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

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Friday, January 31, 2014

School Funding and the Washington State Supreme Court

I've previously noted that the state supreme court's school funding decision frequently comes up in Kansas debates over judicial selection.  The same is apparently true in Washington State.  The Olympia Report says:

Just as importantly, Baumgartner believes it’s time to send a message to the court, which ruled two years ago in the McCleary case that the Legislature wasn’t spending enough money on K-12 education and ordered it to spend more. While many lawmakers might have agreed with that conclusion, it arguably violates the principle of separation of powers for the court to dictate policy to the Legislature.
In fact, the court’s most conservative justice, James Johnson, wrote a scathing opinion earlier this month in which he called his colleagues’ actions unconstitutional.
The court also drew the ire of many last year when it overturned a ballot initiative approved by 64 percent of the voters that required a two-thirds majority in the Legislature to raise taxes.
“Unlike the U.S. Supreme Court, where the justices are appointed to life terms, our justices are elected,” Baumgartner said. “And they’re as political as any of us is.”

Tuesday, January 28, 2014

Legislature Electing Chief Justice of South Carolina

South Carolina is one of only two states in which the legislature selects the supreme court.  Initial selection of judges this way is one thing, but judicial retention for another term is another.  In SC a sitting chief justice is seeking another term by campaigning within the legislature.  Her opponent: another sitting justice on the court.  More on South Carolina judicial selection here.

Friday, January 24, 2014

Bill to Subject Kansas Judges to Recall Elections

Bill Raftery reports on the recent House Judiciary bill to make Kansas judges subject to recall elections.  Surrounding issues discussed by Peter Hardin here.

Thursday, January 23, 2014

Kansas Supreme Court Selection Process Criticized and Defended

Anti-abortion group Kansans for Life announced that one of its top legislative priorities is to switch Kansas Supreme Court selection from its current nominating commission system to a senate confirmation system.  The Topeka Capital Journal reports "Kansans for Life would like a federal-style system, in which the governor makes appointments that require confirmation by the Senate." 

The Cap Journal quotes Kansas Supreme Court Chief Justice Lawton Nuss saying  "I still prefer our present method, which does not allow for special-interest groups to have any impact on the selection of people who eventually become judges".

 TV and other video coverage of Kansas Supreme Court selection is here

 My extensive writing on the topic is here

Former Iowa Supreme Court Justice Decries Judicial Politics

Marsha Ternus writes "In 2010, Iowa voters removed two colleagues and me from the court in a retention (yes-or-no) election. Well-funded out-of-state groups and other critics fueled the ouster drive, decrying a unanimous 2009 court ruling. That decision held an Iowa statute denying civil marriage — and the benefits flowing from that status — to same-sex couples violated their right to equal protection under the Iowa Constitution."  She opposes partisan judicial elections and supports what she calls "merit selection" saying:  "I continue to believe that judicial merit selection systems like Iowa's, incorporating a nonpartisan screening commission and gubernatorial appointment, offer the best defense against politicized courts."  Of course the devil is in the details of who selects members of the commission, that is, who picks the pickers. 

I address Iowa Supreme Court selection and the same-sex marriage case here in a video of a Federalist Society panel in Des Moines.

Do Judges Follow the Law?

"Do Judges Follow the Law? An Empirical Test of Congressional Control Over Judicial Behavior" includes an empirical finding a broad topic ("Do Judges Follow the Law?") that is central to debates over judicial selection.

The paper, by two University of Chicago law professors, Todd Henderson & William Hubbard has the following abstract “Do judges follow the law? In a naïve model of judging, Congress writes statutes, which courts know about and then slavishly apply. Although interpretation differences could explain deviation between congressional will and the law as applied, in this model there should be no divergence where the law is unambiguous. Section 21D(c)(1) of the Securities Exchange Act is such a clear law: it requires courts to certify attorneys complied with Rule 11(b) of the Federal Rules of Civil Procedure, which forbids frivolous or unsupported claims, in every case arising under the Act. In this paper, we provide data that rejects the naïve model: courts make the required findings in less than 14 percent of cases in which such findings were required by law. This suggests judges either do not know of the law or, if they do, fail to follow it. We also show that required Rule 11(b) findings about sanctions are made overwhelmingly in cases where sanctions would be least likely – that is, in orders approving settlements – and such findings are extremely rare in cases where sanctions would other be more likely – that is, where motions to dismiss are granted. To explain this seeming paradox, we offer an account that highlights crucial ways in which the incentives of the judge and of the attorneys may interact in complex cases.”

