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

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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.

Tuesday, July 7, 2015

Ted Cruz Wants Retention Elections for US Supreme Court

Senator Ted Cruz (R-Texas) proposes subjecting US Supreme Court justices to periodic retention elections, that is, referenda in which citizens choose yes or no whether to the keep the justice or create a vacancy, which would be filled in the usual manner.

This idea is sensibly criticized by George Will,

Friday, June 26, 2015

Nebraska Supreme Court Nominating Commission

Each of the seven seats on the Nebraska Supreme Court has its own judicial nominating commission. These commissions consist of nine members: a Supreme Court judge, four members selected by the bar, and four members appointed by the governor. According to Omaha.com one of four nominees for the Nebraska Supreme Court served as an alternate on a nominating commission and may be barred from the appointment to the court. "A little-known provision of the state constitution," says that "finalists for judgeships may not have served on a nominating commission for at least two years prior to their nomination to the bench."

Thursday, June 4, 2015

Judge Rated Low by Bar Wins GOP Primary: Surprising Pennsylvania Supreme Court Election?

In the Pennsylvania Supreme Court Republican primary a candidate, Judge Anne Covey,  rated “not recommended” by the Pennsylvania Bar Association defeated Justice Correale Stevens who the bar rated “highly recommended,” Malia Reddick points out. Previously, Covey called the judicial-evaluation process of the Pennsylvania Bar Association as "unethical, unprofessional, and less than forthright," according to The Philadelphia Inquirer.

Three seats on the court are open in the general elections this November. The GOP candidates (who each won the May primary) are Anne Covey, Michael George, and Judith Olson

The Philadelphia Inquirer discusses campaign contributions.

Saturday, May 23, 2015

Pennsylvania Supreme Court Elections After Scandals

Three seats on the Pennsylvania Supreme Court are up for election this year and the candidates were recently selected in Democratic and Republican primaries. Melissa Daniels writes "Two of the seats opened when justices stepped down amid scandals — Joan Orie Melvin of Marshall on the heels of corruption charges, and Seamus McCaffery of Philadelphia because of inappropriate emails unearthed on state servers." The third opening is a result of the mandatory retirement of former justice Ron Castile when he turned 70.

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.

Monday, January 26, 2015

Kansas Supreme Court Selection Reform and School Finance

This article in the Wichita Eagle by Bryan Lowry is one of the better news stories on the Kansas Supreme Court selection process because it describes that process accurately "The current system relies on a nine-member commission to choose nominees, with four of those members appointed by the governor and the other five selected by a vote of the state’s practice attorneys" rather than (as many lower quality articles say) "a non-partisan commission of attorneys and non-attorneys."

Bryan Lowry also rightly refrains from using the propaganda phrase "merit selection" to describe the current system.

Sunday, January 18, 2015

Judicial Campaign Contribution Buys Outcome of a Case

An Arkansas trial judge pled guilty to reducing a negligence verdict from $5.2 million to $1 million in exchange for contributions to his election campaign for appellate court.

Saturday, January 17, 2015

Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. the Florida Bar

Williams-Yulee v. The Florida Bar, will be argued before the Supreme Court this week: January 20, 2015.

My new article, Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. the Florida Bar, in Vanderbilt Law Review En Banc, Vol. 68, 2015, is part of a Roundtable including several thoughtful articles. My abstract:

 At the level of constitutional law, Williams-Yulee is a First Amendment case about judicial campaign fundraising. The First Amendment issues raised by judicial campaigns and money in politics are vital, and they are not the only issues implicated by Williams-Yulee. Williams-Yulee also implicates broader questions about how judicial election campaigns should be funded and ultimately whether to have judicial elections at all. I bring to Williams-Yulee a longstanding interest in a wide range of legal and policy issues surrounding judicial selection, including issues surrounding the extent and implications of correlations between judicial campaign contributions and judges’ rulings. Williams-Yulee seems an opportune time to reconsider my and others’ longstanding concerns about judicial elections.

Thursday, January 15, 2015

Kansas Gov. Brownback to Pursue Judicial Selection Reform

In this State of the State address this evening, Brownback "promised to take another run at a constitutional amendment that would give him and future governors the authority to pick the justices on the state Supreme Court, with the consent of the Senate", according to the Wichita Eagle which, unfortunately, uses the propagandistic phrase "merit system" to describe the current Kansas Supreme Court selection process. The Eagle describes the current system as involving "a commission of lawyers and lay people" but does not point out the controversial and undemocratic aspect of this system: Kansas is the only state that allows its bar to select a majority of the nominating commission.

