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

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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.

Friday, September 5, 2014

Judicial Nominating Commissions

Some of the most thoughtful advocates of judicial nominating commissions are affiliated with IAALS, the Institute for the Advancement of the American Legal System, at the University of Denver.  Their report, by Malia Reddick & Rebecca Love Kourlis is on this page which says:

"A commission-based gubernatorial appointment process can offer important benefits to the state judiciary that these other methods may not. First and foremost, those who aspire to be judges need not have political connections, a campaign war chest, or the support of special interests to apply. Rather, the process can create an environment in which the selection decision focuses on candidates’ experience, character, and qualifications, motivating highly qualified candidates to apply. This, in turn, can inspire trust and confidence in the selection process and in the judiciary as a whole among members of the public and the other two branches of government. But the extent to which commission-based appointment achieves these ideals is dependent wholly upon how the commission is chosen and how it functions."

While I agree with this to some extent, I think a lot turns on how one defines "political connections." For instance, if the bar selects some members of the commission and a candidate's connections within the bar help that candidate win the support of the commission, do we call that use of "political connections"?  A question for advocates of nominating commissions is whether a candidate using connections within the bar is somehow more legitimate or less "political" than using connections with democratically-elected officials.

Separately, I note that the paragraph just quoted speaks of judging in technocratic terms "experience, character, and qualifications."  Omitted from this is any mention of the lawmaking role of judges, particularly state supreme court justices.  Another question for advocates of nominating commissions is whether they see high court judges as important lawmakers.

Monday, September 1, 2014

New Kansas Supreme Court Justice

Gov.Sam Brownback appointed Caleb Stegall.  He earned his law degree from the University of Kansas School of Law in 1999 and according to the KC Star ranked third in a class of 187.  He served as the elected county attorney in Jefferson County from 2009 to 2011.   He then was Gov. Brownback's chief counsel before being appointed a judge on the Kansas Court of Appeals.

According to KCUR-FM, Kansas City
Michael Smith an Associate Professor of Political Science at Emporia State University says Stegall is an interesting choice.
“He’s a conservative intellectual,” says Smith.

For more on Caleb Stegall, see here

Read more here: http://www.kansas.com/news/politics-government/article1323768.html#storylink=cpy

Read more here: http://www.kansas.com/news/politics-government/article1323768.html#storylink=cpy

Monday, August 25, 2014

Michigan Supreme Court Nominees

As Gavel Grab writes, "Both political parties have nominated their candidates for three seats on the Michigan Supreme Court, kicking off the general election season." See more

Thursday, August 21, 2014

Tennessee Supreme Court Justice Supports Democratic Appointment of Justices

Tennessee Supreme Court Justice Jeff Bivins supports an amendment to the Tennessee Constitution under which that the governor would appoint Tennessee appellate court judges, subject to legislative confirmation, and followed by retention elections. The question is one of four proposed amendments before voters statewide on the Nov. 4 general election ballot.

Friday, August 15, 2014

Should Retired Judges be Able to Practice Law?

Retired judges practicing law raises serious concerns, which is one reason to support judicial retention systems (like life tenure or a long term of years) that keep a judge on the bench until retirement age. Bills to prevent retired judges from practicing law were recently introduced in Puerto Rico.

Bill Raftery explains:

two bills contending with the issue of retired judges that would effectively ban the former jurists from practicing law. PC 1270 as introduced would have prohibited a retired Chief Justice or President Judge of the Supreme Court of Puerto Rico from representing any person before a court, administrative or quasi-judicial agency. Prohibits person from providing such courts/agencies legal services. As amended the bill would have allowed a retired justice of the Supreme Court of Puerto Rico to restart their law practice, but prohibited them from appearing in court, administrative proceedings, alternative dispute forums, or generally representing people or corporations in any proceeding. Further, the amended bill provided that the person’s judicial pension is forfeited where such representations take place. It was approved by the full House 10/10/13 and is pending in the Senate Judicial, Security, and Veterans Committee. A similar bill (PC 1311) identical to the original PC 1270 remains in the House Labor and Public Service Retirement Systems Committee.

Wednesday, August 13, 2014

Arkansas Judicial Selection

Discussed here by Bill Raftery.  He provides good information but I wish he'd drop the advocacy phrase "merit selection" for commission based (or "Missouri Plan") selection processes.

Friday, August 1, 2014

Kansas Supreme Court Applicants Interview Schedules

The interviews (Aug. 4 and 5) at the Kansas Judicial Center in Topeka are open to the public but cameras and recording devices are prohibited.  The applicants for the Kansas Supreme Court position are listed here.

Tuesday, July 29, 2014

Kansas Supreme Court Selection Issue Stirred by Court's Death Penalty Ruling

Kansas Senate Majority Leader Terry Bruce said the states' supreme court selection process will “absolutely” be an issue when legislators reconvene in January because of The Kansas Supreme Court’s decision last week to overturn two brothers’ death sentences for a notorious robbery, rape and killing rampage. The Republican said the rulings weren’t surprising — the court hasn’t upheld a death sentence in two decades — and many members of the GOP-dominated Legislature believe the justices have shown an “activist” streak.

Kansas City Lawyer’s Pro-Democrat Blog Posts Could be an Issue in Judicial Confirmation

According to the ABA Journal:

Kansas City lawyer Stephen Bough last posted commentary on a political blog in 2009, but he now has some new readers.

The Senate Judiciary Committee is considering Bough’s nomination to be a judge in the Western District of Missouri, and his blog is getting a closer look, according to Legal Times (sub. req.). A personal injury lawyer, Bough posted comments favoring Democrats on the blog when he led a group called Committee for County Progress.

One post expressed hope that voters would oust U.S. Sen. Roy Blunt, R-Mo., who remains in the Senate. Another statement, made in the comments section, said, "You and the 3 other folks who read this blog will agree I shouldn't be a judge.”

Friday, July 25, 2014

California Gov. Jerry Brown's Supreme Court Nominees: Diverse and Progressive

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.

As Dan Walters writes in the Sacramento Bee:

This week, Brown nominated Stanford law professor Mariano-Florentino CuĂ©llar, whose record indicates he will be a judicial liberal, to succeed Marvin Baxter, the court’s most obviously conservative member.

Having already named another law professor, Goodwin Liu, to the court, and with another vacancy still to be filled, Brown’s appointees will soon hold three of the seven seats. Because his appointees are in their early 40s, they’ll be making new law for many years.

The remaining four Republican appointees, including Chief Justice Tani Cantil-Sakauye, are relatively moderate. So the Brown appointees will tilt the court to the left with the likelihood that Brown will have one or two more appointments in his second term.

Dan Walters'  piece shows a strong sense of history and Gov. Brown's emphasis on ethnic diversity.