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

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Friday, May 1, 2015

Tennessee Supreme Court Selection

Tennessee voters in November amended the Tennessee Constitution to a "federal model" system in which the legislature confirms the governor's nominee to the Tennessee Supreme Court. 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.

Legislation necessary to carry out this system divides the Tennessee House and Senate, as explained by Bill Raftery. The Senate passed a bill in which the nominee would have win separate votes in each house of the legislature, while the House approved a bill in which confirmation would be a single vote that combines all members of the house and senate.

Sunday, April 26, 2015

North Carolina Judicial Elections May Become Partisan

Elections for North Carolina appellate court judgeships have been officially nonpartisan since 2004, but AP reports that Republicans are trying again to shift them back to partisan races. The North Carolina "House tentatively agreed Thursday to legislation to require state Supreme Court and Court of Appeals candidates run with their party affiliation on the ballots."

Monday, April 13, 2015

Personal and Ideological Clashes on the Wisconsin Supreme Court

The Milwaukee Journal Sentinel reports:

A day after voters approved changing the state constitution to allow members of the Wisconsin Supreme Court to elect their leader, Chief Justice Shirley Abrahamson on Wednesday sued the six other members of the court to hold onto her job.

Supporters of the measure — which passed 53% to 47% — had said it would help heal relations on a court that has been marked by personal and ideological clashes in recent years.

Abrahamson, the longest-serving justice in Wisconsin history, filed her lawsuit in federal court in Madison. In it, she contends she should be able to remain chief justice until her term on the court ends in July 2019.
Abrahamson is a liberal leading a court controlled by conservatives. Over the years, she has clashed, at times fiercely, with both her allies and opponents, and her adversaries saw the constitutional amendment as a way to sideline her.

According to a separate article in the Milwaukee Journal Sentinel, State Supreme Court Justice Ann Walsh Bradley secured a third, 10-year term on the court, defeating challenger Judge James Daley who "attacked her as a liberal activist."

Friday, April 3, 2015

West Virginia Judicial Elections Drop Party Labels

Gov. Earl Ray Tomblin has signed House Bill 2010, which requires the elections of justices of the West Virginia Supreme Court, circuit court judges, family court judges and magistrates to be nonpartisan and by division.

Monday, March 30, 2015

NY Times Connects Kansas School Funding with Kansas Judicial Selection

Unfortunately, the Times ("Under the current system, the governor chooses from three nominees put forth by a nine-member committee that includes lawyers and appointees of the governor") does not say who selects those lawyers, which is the problem with the current Kansas Supreme Court selection process.

Former Chief Justice of Alabama "Disgusted" by What She Had to Do to Get Elected

Sue Bell Cobb writes in Politico "I never quite got over the feeling of being trapped inside a system whose very structure left me feeling disgusted."

Justice Cobb's article entitled "I Was Alabama’s Top Judge. I’m Ashamed by What I Had to Do to Get There: How money is ruining America’s courts" says

"In Alabama, would-be judges are allowed to ask for money directly. We can make calls not just to the usual friends and family but to lawyers who have appeared before us, lawyers who are likely to appear before us, officials with companies who may very well have interests before the court. And I did."

Justice Cobb: "When a judge asks a lawyer who appears in his or her court for a campaign check, it’s about as close as you can get to legalized extortion. Lawyers who appear in your court, whose cases are in your hands, are the ones most interested in giving. It’s human nature: Who would want to risk offending the judge presiding over your case by refusing to donate to her campaign? They almost never say no—even when they can’t afford it."

Bringing back memories of when I lived in Alabama, Justice Cobb mentions the notorious TV ad portraying the opposing judicial candidate as a skunk. I wrote about Alabama judicial elections, in  Money, Politics and Judicial Decisions

Unfortunately, Justice Cobb does not highlight the lawmaking role of state supreme court justices, and instead says they’re "supposed to apply the settled law against the facts and evidence of the case before their court." That sounds more like a trial court. The state supreme court has lots of discretion in making the law "settled" in one direction or another so lower courts can then apply it. It's that lawmaking role of supreme courts that justifies a democratic form of judicial selection, rather than what Justice Cobb calls "merit selection."

Monday, March 16, 2015

Progress for Bill to Reduce Secrecy of Kansas Supreme Court Selection Process

The Kansas Senate passed SB197 which would require a public list of which lawyers are eligible to vote for the supreme court nominating commission and which lawyers voted. It would also subject the commission to the Open Meetings Act.

For the Kansas Court of Appeals, SB 197 would require the governor to make public each applicant's name.

Tuesday, March 10, 2015

Wisconsin Supreme Court Campaign Funding

Today's New York Times complains:

"According to the Wisconsin Democracy Campaign, Wisconsin Manufacturers & Commerce spent about $5.6 million to support the election of Justices Annette Ziegler, Michael Gableman, David Prosser and Patience Roggensack. The Wisconsin Club for Growth spent about $1.8 million to help elect those justices, while Citizens for a Strong America spent almost $1 million to elect Mr. Prosser.
This should not be a hard call, but under a pitifully weak rule in Wisconsin’s code of judicial conduct, judges do not have to recuse themselves over independent spending related to their campaigns."

