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

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Monday, December 26, 2016

Arkansas Bar Ass'n Proposes Big Change to Arkansas Supreme Court Selection

The Arkansas Supreme Court is currently selected in non-partisan elections. "The Arkansas Bar Association is holding a series of public forums across the state to discuss and
receive comments on a proposed Arkansas Constitutional Amendment on an appointment process
for selection of Supreme Court Justices," according to a press release by the Bar Association.

The proposal recommends “a nine-member judicial nominating commission...be formed to accept applications, interview candidates and nominate three for each vacancy on the Supreme Court.”, according to the Brennan Center, which goes on to say: the governor “would then appoint one of those candidates to the court” for a single, non-renewable, 14-year term.

FWIW, I like the single, non-renewable, 14-year term as that helps judicial independence without going to the extreme of allowing a justice to remain on the state's high court for 20 or 30 years.

Friday, December 2, 2016

Ohio Supreme Court Elections Leave Republicans in Control

Republicans won all three elections to the Ohio Supreme Court this year. "Republicans retain control of the state’s high court by a 6-1 margin", according to the Toledo Blade.

Monday, November 21, 2016

Montana Supreme Court Election

As is often true of contested judicial elections around the US, the Montana Supreme Court race between Dirk Sandefur and Kristen Juras involved a funding battle between businesses and the trial lawyers who sue them. According to the Montana Standard,

More than $1.1 million has been raised by Juras, Sandefur and organizations supporting their campaigns, according to state campaign finance records. The Republican State Leadership Committee’s Judicial Fairness Initiative, a DC-based political group funded primarily by large corporations, has bought ads to attack Sandefur, while various political action committees of the Montana Trial Lawyers Association have lined up to oppose Juras in what could be another record-setting fundraising year.

Sandefur won the election.

Tuesday, November 1, 2016

Wednesday, September 21, 2016

2016 Montana Supreme Court Candidates Debate

Listen to the debate between Kristen Juras and Dirk Sandefur on Montana Public Radio. Whoever is elected will serve eight years as one of seven justices in Montana’s highest court.

Retired Montana Supreme Court Justice James Nelson explains that this is just one of three elections to the court this year, but in the other two Chief Justice Mike McGrath and Justice Jim Shay are running unopposed.

Sunday, September 18, 2016

Judicial Retention in Hawaii

The progressive Brennan Center praises Hawaii's system of judicial retention, which uses a commission to determine whether sitting judges should be retained for additional terms. Of course, the important question is who appoints the commission. While the Brennan Center is not troubled that some members of the commission are appointed by the Hawaii State Bar Association, I think it undemocratic to weight the votes of some citizens (lawyers) more than the votes of other citizens in determining who holds powerful positions influencing the direction of the law.

Friday, September 9, 2016

NY Times Depicts Kansas Battle as Judicial Independence vs. Politicized Courts

Predictably-progressive oversimplifications by the Times include "In the Kansas system, judges are appointed by the governor," The Times fails to mention the bar's extraordinarily large role in selecting Kansas Supreme Court justices and the politicization that produces.

Sunday, September 4, 2016

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 PostulaciĆ³n [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.

Thursday, July 28, 2016

Partisan Judging Data by Joanna Shepherd and Michael Kang

The progressive American Constitution Society released a study finding judges tend to rule for members of their own party in deciding election disputes, and these effects are exacerbated by campaign donations. The report by Emory Law professors Joanna Shepherd and Michael Kang finds that “[j]udicial partisanship in election cases increases, and elected judges become more likely to favor their own party, as party campaign-finance contributions increase.” The authors also highlight that “[t]his influence of campaign money largely disappears for lame-duck judges without re-election to worry about.”

Another progressive organization, the Brennan Center, emphasizes two quotes from the study:

(1) “[i]f judges are influenced, consciously or not, by party loyalty in election cases, they are likely tempted to do so in other types of cases as well.”

(2) “reformers have advocated, among other things, public financing of state judicial campaigns; term limits for state judges; and various merit selection, judicial evaluation, and disciplinary systems,” and this study “bolster[s] the case for judicial selection reform.”

This study is valuable in providing data on the extent to which judges' politics matter to their rulings. However, progressives often err in thinking something like "elected judges are especially political so we should reduce the influence of judicial campaign money or, even better, replace judicial elections with merit selection." This is deeply wrong in several ways.

To some extent, judges should be political. Judges makes law. Lawmaking is part of their jobs, and has been for centuries, especially for high court judges. Lawmakers should, in a democratic society, be selected democratically. "Merit selection" is usually a euphemism for a method of judicial selection that violates the basic principle of democratic equality--the rule of one-person, one vote--by making a lawyer's vote worth more than another citizen's vote. "Merit selection" is a propaganda term for the nominating commission often known more-neutrally as the Missouri Plan. These commission systems often compound their violation of democratic equality by operating in secret so the commission's key vote is hidden from the public and accountability. Finally, Missouri Plan systems usually retain the problems of judicial elections because they usually subject sitting judges to retention elections.