As the Eagle says, "The Legislature already changed the selection process for the state Court of Appeals, but changing it for the Supreme Court would require a constitutional amendment."

Monday, January 12, 2015

Renewed Push to Change Kansas Supreme Court Selection

Changing the way Supreme Court justices are selected will be the highest priority for the majority of the Kansas Legislature this year, according to Chapman Rackaway, a political science professor at Fort Hays State University.

"Obviously the governor wants selection of all judges to be consolidated under the governor’s office, and so that’s going to be a front-burner issue for this legislature," Rackaway said. "They’ll get it done. They have plenty of loyalty to the governor. They share his goal on this. So I think that would be a pretty easy thing for them to get done."

I don't know that I agree with this.  First, a constitutional amendment to change Kansas Supreme Court selection requires two-thirds of both houses of the legislature, which is part of why constitutional amendments are pretty rare.

Second, I wouldn't characterize this issue as this governor wanting more power over judicial selection.  Those of us advocating reform have been advocating it through several governors of both parties and, in my case, advocating it nationally regardless of the state's political leanings.  Moving from the Kansas's current bar-empowering version of the Missouri Plan to a senate confirmation is a matter of principle for the long-term, not a way to empower a particular governor at a particular time and place.

Friday, January 9, 2015

SCOTUS to Address Judicial Election Campaign Funding

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.  It is scheduled for argument Jan. 20, 2015.

"The case brings three important questions to the fore, Ware said. The narrow question is whether prohibiting a judicial candidate from personally soliciting campaign funds is constitutional. This question is intertwined with broader questions about how to fund judicial election campaigns and, at the broadest level, whether to have judicial elections at all." 

Kansas Judicial Retention Elections

As I noted in October, The Kansas Republican Party's chairman and GOP Gov. Sam Brownback encouraged voters to remove two of the court's seven justices in the Nov. 4 election.  The two, Justices Lee Johnson and Eric Rosen, both appointed by former Democratic Gov. Kathleen Sebelius, kept their jobs but won less than 53 percent of the vote.

Previously, no Kansas justice had received a "yes" vote of less than 62 percent and that was in 2010, when the anti-abortion group Kansans for Life waged a "fire Beier" campaign against Justice Carol Beier.

As Brad Cooper of the KC Star writes, "Some scholars attribute the increasing profile of retention elections to the way states like Kansas pick judges. The say those systems, which employ a screening process for candidates, are influenced too much by lawyers with liberal inclinations."  
 
What is this screening process and what role does it give lawyers? 

 As Cooper writes"Supreme Court justices in Kansas are appointed by the governor, who chooses from a panel of three candidates recommended by a screening panel made up of five lawyers and four nonlawyers."  

What is crucial, however, is that those five lawyers are selected in a shockingly undemocratic way.  They are selected in elections open to only about 10,000 people in the state: the members of the Kansas Bar. No other state allows its bar to select a majority of its nominating commission.  Kansas Supreme Court selection is undemocratic and extreme.

I'm not sure about Cooper's statement that "About half the states choose Supreme Court judges using screening committees similar to Kansas’ system." Perhaps this means only that about the half states have a nominating commission, but the keys are:

1. Is if there is a nominating commission, then who selects its members.  Who picks the pickers? 

2. Is the nominating commission able to ensure that one of its nominees joins the court or is the governor's choice among those nominees subject to senate confirmation which, if denied, may require the commission to nominate someone else.




Thursday, January 8, 2015

Wisconsin Judicial Retirement Age and Supreme Court Ideology

In 1977, Wisconsin voters amended the state constitution directing the Legislature to set a mandatory judicial retirement age no earlier than age 70. The Legislature has not in fact done that.  But now at requirement was never acted on.  But now State Rep. Dean Knudson, R-Hudson, said he plans to introduce a bill in the upcoming legislative session setting the mandatory retirement age at 75.

“Thirty-three states have mandatory retirements between the ages of 70 and 75,” Knudson said. “Vermont is the highest with an age of 90.”

If passed by the Republican-run Legislature next year, all judges — except reserve or temporary judges — who are over 75 years old would have to retire immediately or within a matter of months.

According to the Wisconsin State Journal, "Such legislation would give Republican Gov. Scott Walker numerous opportunities to appoint judges to his liking to fill unexpired terms of judges and justices hitting the mandatory retirement age," including three state Supreme Court justices: Chief Justice Shirley Abrahamson, 81, Justice Pat Roggensack, 74, and Justice N. Patrick Crooks, 76.

The Wisconsin State Journal describes Abrahamson as "part of the three-member liberal minority on the court."