Oklahoma Senate Votes to Replace Supreme Court Nominating Commission with Senate Confirmation

 The Oklahoma Senate recently voted to replace the state’s current bar-privileging method of supreme court selection with a more democratic appointment process including senate confirmation of the governor’s nominee.

Oklahoma Supreme Court selection currently centers on judicial nominating commission (“JNC”) with six of its fifteen members selected by the state’s bar. The governor must appoint one of the three finalists chosen by the JNC. Oklahoma’s JNC has been criticized for its secrecy.

 To reform this system, the Oklahoma Senate recently passed  Joint Resolution 43 which, if approved by Oklahoma’s House and voters, would amend the Oklahoma Constitution to abolish the current JNC and instead follow the United States Constitution in subjecting the governor’s supreme court nominee to senate confirmation.

The Oklahoma Senate has previously sought similar change.

Covid19 Pandemic Delays Governor in Filling Vacancies on Florida Supreme Court

Florida law gives Governor Ron DeSantis 60 days from Jan. 23 to fill vacancies on the Florida Supreme Court, but DeSantis said his power under his Mar. 9 pandemic emergency declaration allows him to extend the deadline.

Two of the court’s seven seats became vacant when two of DeSantis’ earlier appointments, Justices Barbara Lagoa and Robert Luck, were confirmed to the federal 11th Circuit Court of Appeals. Florida’s Constitution establishes a judicial nominating commission (JNC) charged with providing the governor “not fewer than three persons nor more than six persons” as nominees to fill vacancies, and Art. V, Section 11(c) states: “The governor shall make the appointment within sixty days after the nominations have been certified to the governor.” Those 60 days started Jan. 23 when the JNC submitted its nominations to Gov. DeSantis.

At a press briefing on Mar. 19, Gov. DeSantis was asked by a reporter: “You have until Monday to make two Florida Supreme Court decisions. Have you been able to interview all the nominees with everything that’s been going on?” The governor responded that he has interviewed the nominees but not read their judicial opinions in depth; therefore, he said “I will most likely delay under the state of emergency that deadline.” JNC chair Daniel Nordby agrees with Gov. DeSantis that the “slate of nominees isn’t affected by the expiration of the 60 days. I continue to have confidence in Governor DeSantis as he decides how best to fill these two vacancies from this talented list of nominees.”

However, not all court watchers approve of this delay. Adam Richardson, a West Palm Beach lawyer, asserts on Slate, that Gov. DeSantis “has been violating the state constitution since March 23. On that date, he refused to appoint two justices to fill vacancies on the Supreme Court of Florida by the constitutionally mandated deadline.” Richardson then refers to the case of the previous Florida governor, Charlie Crist, to miss the constitutional deadline for a judicial appointment. In 2009 Crist was sued by the retiring appellate judge whose seat on the Fifth District Court of Appeals he sought to fill. Gov. Crist rejected the JNC’s original six nominees, claiming that the panel overlooked qualified black candidates, and he asked the commission for a new slate. The JNC ignored this request, returning the same six names, and the governor subsequently refused to appoint a successor to Judge Robert Pleus. Judge Pleus’s suit against Gov. Crist came before the Florida Supreme Court, which held that “the Governor lacks authority under the constitution to seek a new list of nominees from the JNC and has a mandatory duty to fill the vacancy created by Petitioner's retirement with an appointment from the list certified to him” Pleus v. Crist, 14 So.3d 941, 946 (Fla. 2009). However, the court did not declare any repercussions if a governor passes the deadline.

The apparent power of the governor to exceed the 60-day limit would distinguish Florida from some other states with judicial nominating commissions. For instance, the Kansas Constitution says “In event of the failure of the governor to make the appointment within sixty days from the time the names of the nominees are submitted to him, the chief justice of the supreme court shall make the appointment from such nominees.” See Art. 3, § 5(b). Unclear whether an executive order declaring an emergency might forestall the chief justice. In a similar vein, the Missouri Constitution says “If the governor fails to appoint any of the nominees within sixty days after the list of nominees is submitted, the nonpartisan judicial commission making the nomination shall appoint one of the nominees to fill the vacancy.” See Art. 5, §25(a).

Thanks to Arrian Ebrahimi for research assistance.

Iowa Supreme Court Selection

Iowa is one of a few states that privilege lawyers in judicial selection by allowing the bar to select members of the judicial nominating commission that narrows down the pool of applicants to three from which the governor must pick one. 

Until 2019, the bar and governor each selected 8 commissioners with the 17th a sitting state Supreme Court justice. The 2019 law takes away the sitting justice's place and replaces with another commissioner selected by the governor.

Lawsuits challenging this change have thus far not succeeded.

More on Iowa judicial selection

New Book on Judicial "Merit Selection" Nominating Commissions

"Judicial Merit Selection: Institutional Design and Performance for State Courts" is a new book by Greg Goelzhauser, a Political Science Professor at Utah State University.