Rather than the anti-democratic, secrecy, and campaign-contribution problems of the Missouri Plan, states should replace judicial elections with a judicial selection appointment process modeled on that found in the US Constitution. In about a dozen states governors nominate judges and they are confirmed by the senate or other popularly-elected body. This judicial appointment process selects judges with a form of indirect democracy, better for the rule of law than the direct democracy of electing judges.

As to judicial retention, the US Constitution gives federal judges job security which strengthens judicial independence compared to requiring judges to win elections to keep their jobs. States don't have to go as far in the direction of judicial independence as life tenure, as a long non-renewable term (say 14 or 20 years) would probably work about as well.  

Monday, July 18, 2016

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

Wednesday, May 4, 2016

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."

Monday, May 2, 2016

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

Saturday, April 9, 2016

KS, AR, OK, PA, WI, GA Judicial Selection Battles

NY Times summarizes battles over several states' courts.

“We need to get past the fiction that judges are umpires that just call balls and strikes,” Indiana University Law professor Charles Geyh said. “Ideology will affect their decisions.”

Sunday, March 20, 2016

British Judicial Selection

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.”

Friday, March 11, 2016

Battle Over Supreme Court Nomination in New Jersey Mirrors Battle for US Supreme Court Seat

New Jersey judges are selected basically the same way federal judges are: executive branch nominates and then senate votes to confirm. "All New Jersey judges are appointed initially to seven-year terms and must be re-nominated by the governor and confirmed by the state Senate to gain tenure until the mandatory retirement age of 70," explains NJ.com.

Much like at the federal level where the executive belongs to one party and the senate majority comes from the other party, NJ's Republican governor Chris Christie faces a Democratic senate. NJ Senate President Stephen Sweeney declined to give a hearing to Christie's latest nominee to fill the final vacant seat on New Jersey's highest court. He said the governor is trying to "pack" the bench with Republicans in a heavily Democratic state.

Republican state Sen. Kevin O'Toole said Republicans "deserve a 4-2-1 advantage on the court because a long-standing, unwritten rule that the party of the sitting governor should have an edge.
[Democrat] Sweeney insists Bauman would actually give the GOP a 5-2 advantage because Justice Jaynee Lavecchia is actually a Republican despite being registered as an unaffiliated voter."

Friday, February 26, 2016

The Politics of US Senate Confirmation of Federal Judges

The New York Times writes:

Since Republicans took control of the Senate in January 2015, the process that would enable Mr. Obama to fill vacancies on the 12 regional federal courts of appeal has essentially been halted. Mr. Obama has managed only one appointment because Republican senators have refused to sign off ahead of time on nominees for judgeships in their statesa traditional step before a president makes a nomination.
Just as there is no precedent for leaving a Supreme Court seat open because it is an election year, as Senator Mitch McConnell, the majority leader, vowed to do hours after Justice Scalia’s death was announced, there is also none for virtually shutting down the appointment of new appeals court judges so early. Each of Mr. Obama’s predecessors since Ronald Reagan also faced a Senate controlled by the opposing party, yet they appointed between 10 and 18 appellate judges in their last two years in office.
Republicans have framed their resistance as payback for the decision by Democrats in 2013 to change Senate rules and eliminate the ability of lawmakers in the minority to block confirmation votes with a filibuster. Republicans had used the tactic with unprecedented frequency while in the minority to slow or block Mr. Obama’s nominees as part of a tit-for-tat dating to 1987, when Senate Democrats rejected Reagan’s nomination of Robert H. Bork to the Supreme Court.

Retention Elections Unconstitutional in North Carolina

A 2015 North Carolina statute tried to change judicial retention from contestable elections (2 or more candidates) to retention elections (yes or no vote on retaining the incumbent). As the News & Observer puts it, the "law gives most sitting justices the option to be re-elected to additional eight-year terms without head-to-head matchups with challengers. Instead, the justice can choose to be elected in an up-or-down vote." The Superior Court held this unconstitutional.

Read more here: http://www.newsobserver.com/news/state/north-carolina/article61153192.html#storylink=cpy

Friday, January 29, 2016

South Carolina Supreme Court Selection

South Carolina is one of only two states (along with Virginia) in which the legislature selects the supreme court.  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.

Selection of a state Supreme Court justice by the SC General Assembly (legislature) begins with the state constitution which provides that "the General Assembly by law shall establish a Judicial Merit Selection Commission to consider the qualifications and fitness of candidates for all judicial positions on these courts and on other courts of this State which are filled by election of the General Assembly. The General Assembly must elect the judges and justices from among the nominees of the commission to fill a vacancy on these courts. No person may be elected to these judicial positions unless he or she has been found qualified by the commission...."

Now three candidates have cleared screening by the Judicial Standards Commission and are campaigning among legislators. As The State reports, "The election is on Feb. 3 at noon, when the 169 senators and representatives will gather in the House of Representatives. A winning candidate must have 85 votes – one-half of the 169 senators and representatives plus one – to win. A senator’s vote counts as much as a representative’s."

Read more here: http://www.thestate.com/news/local/article56203735.html#storylink=cpy

More on South Carolina judicial selection here.