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

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Saturday, December 28, 2013

Filibustering or Delaying Confirmation Votes on State Judges

In about a dozen states, the governor's high court nominees face a confirmation vote by the state senate or other popularly elected body.   Should the senate have to hold such a vote promptly or should it be allowed to delay a vote? 

Republican New Jersey Governor Chris Christie is, Bill Raftery (Gavel to Gavel) points out, finding it hard to get his judicial nominees through the Democratically controlled Senate because "the Democratic leadership of the Senate has simply declined to schedule hearings or votes for nominees."  A Republican NJ senator has introduced a resolution would counteract that, providing “a 90-day time limit on hearing nominations to the Supreme Court. If the Senate refuses to vote within 90 days, the nominee would win confirmation automatically.”

As Bill Raftery explains, other states have automatic confirmation deadlines like this (including my state of Kansas which recently instituted a senate confirmation system for its court of appeals) and other states have automatic rejection of nominees if a vote is not held by the deadline.

Wednesday, December 18, 2013

Tennessee Judicial Retention

Since the 1970's, Tennessee judges have stood for retention every eight years.  As the Tennesseean says, "Critics say these yes-or-no votes violate a requirement in the state constitution that judges run for election."  For example, Vanderbilt Law Professor Brian Fitzpatrick writes "The Tennessee constitution states that all judges 'shall be elected by the qualified voters' of the state. Yet, under the Tennessee Plan, the governor appoints all appellate judges, and those judges come before the voters only after a period of time on the bench and only in uncontested yes-no retention referenda."

The Tennessee legislature approved a proposed constitutional amendment to select its supreme court through a federal model system of  gubernatorial appointment subject to legislative confirmation.
In November 2014, the states voters will decide whether to adopt this amendment, which has the support of the Tennessee Bar Association.

In the interim (August 2014) however, Tennessee appellate judges will stand for retention. The state's Judicial Performance Evaluation Commission, which will provide the public with information about these judges, announced that it may take the unprecedented step of recommending against the retention of three intermediate appellate court judges.  Malia Reddick writes: "Since its creation in 1994, the commission has not recommended against the retention of a judge. Similarly, a non-retention recommendation or an indication that a judge does not meet minimum performance standards is relatively rare in the six other states—Alaska, Arizona, Colorado, Missouri, New Mexico, and Utah—that evaluate judges standing for retention. Many judges who receive negative evaluations choose not to seek retention. However, allowing other candidates to oppose a judge who gets an unfavorable assessment makes Tennessee’s process unique."

Monday, December 16, 2013

Tennessee Supreme Court Vacancy Attracts Few Applicants

Tennessee currently has a Missouri Plan system in which a 17-member nominating commission sends finalists names to the governor who then picks the next justice on the state supreme court. 

Only five people applied for the currently-vacant position and the Governor’s Commission on Judicial Appointments identified three finalists. Gov. Bill Haslam will select the next justice.

The Tennessee legislature approved a proposed constitutional amendment to select its supreme court through a federal model system of  gubernatorial appointment subject to legislative confirmation.
In November 2014, the states voters will decide whether to adopt this amendment, which has the support of the Tennessee Bar Association.

Sunday, December 15, 2013

Montana Supreme Court Selection

Montana Supreme Court Selection

Montana Supreme Court justices are elected in contestable races (two or more candidates from which voters choose).  However, Montana (like many states with judicial elections) uses an appointive system to fill mid-term vacancies on the court.  That interim appointment process is about to occur because the U.S. Senate recently confirmed Montana Supreme Court Justice Brian Morris to a federal judgeship. 

The interim appointment process to the Montana Supreme Court works as follows (summarized by The Missoulian): a Judicial Nomination Commission interviews applicants and recommends three to five finalists to the governor. The governor must pick from that list and then the new justice is subject to confirmation by the Montana Senate.  The Nominating Commission consists of four non-lawyers appointed by the governor, a judge, and two lawyers appointed by the Montana Supreme Court.

In sum, Montana's interim appointment process is an amalgam of the Missouri Plan (nominating commission with special power for the bar) and senate confirmation (following the democratic appointment model of the US Constitution). 

Thursday, December 12, 2013

Push to Change Minnesota Judicial Selection

Minnesota judicial elections have given us important and interesting developments from the US Supreme Court case of Republican Party v. White to the election of Hall of Fame football player Alan Page to the Minnesota Supreme Court.