The publisher, Temple University Press writes: "In Judicial Merit Selection, Greg Goelzhauser amasses a wealth of data to examine merit selection’s institutional performance from an internal perspective. While his previous book, Choosing State Supreme Court Justices, compares outcomes across selection mechanisms, here he delves into what makes merit selection unique—its use of nominating commissions to winnow applicants prior to gubernatorial appointment."

Senate Confirmation of State Judicial Nominees: Significant Impact?

In 2013, Kansas changed its Court of Appeals selection process to include state senate confirmation of the governor's nominee--a reform that may have just had a significant impact.

On March 15, 2019, Kansas Governor Laura Kelly, a Democrat, nominated District Judge Jeffry Jack to the Court of Appeals. However, a few days later, Gov. Kelly withdrew her nomination after tweets surfaced that showed Judge Jack "voicing his disdain for conservative leaders and Republican lawmakers in sometimes coarse, profane language" according to the Kansas City Star, which reports they "sometimes include F-bombs."

The Star also notes "In a statement regarding her appointment of the judge, Kelly said Jack was chosen from a list of finalists recommended by a committee of lawyers and non-lawyers, and that the choice was based on merit."

In nominating Judge Jack, Governor Kelly said: “Because I value transparency and the judicial merit-selection process, one of my first acts after my election was to create a committee of knowledgeable lawyers and non-lawyers to recommend finalists for the Court of Appeals vacancy...That committee ensured that our next Court of Appeals judge would be selected through an open process based on merit, and I thank the members of nominating committee for their work.”

Under the headline "After Judge Jack fiasco, legislators call for more oversight of court nominations", the Kansas City Star notes that: "One day after Gov. Laura Kelly withdrew his nomination to the state Court of Appeals, Republican lawmakers are pushing to remove Judge Jeffry Jack from his seat on the 11th District Court, and to mandate Senate confirmation of Supreme Court judges."

The Kansas Supreme Court is now chosen through a nominating commission, most of which is selected by the bar. The commission gives three names to the governor, who chooses the final candidate, without senate confirmation.

Governor Supports Removing Bar Power From Iowa's Judicial Selection

Iowa is one of a few states that privilege lawyers in judicial selection by allowing the bar to select members of the judicial nominating commission. This undemocratic violation of the one-person-one-vote principle is criticized by me in this video focused on Iowa, and in this national article (linked).

Fortunately, a bill to remove this bar favoritism has been introduced in Iowa. The bill would allow democratically elected officials to select members of the judicial nominating commission. Gov. Kim Reynolds supports the bill.

Thoughtful commentary by Vanderbilt Law Professor Brian Fitzpatrick

More on Iowa judicial selection

Progressive Arguments on Judicial Selection

The progressive Brennan Center has published Choosing State Judges: A Plan for Reform by
Alicia Bannon. It:

recommend[s] that states do away with state supreme court elections completely. Instead, justices should be appointed through a publicly accountable process conducted by an independent nominating commission. Furthermore, to genuinely preserve judicial independence, all justices should serve a single, lengthy term. No matter the mechanism by which they reach the bench, be it an election or an appointment by the governor or legislature, justices should be freed from wondering if their rulings will affect their job security. 

 I support this "single, lengthy term" view of judicial retention, but think much is lost in the Brennan Center's vague "A judge’s job is to apply the law fairly and protect our rights." This phrase can mislead people into believing that judges merely apply law made by someone else (constitution, statute) rather than make law, which judges have been doing for centuries in making the common law and in interpreting vague provisions of constitutions and statutes. The problem with advocating "an independent nominating commission" is hiding from the public the inevitable lawmaking function of judges (particularly state supreme court justices) and thus allowing powerful insiders (typically the bar) disproportionate power. Several states even go so far as allowing the bar to pick some members of the supposedly "independent" nominating commission. 

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."

Trial and Appellate Judges Should be Selected by Different Methods

Tailored Judicial Selection is Maine Law Professor Dmitry Bam's new article in the University of Arkansas at Little Rock Law Review.

The abstract says in part:

"approximately forty states using a uniform selection method for all levels of their state courts. For example, in fourteen states all judges are appointed by the governor from a list submitted by a judicial nominating commission. Another fourteen use nonpartisan elections for all their judges. Eight more use partisan elections for all their judges. All in all, once a state chooses a selection and retention method for its judges, it adopts that approach for the whole judiciary.

But it does not have to be this way. In this article, I will suggest that we should at least consider tailoring the judicial selection method to different levels of the judiciary. After all, judges are not a monolithic, homogenous group, and the work of a trial judge differs significantly from the work of an appellate judge. I will show that different selection methods may be appropriate for trial judges than for appellate judges. What I call “tailored judicial selection” can help address some of the concerns raised by the proponents and the opponents of various methods of judicial selection."

