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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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.

    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.