Friday, March 6, 2015

Kansas Senate Confirmation Hearing for Court of Appeals

The Senate Judiciary Committee voted yesterday in favor of Kathryn Gardner's confirmation to the Kansas Court of Appeals. The hearing "was tense as committee chairman Republican Sen. Jeff King aggressively questioned her qualifications." This is in contrast to the predictions of some who worry that if the senate is controlled by members of the governor's party the governor's nominee will not be scrutinized seriously.

Also, some people complain that a senate confirmation process does not reveal who other than the governor's nominee applied for the position. For instance, AP reports Sen.Carolyn McGinn said she "believed Gardner answered questions well, but wished the names of other applicants to the position were made public." But two lawyers (Suzanne Valdez and Dennis Depew) told The Wichita Eagle that they applied.

Monday, March 2, 2015

West Virginia Switches From Partisan to Non-Partisan Judicial Elections

According to Bill Raftery, West Virginia's legislature voted to "move the state to nonpartisan judicial elections at all levels" making it "the fourth state to move from partisan to nonpartisan elections in the last twenty or so years:
  • Arkansas: In 2000 voters approved Amendment 80, a rewrite of the state’s Judiciary Article, which included nonpartisan elections for judges.
  • Mississippi: Most state courts were moved to nonpartisan elections under the 1994 Nonpartisan Judicial Elections Act; Justice of the Peace Court races remain partisan.
  • North Carolina: The state’s courts were moved to nonpartisan ballots in a piecemeal fashion: Superior (1996), District (2001), and finally the Court of Appeals and Supreme Court (2002)."

Saturday, February 28, 2015

Laughs and Insights in Video of John Oliver Mocking Judicial Elections

Very funny mocking of judicial elections with several good points along with the usual progressive flaw of failing to acknowledge that judges, esp. at the high court level, make law rather than merely applying law made by others. John Oliver's only guest is from the progressive Brennan Center.

Monday, February 23, 2015

Senator Pat Roberts Supports Reform of Kansas Supreme Court Selection

According to the Kansas City Star, "Roberts telephoned lawmakers Thursday — making five or six calls — promoting a bill to let the governor appoint judges to the Kansas Supreme Court with the consent of the state Senate. The measure is a priority of Republican Gov. Sam Brownback."

One of the Republicans opposed to Roberts and Brownback is Rep. Susan Concannon of Beloit. She "supports the current system for picking judges. She received a voicemail from Roberts asking her to support Brownback’s efforts to change that, she said, but “it didn’t change my mind.”"

Sunday, February 22, 2015

Bills to Change Kansas Supreme Court Selection

As reported in today's Lawrence Journal World. Three bills: lowering judicial retirement age and either judicial elections or "federal model" senate confirmation.

This article errs in referring to Kansas Bar Association when it should say Kansas Bar (not all members of the bar in the association and vice versa).

Friday, February 13, 2015

New Mexico Judicial Selection

According to the Albuqurque Journal:

House Judiciary Chairman Zachary Cook, R-Ruidoso, has introduced House Joint Resolution 11, which would ask voters to amend the state constitution to eliminate partisan elections of judges. It would not apply to magistrates and justices of the peace, but would apply to state Supreme Court justices, and Court of Appeals, District Court and Metropolitan Court judges.
Currently, judges in those four courts are appointed by the governor from lists of candidates selected by a bipartisan nominating commission chaired by the dean of the University of New Mexico School of Law.
Then, however, they must run in one partisan election, where they often face an opponent who has avoided the vetting of the nominating commission.
After that, judges face only nonpartisan retention elections. Voters in those elections have the benefit of reviews by the Judicial Performance Evaluation Commission.
Cook’s resolution eliminates the partisan election step, which is a major flaw in a merit system.

New Mexico Judge Alan Malott writes:

in the late 1970s, New Mexico elected its judges through ordinary partisan elections. Not surprisingly, the dominant political party produced most of the sitting judges statewide. In 1988, voters approved a constitutional amendment that substituted a hybrid system for purely partisan elections.
This system provides that a judge is initially appointed by the governor, after being screened by a bipartisan nominating commission. But the judge must take on all comers in the next general election cycle, often only a few weeks or months after his or her appointment.
If successful in that partisan contest, the judge is subject to nonpartisan retention elections every six years and remains in office if 57 percent of the voters want to keep them there.

Sunday, February 1, 2015

Lawyers Tend to Tilt Left Liberal Progressive. Judges Don't. Fascinating NY Times piece.

According to a New York Times summary of research by political scientists, lawyers in the US are more liberal than the country as a whole and this is especially true of government lawyers, law professors, public defenders, female lawyers and lawyers who graduated from the Top 14 law schools. In contrast, judges are ideologically close to the country as a whole, with some (state and federal trial court) slightly more liberal and others (state high court and federal circuit court) slightly more conservative.

The New York Times summary: “Politics plays a really significant role in shaping our judicial system,” said Maya Sen, a political scientist at Harvard’s Kennedy School of Government and one of the authors of the study. Since judges tend to be more conservative than lawyers, she said, it stands to reason that the officials who appoint judges and the voters who elect them are taking account of ideology. She said the phenomenon amounted to a politicization of the courts, driven largely by conservatives’ swimming against the political tide of the legal profession.