I agree, and thank Prof. Bam for quoting Stephen J. Ware, Originalism, Balanced Legal Realism and Judicial Selection: A Case Study, Kan. J.L. & Pub. Pol'y, Spring 2013, at 165, 181: "The political/lawmaking side of judging looms larger, the higher the court. In other words, the extent to which (inevitable) judicial lawmaking allows judges to inject their political views into law rises, the higher the court. Trial judges play less of a lawmaking role than appellate judges, especially supreme court justices, simply because court systems are hierarchical and trial courts are at the bottom. The legal rulings of trial courts can be reversed, de novo, by appellate courts. In contrast, appellate courts are often the final word, as a practical matter, on issues of law."

More Evidence That Bar-Empowering Nominating Commissions Tilt Courts Left

Missouri is one of about 9 states that privileges its bar in selection of state supreme court justices. Missouri's appellate nominating commissions has some seats selected by the state's lawyers. This bar-privileging system yields a judiciary with a disproportionate number of Democrats and few Republicans. State Rep. Nick Schroer, a lawyer, explains of the last "30 nominees stretching from 1995 to today — the Appellate Judicial Commission has nominated only three Republicans."

Stanford University Professor Adam Bonica, et al. on lawyers' liberal tilt.

Vanderbilt Law Professor Brian Fitzpatrick has analyzed the impact lawyers' liberalism has on judicial selection.

More on lawyers' progressive tilt.

Bills Advance to Reform Missouri Plan of Judicial Selection

A Missouri senate committee has advanced bills to reform the Missouri Plan of judicial selection.

If approved by voters, SJR 11 would allow the governor to appoint the new judge from a list of names of all qualified applicants, submitted by a nonpartisan judicial commission, rather than from a list of only three names. This would reduce the power of the commission. This would advance democratic legitimacy because the commission has some members selected by the bar.

Bills to Change Hawaii Judicial Retention by Replacing Commission with Senate

Hawaii's judges are appointed for an initial term by the Governor (or, for district judges, the Chief Justice) 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).

The very first bill introduced in the Hawaii House this year calls for a constitutional amendment removing reappointment decisions from the commission and instead giving the Senate the final word in the reappointment of individual judges and justices, according to Ian Lind. 

The members of the Judicial Nominating Commission are listed here along with who appointed them.

Art. VI, Sect. 3 of the Hawaii Constitution reads:

The governor, with the consent of the senate, shall fill a vacancy in the office of the chief justice, supreme court, intermediate appellate court and circuit courts, by appointing a person from a list of not less than four, and not more than six, nominees for the vacancy, presented to the governor by the judicial selection commission.

If the governor fails to make any appointment within thirty days of presentation, or within ten days of the senate's rejection of any previous appointment, the appointment shall be made by the judicial selection commission from the list with the consent of the senate. If the senate fails to reject any appointment within thirty days thereof, it shall be deemed to have given its consent to such appointment. If the senate shall reject any appointment, the governor shall make another appointment from the list within ten days thereof. The same appointment and consent procedure shall be followed until a valid appointment has been made, or failing this, the commission shall make the appointment from the list, without senate consent.


The chief justice, with the consent of the senate, shall fill a vacancy in the district courts by appointing a person from a list of not less than six nominees for the vacancy presented by the judicial selection commission. If the chief justice fails to make the appointment within thirty days of presentation, or within ten days of the senate's rejection of any previous appointment, the appointment shall be made by the judicial selection commission from the list with the consent of the senate. The senate shall hold a public hearing and vote on each appointment within thirty days of any appointment. If the senate fails to do so, the nomination shall be returned to the commission and the commission shall make the appointment from the list without senate consent. The chief justice shall appoint per diem district court judges as provided by law.

Judicial Selection in Guatemala

Stanford University Fellow for Human Rights, Mirte Postema's Study of Guatemala's Judicial Selection Processes "Reforms Alone are Insufficient to Strengthen the Judiciary."

The Abstract:    
Hundreds of millions of dollars have been spent on judicial reform in Central America. This has led to the creation of new infrastructure and laws, but the structural problems in the judiciary remain. The author analyses this problem by means of the examination of Guatemala's 2014 judicial selection processes which, despite the existence of a fairly sophisticated legal framework and transparency requirements, were extensively manipulated by third actors. Subsequently, the author provides recommendations about how to improve this situation and move forward with the strengthening of the judiciary.

Postema writes about judicial nominating commissions somewhat similar to those often used in the United States:

"In an attempt to depoliticize the judicial selection processes, Guatemala selects its Attorney General, Supreme Court and Court of Appeals judges by means of Comisiones de Postulación [Nominating Commissions] (CdP). The Constitutional Court is exempted from this process, but other authorities are selected by mechanisms similar to CdPs, to which the principles of the LCP also apply. CdPs are ad hoc bodies that are mandated by the Constitution to establish a shortlist of candidates from
which Congress—or, in case of the selection of the Attorney General, the President—makes the
appointments. The deans of the country’s law schools form the core of CdPs. When judges are selected,other members of the legal community—representatives of the bar association and of judges—also take part in CdPs.