A push to move away from contestable elections to a Missouri Plan system is being led by the Coalition for Impartial Justice.  The proposed constitutional amendment is here.  Justice at Stake comments here.

Oklahoma Speaker of the House Weighs in on Method of Selecting Oklahoma Supreme Court

Efforts to change Oklahoma's Supreme Court selection process from the Missouri Plan to something more democratic have been picking up lately.

Carrie Severino explains that "calls for selection reform intensified in June" when the Oklahoma Supreme Court struck down a tort-reform bill.  Here, she criticizes Oklahoma’s speaker of the house, T. W. Shannon, for his opposition to judicial elections.

"Instead of direct election of justices — the practice in Oklahoma from statehood until a bribery scandal in the 1960s — Shannon said he favors revamping the selection process and perhaps limiting terms or instituting a mandatory retirement age for justices," according to the Tulsa World.  Of course, the important details are in how one might "revamp" the selection process.  "Currently, judicial vacancies are filled by the governor from a list of nominees from the Judicial Nominating Commission. Six of the commission's 15 members are lawyers elected by the bar association. Of the remaining nine members, six are appointed by the governor, one by the speaker of the House, one by the president pro tem of the Senate and one by the other members of the commission."  My beef with this system is the power it gives the bar.

Wednesday, December 11, 2013

Nomination to the Connecticut Supreme Court: The "Federal Model" in Action

The "Federal Model" in Action

Outside the northeast, many people (even many lawyers) are not familiar with states selecting their judges in the same basic way federal judges are selected: nomination by the executive and then confirmation by the legislature.  At the federal level, that is done by the president and the US Senate.  In Connecticut, it is done by the governor and both houses of the state legislature.  I believe this is the best (or least bad) method of judicial selection.  (Maybe that's because I grew up in the northeast and lived in Connecticut, as well as New York, where I am licensed to practice law.)

Connecticut Governor Malloy recently nominated Appellate Judge Richard A. Robinson as his choice for a vacancy on the Connecticut Supreme Court, "saying the nomination is the first of about a dozen judicial appointments he expects to make before the General Assembly convenes its 2014 session in February."

According to the CT Mirror, "The first-term Democratic governor has made judicial diversity a goal, and his previous appointments to the state’s highest court include Carmen Espinosa, the first Latina on the court, and Andrew McDonald, its first openly gay jurist. His other two nominees, Lubbie Harper Jr. and Robinson, were only the third and fourth black men named to the court."

Gov. Malloy was quoted as saying about his belief in diversity.  “That’s not simply talking about race or other backgrounds,"  "I’m looking for justices who have good common sense and understand real-life situations. And, quite frankly, if they pull for the underdog once in a while, that wouldn’t bother me."

Thursday, December 5, 2013

Call for South Carolina to Changes its Method of Judicial Selection

South Carolina judicial selection.

A South Carolina news organization, the Hilton Head Island Packet, points out that South Carolina is one of only two states (Virginia is the other) in which the legislature appoints all judges from the state supreme court on down.   "And the state's Judicial Merit Selection Commission, whose 10 members nominate judges, is composed of six lawmakers.  As if that isn't legislator overkill, three of the state's top lawmakers appoint the 10 members on the commission. The result: By the time a state judge ascends the bench in South Carolina, they're beholden to lawmakers in ways that do not serve the public and work directly against the notion of judicial independence."  In contrast to South Carolina, judges in many states (like federal judges) are appointed in a process that requires the consent of both the other two branches: legislative and executive.  Separation of powers. 

The Island Packet argues "South Carolina could consider a merit-based system, similar to Florida's For appellate judge appointments, the governor chooses from a list recommended by the Judicial Nominating Commission (whose members are not selected by the legislature).  When the justices' terms expire, their names appear on the general election ballot for a merit retention vote. If a majority of voters do not support retaining a judge, the governor appoints a replacement who has been screened by the commission."  I point out the problems with this system here and here.

The Island Packet continues: "While some states employ a direct popular election, this too is problematic, as lawyers who appear before them are apt to be large campaign donors. Turning judges into politicians is not the fix.  Another possibility: Model the state's system after the federal one. The governor would nominate, and legislators would advise and consent. At the very least, no judge would be beholden to just one governmental branch."  I agree.

