Custom and Senate Confirmation of New Jersey Supreme Court Nominees Results in Democratic Governor Appointing a Republican

New Jersey's Democratic Governor Phil Murphy nominated a Republican, Douglas Fasciale, to the state's supreme court. Republican Senator Holly Schepisi says this nomination is the result of Schepsi's deal with Murphy, according Katie Sobko, writing for northjersey.com.

Sobko adds that an unwritten rule of senatorial courtesy "allows senators to block judicial nominees from their home county," which Sen. Schepisi did in blocking Gov. Murphy's nomination of Rachel Wainer Apter for a different seat on the NJ Supreme Court. The deal apparently unblocked Wainer Apter in exchange for nominating Republican Fasciale. 

"These nominations — Fasciale, a Republican, and Wainer Apter, a Democrat — maintain the 70-year tradition of having a political power balance on the state’s highest court," Sobko notes.

Both nominees were confirmed by the state senate.

Reforming SCOTUS For Ideological Balance

As decisions by — and appointments to — the Supreme Court have become increasingly divisive, several reformers suggest replacing justices' life tenure with non-renewable terms of 18 years, such that one term ends every two years. That way, as Nevada Law Professor David Orentlicher explains, "less would be at stake with each nomination, justices could not time their retirements for partisan reasons, and appointments would be divided more evenly between Democratic and Republican presidents."

Orentlicher says "There is a sound argument to be made that Supreme Court reform is constitutionally required. In particular, principles of due process and the framers’ original intent provide good reason to think that neither a conservative nor liberal Court majority should be able to impose its views on the country."

While I doubt such reform is constitutionally required, Orentlicher notes interesting European examples:

• "In Germany, for example, nominees to the Constitutional Court must receive a two-thirds vote of approval and therefore must appeal to legislators on both sides of the partisan aisle."
• "In many European nations, high court decisions are made by consensus, or at least a supermajority vote, so justices on both sides of the ideological spectrum have to support the courts’ opinions. The U.S. Supreme Court itself observed a norm of consensual decisionmaking for most of its history. Until 1941, the justices typically spoke unanimously. Only about 8 percent of cases included a dissenting opinion. Now, one or more justices dissent in about 60 percent of rulings."

Impeach Entire Supreme Court of West Virginia?

A West Virginia House panel moved last week to impeach the state’s entire Supreme Court. “There’s a culture of entitlement and cavalier indifference and disregard for the expenditure of taxpayer money,” said House Judiciary Chairman John Shott, R-Mercer, whose committee issued articles of impeachment after 8 days of testimony.

"Elections to the state Supreme Court became formally nonpartisan in 2015. But each justice remains tied to a given party, and the current makeup of the court is 3-2 in the Democrats’ favor" reports the Washington Post. "Democratic lawmakers said the court’s political composition and the timing of the legislative [impeachment] proceedings, which have come just before the August 14 deadline to organize a special election, call into question the intentions of Gov. Jim Justice, who switched parties and became a Republican after taking office last year. Once next week’s deadline passes, he would enjoy the power to appoint any new justices, who would serve until the next election in two years."

Ohio Supreme Court Appointment Makes Court All Republican

Ohio Gov. John Kasich named Judge Mary DeGenaro to complete the 11 months left in the term of  Justice William O’Neill, a Democrat, who is running for governor.

According to the Toledo Blade, this will mean each member of the Ohio Supreme Court is a Republican.

Suit Challenges Delaware Court's Political Balance Requirement

Delaware's Constitution, Art. 4, sect. 3, says "three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party." This political balance requirement, a Delaware lawyer's suit argues, is unconstitutional under the freedom of political association guaranteed in the U.S. Constitution.