Kansas Increases Openness of the State's Judicial Selection

A bill that will make the Kansas Supreme Court Nominating Commission subject to the state’s open records and meetings laws has been signed by Gov. Sam Brownback. This new law should fix one of the Kansas Supreme Court selection system's major problems, hiding the votes of the commission, as hopefully the commission and courts will interpret this law to require the commission's votes be public records.

The other major problem with the Kansas Supreme Court selection system, the undemocratic selection of the commission, remains. Several members of the commission are selected in elections open only to members of the bar. However, secrecy in these elections has also been reduced by the recent bill, as it requires the clerk of the Kansas Supreme Court to submit a list of the lawyers eligible to vote to the Kansas Secretary of State’s Office ahead of these elections.

Finally, the bill requires the governor to disclose applicants for the Court of Appeals, the Wichita Eagle explains.

d more here: http://www.kansas.com/news/politics-government/article78389772.html#storylink=cpy

Senate Confirmation of Judges Advances in Oklahoma

The Oklahoma Senate approved a bill that would bring senate confirmation of judicial nominees to the state and reduce the Judicial Nominating Commission to issuing an advisory rating of “qualified” or “not qualified.”

As the Daily Ardmoreite explains, "the JNC consists of six attorneys selected by the Oklahoma Bar Association, six commissioners appointed by the governor, one commissioner appointed by the Senate President Pro Tem, and one commissioner appointed by the House Speaker. The remaining commissioner is selected by the other members of the JNC."

Transparency in Judicial Selection

The Kansas Legislature passed a bill to increase the transparency of the state's judicial selection. It would subject the bar-empowering Supreme Court Nominating Commission to the Open Records Act and Open Meetings Act, and require the governor to disclose applicants for the Court of Appeals.

Brian Lowry of the Wichita Eagle writes "The nominating commission for the Supreme Court is made up of four members appointed by the governor and five elected by the state’s practicing attorneys. The bill will require the clerk of the Kansas Supreme Court to submit a list of the attorneys to the secretary of state’s office prior to an election of attorney members, a provision that had been opposed by the Kansas Bar Association and Democratic lawmakers."

Read more here: http://www.kansas.com/news/politics-government/article75057252.html#storylink=cpy

British Judicial Selection

“Searching for Constitutional Meaning in InstitutionalDesign: The Debate Over Judicial Appointments in the United Kingdom,” by Northwestern University Law Professor Erin F. Delaney. 

The abstract:    

The United Kingdom is undergoing a period of dramatic constitutional change. A spate of reforms ushered in by the Blair government at the turn of the twenty-first century challenged conventional notions of British governance and constitutional structure. In the shadow of these changes, one new and bedeviling institutional task is to reconcile an independent judicial branch, growing in power, with a system of parliamentary sovereignty. This article will analyze the debate over judicial appointments in order to shed light on the position of the modern British judiciary, and the new U.K. Supreme Court in particular, within the British constitutional system. Questions of institutional design expose deep divisions over the perceived extent of judicial power, the relationship of the judiciary to Parliament, and the constitutional justifications for diversity on the bench. Although a weak consensus was achieved in the Crime & Courts Act 2013, stability in the appointments regime is likely temporary. The contested nature of the modern British constitutional system will ensure ongoing debate.

In Britain, Delaney writes, "safeguards protecting judges’ impartiality were developed in parallel with the doctrine of parliamentary sovereignty, so that an 'independent judiciary' was understood as
comprising independent individual judges, rather than seen as a separate and independent
branch. (Indeed, the highest judicial body was a committee of the upper house of
parliament, and the Lord Chancellor, empowered to appoint judges, was at once head of the
judiciary, a member of the Prime Minister’s Cabinet, and the presiding officer of the House
of Lords.)"

Delaney writes “the Constitutional Reform Act (2005) [CRA] was heralded as a ‘milestone’ in the separation of powers and a ‘major step forward’ in judicial independence. It included three major changes. First, it created the UK Supreme Court, which, in its own building on Parliament Square, provided a physical demonstration of the new separation between the legislative and judicial branches. To ensure stability, the Lords of Appeal in Ordinary—the Law Lords—were retitled as the initial twelve Supreme Court Justices. Second, the Act dramatically altered the role of the Lord Chancellor, removing his legislative and judicial duties. And, finally, the CRA included various new appointments mechanisms designed to cabin the Executive’s discretion, including the creation of the Judicial Appointments Commission for England and Wales and a selection commission for Supreme Court appointments.”

More on the Commission