Read more here: http://www.islandpacket.com/2013/12/02/2825881/sc-should-check-how-judges-are.html#storylink=cpy

Read more here: http://www.islandpacket.com/2013/12/02/2825881/sc-should-check-how-judges-are.html#storylink=cpy

Tuesday, December 3, 2013

Monday, December 2, 2013

Texas Judicial Elections Criticized by Newspaper

TheAustin American-Statesman editorializes: “The partisan election of judges is one of the more negative facets of state government, and for decades there have been attempts to change Texas’ judicial election system. We long have supported efforts to take party politics out of judicial elections and to reduce the effect of campaign money on the state’s courts.”
It goes on “Texas is one of only a handful of states that hold partisan judicial elections. Several potential reforms have been explored …..  A perennial and favored proposal is to appoint judges based on merit and then to require them to go before voters a few years later in a nonpartisan, yes-or-no retention election.”  Of course, the devil is in the detail of who gets to “appoint judges based on merit” when reasonable people disagree about which potential judges are more meritorious.   

Senate Confirmation Without the Filibuster

Bill Otis at  The Crime and Consequences blog sponsored by the Criminal Justice Legal Foundation quips about the recent end of the filibuster for federal judicial nominees "DoYou Like Stephen Reinhardt? I sure hope you do, because you're about to getlots more judges just like him."  (A reference to the famously liberal and activist judge on the Ninth Circuit.) 

Otis says "Viewed in isolation, having judicial nominations approved by a simple majority vote strikes me as a good idea.  Democracy is, after all, about majority rule."

Wednesday, November 27, 2013

Originalism, Balanced Legal Realism and Judicial Selection: A Case Study

Originalism, Balanced Legal Realism and Judicial Selection: A Case Study

The "balanced realist" view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

New Missouri Constitutional Amendments Would Elect State Supreme Court Judges

Selecting judges through a nominating commission that gives special powers to the bar is the core of  "Missouri Plan" systems used in several states and called "merit selection" by those who favor it.  The first state to enact such a system, Missouri, has in recent years seen many proposals for change.  Just this month, the Missouri secretary of state’s office has approved for circulation two initiative-petition ballot proposals that would have partisan elections for the state’s Supreme Court.
Either measure would be a proposed constitutional amendment if it gets signatures from at least 157,788 Missouri voters.

 More on the Missouri Plan here in an article in the Missouri Law Review.

Defenders of Missouri's current judicial selection system are here

Advocates of change are discussed here with a video of James Harris here

Friday, November 22, 2013

Senate Democrats Trigger 'Nuclear' Option to End Filibuster of Judicial Nominees

As the Washington Post explains, "Democrats used a rare parliamentary move to change the rules so that federal judicial nominees and executive-office appointments can advance to confirmation votes by a simple majority of senators, rather than the 60-vote supermajority that has been the standard for nearly four decades."

Video here

Tennessee Bar Association Supports Proposed Constitutional Amendment

The Tennessee legislature approved a proposed constitutional amendment to select its supreme court through a federal model system of  gubernatorial appointment subject to legislative confirmation. 
In November 2014, the states voters will decide whether to adopt this amendment. It recently gained the support of the Tennessee Bar Association.   Below the judicial selection amendment is discussed by Tennessee Lt. Governor Ron Ramsey

Tuesday, November 19, 2013

Judicial Elections in Alabama Criticized by the New York Times

A very strongly worded editorial,  entitled "Death Meted Out by Politicians in Robes."  the Times' editors write "In nearly all of the 32 states that permit capital punishment, a jury makes the final decision on whether a defendant will live or die. Not so in Alabama, where elected judges may override a jury verdict of life in prison and unilaterally impose a death sentence."  "Justice Sotomayor rightly identified the reason Alabama’s judges impose more death sentences per capita than any other state. The judges, she wrote, 'who are elected in partisan proceedings, appear to have succumbed to electoral pressures.'”

Of course, a candidate running for office in Alabama may benefit from the opposition of the New York Times.  I recall that when I first moved from New York City to Alabama, I saw a bumper sticker that read "If you love New York, take I-95 North."

My own writing on judicial elections in Alabama is here.

Friday, November 15, 2013

Oklahoma Supreme Court Judicial Selection Reform

An earlier post noted that Oklahoma is considering changes to its judicial selection system.  This upcoming event in Tulsa looks very good because it features a member of the Oklahoma Judicial Nominating Commission and two bright and interesting academic experts, Professors Brian Fitzpatrick (Vanderbilt Law) and Chris Bonneau (U. Pittsburgh).

Another reason to expect this will be a good event: it promises discussion of all three of the common judicial selection methods in the country: "Oklahoma Supreme Court Judicial Selection Reform: Elections vs. Appointment vs. Nominating Committee."  These tend to be much better discussions than discussions considering only two of the three.

