remy Nash uses median prison sentence length imposed by a federal trial judge as a proxy for the judge's ideology and "finds no evidence that senatorial ideology has a statistically significant effect" but finds that "the nominating president's ideology does have a statistically significant effect."

Friday, November 13, 2015

Rhode Island Judicial Selection

The Providence Journal reports dealmaking between the governor and legislature on judicial nominations.

Rhode Island gives its judges life tenure.

I think electing judges is much more problematic than appointment of judges by the executive and legislative branches. I don't think I'd want a constitutional restriction on governors nominating legislators. Particularly on a multi-judge appellate court, a recent ex-legislator or two might be healthy diversity. Deal-making in judicial appointments seems to me generally realistic and positive in a well-functioning separation of powers, as opposed to the naive idea that for each judicial vacancy there will usually be one judicial candidate who is clearly the most meritorious in some objective sense. 

Sunday, November 8, 2015

Democrats Win Penn. Supreme Court With Money From Unions and Trial Lawyers

The Daily Call reports two of three open seats "were open because of the resignations of disgraced former justices: in 2013, a Republican convicted of using her taxpayer-paid staff to do political work and, in 2014, a Democrat implicated in the porn email scandal. The other seat became vacant when former Chief Justice Ronald Castille was forced to step down last year after reaching the mandatory retirement age of 70."

All three seats on the Pennsylvania Supreme Court went to Democrats after six years Republicans  controlling the court. "The Democratic takeover was fueled by cash provided largely by organized labor and Philadelphia trial lawyers to help sustain TV advertising. Of the record $11.5 million contributed to the seven candidates, Democrats raised three times as much as the Republicans." The Daily Call reports.

The Atlantic's Tyler Bishop bemoans the Pennsylvania Supreme Court's politicization and scandal, but points out "allowing citizens to directly elect judges makes the process more democratic, allows people to engage key issues before the court, and holds judges accountable for their interpretations of the law."

Friday, October 30, 2015

State Supreme Court Campaign Contributions

State supreme court campaign contributions detailed in a report by the Brennan Center, which is summarized by law professor Rick Hasen.

The progressive Brennan Center report uses strong language about Kansas conservatives: "Bullying in the Heartland—Political Assaults on the Kansas Supreme Court."

It also discusses North Carolina, Ohio and Tennessee. 

Friday, October 23, 2015

Bill to End Election of Pennsylvania Supreme Court

A bill to end elections for Pennsylvania's Supreme Court and other statewide courts was approved by Pennsylvania's House Judiciary Committee. The bill would replace judicial elections with a gubernatorial appointment from a pool of candidates selected by a nominating commission.

The 13-member commission's members would be appointed by the governor (5 commissioners) and majority and minority leaders of the House and Senate (2 commissioners each). Because this commission would be appointed by democratically-elected officials, this commission would be similar to the commission involved in selecting New York's highest court, and would be unlike the commissions involved in appointment the high courts of Missouri, Kansas, Indiana, and several others states that allow the bar to appoint some members of the commission. In short, Pennsylvania's commission would have democratic legitimacy.

Because the Pennsylvania bill is a constitutional amendment it would need approval by both the state House and Senate during two consecutive legislative sessions.

Saturday, October 3, 2015

New York Judicial Elections

“To say it is an election is a joke,” The Wall Street Journal quotes  Michael Cardozo, who served as New York City’s chief legal officer under former Mayor Bloomberg. He's talking about Democratic Party delegates voting to nominate their party's candidate for a judgeship in the Bronx, in which the Democrat "is all but assured the seat in the [general] election because the Bronx is overwhelmingly Democratic."

Several years ago the Second Circuit found New York's judicial election system unconstitutional but the Supreme Court reversed.

As the US Supreme Court explained:

The Supreme Court of New York is the State’s trial court of general jurisdiction, with an Appellate Division that hears appeals from certain lower courts. ...

