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."