Good of the Federalist Society, particularly its Tulsa Lawyers Chapter, to host it.

Thursday, November 14, 2013

Monday, November 11, 2013

Caperton and Money in Judicial Races

After teaching the Caperton case, Stetson Law Professor Ciara Torres-Spelliscy asks "whether electing judges with private funds makes for a respectable and functional justice system."  One of her answers "more than any other elective office, judicial elections would benefit from public financing."

Sunday, November 3, 2013

Oklahoma Legislators Considering Switch From Missouri Plan to Federal Model or Elections

Oklahoma Considering Switch From Missouri Plan to Federal Model or Elections

"advocating for the current selection process to be changed to a federal system, in which the governor would nominate a candidate to be approved by the senate, or judicial elections"

State Supreme Court Selection Around the United States: The Missouri Plan in National Perspective

The Missouri Plan in National Perspective

We should distinguish the process that initially selects a judge from the process that determines whether to retain that judge on the court. Judicial selection and judicial retention raise different issues. In this article, I primarily focus on selection. I summarize the fifty states’ methods of supreme court selection and place them on a continuum from the most populist to the most elitist. Doing so reveals that the Missouri Plan is the most elitist (and least democratic) of the three common methods of selecting judges in the United States. After highlighting this troubling characteristic of the Missouri Plan’s process of selecting judges, I turn briefly to the retention of judges and caution against the dangers posed by subjecting sitting judges to elections, including the retention elections of the Missouri Plan. I conclude with support for a system that, in initially selecting judges, avoids the undemocratic elitism of the Missouri Plan and, in retaining judges, avoids the dangers (populist and otherwise) of judicial elections.

Tuesday, October 29, 2013

Florida Judicial Selection Contrasted with Missouri, Kansas, etc.

This article, Florida Gov. Rick Scott often rejects Florida Bar's lists of lawyers to nominate judges, shows how the bar's preferences can clash with a governor's.  The Florida bar's power to pick members of the Judicial Nominating Commission is checked by the Florida governor.  In contrast, the bar in "hard Missouri Plan" states (like Missouri and Kansas) has unchecked power to appoint some members of the nominating commission.  In Kansas, the bar picks a majority.

Report: Wisconsin Justices Tend to Side With Donors

Report: Wisconsin Justices Tend to Side With Donors

"justices tend to rule in favor of clients whose attorneys contribute to the justices’ election campaigns"
From the Wisconsin Center for Investigative Journalism

Related: My study of Alabama Supreme Court rulings' correlation with campaign contribution.

Saturday, October 12, 2013

The Three Common Methods of Judicial Selection in the United States

This short piece briefly summarizes the three common methods of judicial selection in the United States and advocates the senate confirmation system found in the United States Constitution.

Saturday, October 5, 2013

Money, Politics and Judicial Decisions

Money, Politics and Judicial Decisions

This article presents the results of a study of 106 decisions by the Supreme Court of Alabama from January 18, 1995 through July 9, 1999. The decisions are in the area of arbitration law and reveal the remarkably close correlation between a justice's votes on arbitration cases and his or her primary source or campaign funds. Justices whose election campaigns are funded by plaintiffs' lawyers oppose arbitration, whereas justices whose campaigns are funded by business favor arbitration. The correlation holds not just with regard to ideologically-charged doctrines, like unconscionability, but also with seemingly bland questions of contract formation, interpretation and waiver.

Monday, September 30, 2013

The Bar’s Extraordinarily Powerful Role in Selecting the Kansas Supreme Court


In supreme court selection, the bar has more power in Kansas than in any other state. This extraordinary bar power gives Kansas the most elitist and least democratic supreme court selection system in the country. While members of the Kansas bar make several arguments in defense of the extraordinary powers they exercise under this system, these arguments rest on a one-sided view of the role of a judge.

Thursday, September 12, 2013

Selection to the Kansas Supreme Court

 Kansas Journal of Law & Public Policy, Vol. 17, p. 368, 2008


Kansas is the only state in the union that gives the members of its bar majority control over the selection of state supreme court justices. The bar consequently may have more control over the judiciary in Kansas than in any other state. This process for selecting justices to the Kansas Supreme Court is described by the organized bar as a "merit," rather than political, process. Other observers, however, emphasize that the process has a political side as well. This paper surveys debate about possible reforms to the Kansas Supreme Court selection process. These reforms would reduce the amount of control exercised by the bar and establish a more public system of checks and balances.