Florida Supreme Court Selection Litigation

Three Florida Supreme Court justices are required to leave the court in January because of reaching a mandatory retirement age. All three are, the Orlando Sentinel writes, part of what is "widely considered a left-leaning majority on the seven-member court." That has led to the possibility that their replacements could spur a rightward shift of the court, debate about whether Republican Gov. Rick Scott, who will also leave office in January, should have the authority to appoint the new justices or whether that power should go to his successor. 

The Judicial Nominating Commission will have 60 days — expiring shortly after the election — to nominate a list of three to six people for each court vacancy. Unless a lawsuit stops this process. "The League of Women Voters and Common Cause of Florida have asked the state supreme court to stop the Judicial Nominating Commission from nominating candidates to fill the vacancies," The Tampa Bay Times reports. "Their case was previously struck down because Scott had not yet picked new justices, but last week, he directed the commission to begin seeking nominees."

Impeachment of Entire West Virginia Supreme Court

The West Virginia House voted to impeach four West Virginia Supreme Court Justices. The only remaining justice resigned prior to the introduction of the articles of impeachment.

The articles of impeachment refer to the "waste [of] state funds with little or no concern for the costs to be borne by the tax payer for unnecessary and lavish spending in the renovation and remodeling of his personal office after questions arose about expensive, state funded office renovations."

NBC reports "Republican Gov. Jim Justice will be allowed to appoint new justices to replace any who are impeached — with no requirement that they be from the same party as the incumbent. Democrats have accused Republicans of attempting to wrest the court away from voters, who elected the current justices in nonpartisan elections."

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.

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."

Minnesota Bill to Change from Elected Judges to Nominating Commission

Minnesota Judicial Selection

Law and Culture

The Star Tribune explains that "Currently, most judges do come into office by gubernatorial appointment, but there are rare elections for open seats without an appointee. Once in office, judges stand for re-election and can be challenged by opponents. Most run unopposed."  This has always struck me as part of the "Minnesota nice" culture.  Although officially Minnesota's high court has elections, it seems common for judges to retire mid-term which gives the governor an opportunity to appoint a judge to fill the unexpired term.  Then that incumbent runs un-opposed in the next election.  Contested elections seem to be more common at the supreme court level but the the incumbent usually wins handily and the closest in 2012 was a 12 point victory for incumbent Justice David Stras.  

Mandatory Retirement

Some mid-term judicial retirements seem due to the mandatory retirement age statute, which requires judges to leave the bench at the end of the month they turn 70, as opposed to at the end of the term. See Minnesota Code sections 490.125 and 490.121(21)(d)

A bill to move from this system to a Missouri Plan, nominating commission system advanced out of a senate subcommittee. 

For more on Minnesota judicial selection, see here