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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Thursday, May 29, 2014

Republicans and Democrats Compromise on New Jersey Supreme Court

Republican New Jersey Governor Chris Christie decided to re-nominate a Democrat, Chief Justice Stuart Rabner, as part of a deal with the Democratic President of the State Senate, Stephen Sweeney. AP reports Christie will have Sweeney’s support for Republican Judge Lee Solomon’s high court nomination in return.

This seems to me a great example of a senate confirmation system working as it should.  When the executive and legislative branches are held by different parties, the judicial branch gets judges from each party.  More on the NJ Supreme Court selection process is here

Wednesday, May 28, 2014

Comparative Judicial Selection and Judicial Supremacy

Different nations select their judges differently.  I believe the more lawmaking power judges (particularly supreme court justices) have, the more appropriate for them to be selected in a democratic way.  The United States is the "example par excellence" of judicial supremacy over the other branches, according to Judicial Supremacy: Explaining False Starts and Surprising Successes by University of Washington political scientists Victor Menaldo and Nora Williams.  They write:

"The example par excellence of judicial supremacy is the United States system. For
example, in the 2000 case of Bush v Gore the judiciary ruled on the constitutionality of a case
that had an impact on both the executive and legislative branches. The Supreme Court ultimately
awarded the contested presidential election George W. Bush. While Al Gore’s party held the
executive, the losing branch abided by the decision of the judiciary instead of taking what could
have been dramatic action."

Friday, May 23, 2014

Lobbying by Judges and Courts

Article by Western Carolina University Professor Roger Hartley says:


While budgets are tight and the needs of adjudication come first, courts need to build capacity to effectively lobby, like other agencies and “model” courts in other states do. We know that state chief justices, state court administrators, and local presiding judges and court managers lobby. In prior work, I suggest that the selection and tenure of court leaders needs to be rethought in some states. Courts need to pay close attention to the political, advocacy, and management skills when selecting chief justices. Short tenure or rotation of court leaders is also a problem, as courts might lose important political capital and relationships built by effective court leaders over time.

Thursday, May 22, 2014

Tennessee Judicial Retention Elections

Tennessee Lt. Gov. Ron Ramsey campaigns against the retention of three sitting state Supreme Court justices.  Channel 5 says "All it would take is one of those seats to give Republicans a majority on the court, which probably would lead to a Republican Attorney General. Getting an attorney general who thinks more like Republican leaders seems to be the lieutenant governor's main motivation."

Idaho Supreme Court Election

Results of one contested and one uncontested race.

Op-ed says:

Liberal think tank, Center for American Progress, recently graded the ethics laws governing judicial elections in each state. Idaho, and most of the other 39 states with elected judges, got an “F” because state code doesn’t consider cases involving a one-time political backer an automatic reason for recusal, an issue that the American Bar Association has repeatedly blasted. Idaho’s judicial election ethics policy scored the lowest on the organization’s list. That’s especially interesting when you consider a record $33.7 million was spent on judicial elections in the United States in 2012, reports the Washington Post.

Wednesday, May 21, 2014

Judicial Selection and Efforts to "Intimidate" Courts Makes the Washington Post

Are there "disturbing efforts by partisans, politicians and special interests to intimidate our courts" in Oklahoma, Kansas and Missouri?  Yes, argue Ruth McGregor, retired chief justice of the Arizona Supreme Court and Randall Shepard, retired chief justice of the Indiana Supreme Court, in the Washington Post. 

Here is a reply

Tuesday, May 20, 2014

First Female Native American Federal Judge

Diane Humetewa confirmed by the senate

Hawaii Judicial Selection

Good summary by Bill Raftery:

Hawaii: The state’s Governor (or Chief Justice for District Court) is responsible for appointment for a judge’s initial term from a list prepared by the state’s Judicial Nominating Commission. The pick is then subject to Senate confirmation. However, for subsequent terms, the judge need only return to the Judicial Nominating Commission for reappointment; neither the Governor nor the Senate plays a role. (Hawaii Constitution Art. VI, Sec. 3)

Vermont Judicial Selection

Nice summary by Bill Raftery:

Vermont: For judges of the state’s Supreme and Superior Courts, the Governor makes an appointment subject to Senate confirmation. For subsequent terms, however, the Governor plays no role. Instead, judges submit their names to the legislature where they are vetted by a Joint Committee on Judicial Retention. The judge is automatically reconfirmed “unless a majority of the members of the General Assembly voting on the question vote against continuation in office” (emphasis added, Vermont Constitution § 34 and 4 V.S.A. § 607 & 608)

Washington Supreme Court's First Openly Gay Justice

Mary Yu is apparently also the first Asian American and first female Hispanic member of the court.