Over the years, New York has changed the method by which Supreme Court Justices are selected several times.Under the New York Constitution of 1821, Art. IV, §7, all judicial officers, except Justices of the Peace, were appointed by the Governor with the consent of the Senate. See 7 Sources and Documents of the U. S. Constitutions 181, 184 (W. Swindler ed. 1978). In 1846, New York amended its Constitution to require popular election of the Justices of the Supreme Court (and also the Judges of the New York Court of Appeals). Id., at 192, 200 (N. Y. Const. of 1846, Art. VI, §12). In the early years under that regime, the State allowed political parties to choose their own method of selecting the judicial candidates who would bear their endorsements on the general-election ballot.See, e.g., Report of Joint Committee of Senate and Assembly of New York, Appointed to Investigate Primary and Election Laws of This and Other States, S. Doc. No. 26, pp. 195–219 (1910). The major parties opted for party conventions, the same method then employed to nominate candidates for other state offices. Ibid.; see also P. Ray, An Introduction to Political Parties and Practical Politics 94 (1913).

In 1911, the New York Legislature enacted a law requiring political parties to select Supreme Court nominees(and most other nominees who did not run statewide) through direct primary elections. Act of Oct. 18, 1911, ch. 891, §45(4), 1911 N. Y. Laws 2657, 2682. The primary system came to be criticized as a “device capable of astute and successful manipulation by professionals,” Editorial,The State Convention, N. Y. Times, May 1, 1917, p. 12,and the Republican candidate for Governor in 1920 campaigned against it as “a fraud” that “offered the opportunity for two things, for the demagogue and the man with money,” Miller Declares Primary a Fraud, N. Y. Times, Oct. 23, 1920, p. 4. A law enacted in 1921 required parties to select their candidates for the Supreme Court by a convention composed of delegates elected by party members. Act of May 2, 1921, ch. 479, §§45(1), 110, 1921 N. Y. Laws 1451, 1454, 1471.

New York retains this system of choosing party nominees for Supreme Court Justice to this day. 

Saturday, September 26, 2015

Alaska Judicial Selection - Similar Debate to Kansas and Other "Missouri Plan" States

Alaska is one of 9 states that violates basic democratic equality in selecting its supreme court. As in the other 8 states, the insiders with disproportionate power in Alaska judicial selection defend their special powers by arguing they help ensure judges are selected on the basis of merit rather than politics. Sen. Pete Kelly, a Republican from Fairbanks, introduced a bill to reduce the extent to which Alaska Supreme Court selection violates basic democratic equality by giving special powers to the bar.

Tuesday, August 25, 2015

Partisan Battle to Appoint to Virginia Supreme Court

Virginia is one of only two states in which the legislature selects the supreme court. As noted earlier,   A Democratic governor recently filled a vacancy with someone (Justice Jane Marum Roush) the Republican legislature recently chose to replace.As the Richmond Times reports, "If the legislature remains in session, Roush would have to leave the court 30 days from Monday without legislative endorsement. If it remains adjourned, McAuliffe could appoint her to another interim term that would last until 30 days following the next session of the General Assembly.

Partisan Controversy on Oklahoma Judicial Nominating Commission

The Oklahoma Judicial Nominating Commission was accused of playing partisan politics, according to the Oklahoman. The Commission suggested only two candidates, both Democrats, for a judgeship even though required by law to submit three candidates. "The two candidates whose names were provided to the governor were Democrats, and the two who were eliminated were Republican, said Rep. Justin Wood, R-Shawnee. Commission leaders say their search produced only two qualified candidates, and party politics had nothing to do with it."

Sunday, August 16, 2015

Ohio Judicial Selection

Ohio's Chief Justice Maureen O'Connor advocates several changes to the state's judical elections, including holding them on odd years, and moving judicial candidates closer to the top of the ballot. She also supports what cleveland.com describes as "voter education" about judicial candidates, which "will take shape Sept. 1 with the launch of a website at judicialvotescount.org that will allow candidates to post detailed profile information -- albeit on a voluntary basis."

Friday, August 7, 2015

Virginia Supreme Court Selection

Virginia is one of only two states in which the legislature selects the state's highest court. As the Washington Post explains, "Judicial appointments generally are left to the legislature. But when it’s not in session, the governor may fill a vacancy." A Democratic governor filled a vacancy with someone the Republican legislature recently chose to replace.