Saturday, January 18, 2014

Kansas Judicial Selection in Wall Street Journal

Wall Street Journal op-ed by Stephen Moore, entitled "Kansas Democracy Lesson", says upcoming school funding decision "is also a test of the state Supreme Court. Four of the seven Justices were appointed by former Governor Kathleen Sebelius, of ObamaCare fame, and nominees are chosen by a commission dominated by the State Bar Association. The commission selects three potential nominees, and the Governor must choose one of the three.  This gives the lawyers' guild effective control of the judiciary, creating a conflict of interest and pushing the judiciary to the left. Kansas Republicans want to change this selection process and let the Governor nominate state Supreme Court judges subject to state Senate confirmation, following the federal model. If the Justices impose an undemocratic tax increase, the GOP should move swiftly to reform judicial selection."

The commission has a majority of members selected by the state bar, not the state bar association.  (To be licensed to practice law in the state, a lawyer does not have to be a member of the association.)  This distinction is lost on many.  For instance, I wrote an op-ed years ago for the Wichita Eagle that said "bar" but the editors changed it to "bar association".

More substantively, I'm glad to see more national attention for the problem (in my view) of the bar having disproportionate power over judicial selection by getting a special role in selecting members of the nomination commission.  This has been my theme for many years and the problem is more extreme in Kansas than in any other state.  I think it's a problem whether it pushes the judiciary Left or Right or neither. But politically, I think Stephen Moore is right that legislators get more interested in judicial selection when judges tell legislators to spend more money on public schools.

Thursday, January 16, 2014

National Association of Women Judges on Judicial Selection

The National Association of Women Judges' involvement on judicial selection is here in its "Informed Voters Project."  Its project states are


Most of these are Missouri Plan (a/k/a "merit") states in which proponents of other methods of judicial selection have been active in recent years. 

Tuesday, January 14, 2014

Delaware Supreme Court Selection: Chancellor Leo Strine

Most of the country's publicly traded companies choose to incorporate in, and thus be governed by the law of, a tiny state--Delaware.  Is it a coincidence that the final word on this state's law is a supreme court chosen by the "federal model" of executive nomination and then confirmation by the senate?  I argue this is a better system than judicial elections or a bar-favoring nominating commission.

For the current vacancy, Delaware’s governor nominated Leo Strine, chief judge of the state’s prestigious business court, the Delaware Court of Chancery.  Delaware Online writes "Strine has built a national reputation for having a brilliant legal mind. His legal analyses of corporate law matters have been widely praised.  If confirmed, as expected, by the Delaware Senate later this month, Strine could bring his spontaneity to a court some have characterized as 'formal,' observers say."

Sunday, January 12, 2014

Top 2 Issues for Kansas Legislature Relate to Kansas Supreme Court

According to the Lawrence Journal World, the Top 2 issues in the upcoming Kansas legislative session are the Kansas Supreme Court's upcoming school funding decision and the method by which the court is selected.

I favor moving the Kansas Supreme Court (as recently occurred for the Kansas Court of Appeals)  from a Missouri Plan system with a nominating commission that gives disproportionate power to the bar to a senate confirmation system modeled on the US Constitution.

Saturday, January 11, 2014

Judicial Independence

The political science literature on judicial selection includes lots of data and various perspectives not sufficiently voiced among lawyers and in the general public.  A good example is this article by Scott E. Graves, National Center for State Courts, Robert M. Howard, Georgia State University, and Pamela C. Corley, Vanderbilt University.

It seems to provide further empirical support for the proposition that judicial independence is determined primarily by the length of a judge's term.  This proposition goes back at least as far the Federalist Papers in which Hamilton (quoted  this article) says "Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to [the courts'] necessary independence."

Friday, January 10, 2014

Kansas Bill to Require Public Release of Judicial Applicants

A bill was filed to require public release of names of those applying for position on the Kansas Court of Appeals, the Lawrence Journal World reports.   Governor "Brownback declined to make the applicants' names public, saying it would hurt the chances of getting qualified individuals to apply." 

I don't know why there have to be formal applications at all.  Does anyone ask the president who applied for a US Supreme Court vacancy or to be secretary of state?

Thursday, January 9, 2014

Connection Between Chris Christie NJ Bridge Traffic and Selection to NJ Supreme Court?

Rachel Maddow suggests that New Jersey Governor Chris Christie's efforts to get senate confirmation of his judicial nominees are the real reason his staff caused traffic problems by closing the bridge.