AP Reports "Yu was appointed by Gov. Jay Inslee earlier this month. She replaces Justice James Johnson, who announced his retirement last month because of health issues....To keep the seat, she will have to run for election in November to serve the rest of Johnson's term, which was set to expire in January 2017."

Monday, May 12, 2014

Why the US Supreme Court is Increasingly Partisan


Two leading scholars, William & Mary Law Professor NealDevins and Ohio State Political Science Professor Lawrence Baum, write that “Starting in 2010 the Supreme Court has divided into two partisan ideological blocs, with all the Court’s Democratic appointees on the liberal side and its Republican appointees on the conservative side.” 

Their article, Split Definitive: How Party PolarizationTurned the Supreme Court into a Partisan Court, uses “original empirical research to establish that this partisan division is unprecedented in the Court’s history.”  They “show that it is linked to growing partisan polarization among political elites,” which has “prompted presidents — for the first time ever — to make ideology the dominant factor in appointing Justices.”

Saturday, May 10, 2014

California Judicial Selection

Loyola LA law professor Jessica Levinson explains California judicial selection and opposes judicial elections.  

She writes in the LA Times:


Most trial court judges first obtain their positions via the appointment process, and incumbent judges generally are not challenged. In the June elections, 150 of 151 incumbent judges in L.A. County are running unopposed. ....
In California, Supreme Court judges and appellate judges are appointed by the governor and must be confirmed by the Commission on Judicial Appointments. This panel is composed of the attorney general, the chief justice and a senior presiding justice of the state Court of Appeal.
Appellate judges must be approved by the voters at the next general election after their appointment, and stand for retention elections at the end of their terms. These are uncontested elections in which the voters decide only whether a judge gets to remain in his or her seat. Appellate judges serve 12-year terms (unless they are serving out the remainder of a vacated term).
Trial court judges serve six-year terms. For these positions, any attorney who meets the constitutional requirements can file to run for an open seat or to contest a sitting judge.
For decades, the Legislature has also required that the governor request an investigation of all potential appointees by the State Bar's Commission on Judicial Nominees Evaluation. The commission's recommendations are nonbinding but persuasive.

Jessica Levinson's views seem to me quite sensible.  She describes the process for appointing California Supreme Court and appellate judges as

 "a strong model for the type of system we should adopt for all state judges. But instead of standing for retention elections in the case of appellate judges, or regular elections in the case of trial court judges, all judgeships could originally be filled by gubernatorial appointment, followed by potential reappointment by the governor, with approval by the Commission on Judicial Appointments."

Tuesday, May 6, 2014

NY Times Covers Outside Campaign Spending in Judicial Races

The paper of record shows a photo of a North Carolina Supreme Court justice carrying campaign signs across the street.  For many of us that's an settling image, which is probably what the NY Times intended, as it's no fan of judicial elections.  For others, I suppose it's a positive image of the powerful being subject to democratic accountability.

The NY Times writes
"Judges on higher courts are elected rather than appointed in 22 states, and in 16 more they must face retention elections at some point after their selection, according to Justice at Stake, an advocacy group in Washington. Corporations and political parties — and trial lawyers and unions — seek ideologically compatible state judges, legal experts say, because their rulings can affect redistricting and laws on such key issues as liability, medical malpractice and workers’ compensation."

More on the NC races' campaign funding here

More on the NC races here

Kansas Gov. Brownback to pick Supreme Court Justice under System he Opposes

To his credit, in my view, Kansas Gov. Sam Brownback wants to move Kansas Supreme Court selection from a particularly extreme version of the Missouri Plan to a democratically-legitimate method of judicial selection, such as the US Constitution's senate confirmation system, which Kansas last year adopted for its Court of Appeals.

The first vacancy on the Kansas Supreme Court of Gov. Brownback's time in office has just arisen so the governor may be required to use the high-court selection system he opposes.  As the very good state-house reporter John Hanna writes:

Moritz's confirmation gives conservative Republican Gov. Sam Brownback his first chance to appoint someone to the seven-member Kansas Supreme Court. However, under the state constitution, a nominating commission will screen applications and name three finalists for Brownback, and legislators will have no role after his appointment.

Thursday, May 1, 2014

Bi-Partisan Progress Toward Judicial Selection Reform in Tennessee

Former Tennessee Gov. Phil Bredesen (D) and former Senator Fred Thompson (R) co-wrote an op-ed supporting the constitutional amendment to adopt a democratic appointment method for the state's appellate judges.  Amendment 2, which will be on the ballot in November, would move the state closer to the method of judicial selection adopted in the US Constitution.  As the President nominates federal judges subject to senate confirmation, similarly this amendment would have the Governor nominate judges subject to legislative confirmation. 

As the op-ed says, Amendment 2 has wide support from a broad array of organizations and officials.  Its chance of passage is encouraging to those of us who have been advocating this model of judicial selection for many years.