Federal Judicial Nominations

Year-end analysis by Russell Wheeler of Brookings:  "Judiciary Committee chair Patrick Leahy rigorously honors a committee tradition of not processing nominees who are opposed by either home-state senator [blue slip].  It is thus pointless for the administration to send the Senate a nominee without those senators’ assurances they will not block the nomination." 

Perhaps unsurprisingly and showing the separation of powers with today's divided government: "Of the 29 nominee-less vacancies, 26 were in states with a Republican senator."  

And the pattern back when party control was reversed: "At this point in the Bush administration, nominee-less vacancies were concentrated in states with Democratic senators."

I think the Framers are probably looking down at this and smiling with the sense that it's generally better to have some unfilled judgeships than allow one side of a closely-divided nation to quickly pull the judiciary sharply Left or Right.

Monday, January 6, 2014

Ending Filibuster of Judicial Nominees a Top 3 Lobbying Victory

Ending the filibuster of federal judicial nominees was among the Top 3 biggest lobbying victories of 2013, according to the Capitol Hill newspaper The Hill.  Credit or blame goes to "Fix the Senate Now, a liberal-leaning coalition — including the Alliance for Justice, Common Cause, the Communications Workers of America and the Sierra Club." 

US Supreme Court Selection Process is Functioning Just Fine

The US Supreme Court selection process is functioning just fine, argues a new article by University of Georgia Law Professor Lori Ringhand and University of North Texas Professor Paul Collins.  The selection process "provides democratic validation of previously contested constitutional choices made by the Supreme Court; it provides a public forum in which electorally accountable actors argue about what should and should not be considered part of our constitutional consensus; and it provides an opportunity for dialogue between the Court, the Senate, and the public.  Each of these features of the current system work to ensure that the long-term constitutional preferences of the people are, over time, embraced by the Court as part of our core constitutional understanding."  Well said.

Supreme Court Confirmation Hearings and Constitutional Change, written by Collins and Ringhand is available here.


Sunday, January 5, 2014

Bill to Change Vermont Judicial Selection

Vermont judges are selected in three steps:
1. A nominating commission (the Judicial Nominating Board) takes applicants and sends a list of finalists to the governor.
2. The governor picks one.
3. The state senate votes whether to confirm the nominee.

I call this senate confirmation system and like the fact that the judicial branch is selected by the other two. 

Fine to have a nominating commission (the Vermont Judicial Nominating Board) but the important question is who selects it, that is, who picks the pickers?  The Vermont Judicial Nominating Board has 11 members: 2 nonlawyers appointed by governor; house and senate each select 3 members, 2 nonlawyers and 1 lawyer; and 3 lawyers elected by members of bar. 

Overall, this is a democratically-legitimate system except for the 3 lawyers selected by the bar. 

The bill would add more names from which the governor may choose.  As Bill Raftery explains: "Under current law the Judicial Nominating Board can submit as few or as many names as it likes to the governor, but the governor must submit from that list alone. SB 305 would effectively allow the governor to force the Board to produce more names. If the Governor opted not to select a name from the first list created by the Board, a second list would be created from a list of people 'who did not previously apply for that particular vacancy.' The names from the second list plus the names from the first list would then be resubmitted to the governor."

Wednesday, January 1, 2014

Oklahoma "Reign of Judicial Terror"

A former Oklahoma state senator, Kenneth Corn, a Democrat published an op-ed defending the state's version of the Missouri Plan from proposals to switch the state to contestable judicial elections or a democratic appointment system.  Under these proposals, he writes, "misguided politicians would give us a system that would unleash activist judges to launch a reign of judicial terror on citizens." 

As the Tulsa World summarizes, "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 objection to this system is the power it gives the bar.

An attorney member of the commission, John Tucker, defends it here.

New Year's Report by Chief Justice Roberts Highlights Lack of Funding forJudiciary

At the start of the new year, the Supreme Court releases an annual report.   In today's report, as Chief Justice John Roberts highlights lack of funding for the federal judiciary.  "At the top of my list is a year-end report that must once again dwell on the need to provide adequate funding for the Judiciary."  Here the report is summarized by National Public Radio.

While funding for the judiciary is an issue that does not necessarily relate to judicial selection, the two topics often seem connected in practice.  My own recent publication on judicial under-funding and a private sector alternative is here.   It is called "Is Adjudication a Public Good? 'Overcrowded Courts' and the Private Sector Alternative of Arbitration".