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

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Thursday, December 14, 2017

Judicial Election Campaign Funding

Who Pays for Judicial Races? The Politics of Judicial Elections is a report by Alicia Bannon of the Brennan Center for Justice. The report includes statistics on judicial campaign finance and is written from the Brennan Center's progressive perspective that opposes judicial elections.

Monday, December 11, 2017

"Massive Changes" to North Carolina Judicial Selection?

A special committee of the North Carolina Senate is "looking at whether to propose massive changes to the state's judiciary" according to the Associated Press.

North Carolina judicial elections have been controversial and some testimony "backed altering the state's current method of selecting judges, offering options to legislators focusing more on appointments and confirmations and less on current head-to-head elections."

University of North Carolina law school dean Martin Brinkley said "he personally backs a method mimicking the selection of federal judges — executive branch nominations then subject to legislative confirmation."   I agree.

Friday, November 17, 2017

"Blue Slip" Power to Stop Judge Nominees Weakens

The "blue slip" tradition allows a home-state senator to stop a president's nominee for the federal bench by the senator refusing to return a sheet of paper, known as a blue slip, to the Judiciary Committee.

Nevertheless, current Judiciary Chair Grassley said from the Senate floor “the Judiciary Committee will hold a hearing for two circuit court nominees, each of whom has one home state senator who has not returned a blue slip containing a positive endorsement.” He has scheduled Nov. 29 hearings for David Stras, Trump’s nomination to be an appellate judge on the 8th Circuit, and for Kyle Duncan, nominated to serve the 5th Circuit.

According to the Hill, “A blue slip policy allowing a single senator to block a nominee from even receiving Committee consideration is a more extreme example of a counter-majoritarian practice,” said a memo released earlier this month by Grassley’s staff.

Politico quotes Grassley: “The Democrats seriously regret that they abolished the filibuster, as I warned them they would, but they can’t expect to use the blue slip courtesy in its place. That’s not what the blue slip is meant for.”

Saturday, October 28, 2017

NC Judicial Terms Shortening?

Partisan battling over North Carolina's methods of judicial selection enters a new phrase. Currently, judges of the North Carolina Supreme Court and Court of Appeals serve eight-year terms, while North Carolina District Court judges currently serve four-year terms. Republican committee chairs of the North Carolina legislature proposed a constitutional amendment reducing terms for all judges to two years and ending sitting judges’ terms in 2018.  This is opposed by the Progressive Pulse.

Wednesday, October 11, 2017

US Senate to End "Blue Slips" Blocking Judicial Nominees?

U.S. Senate Majority Leader Mitch McConnell reportedly said that a federal judicial nominee's home-state senators will no longer be able to use “blue slips” to deny a nominee a Senate Judiciary Committee hearing and vote on confirmation.

Hat tip to law professor Rick Hasen who calls this a "a serious escalation in the judicial wars."

Tuesday, October 10, 2017

Proposal to End Elections of Illinois Appellate and Supreme Court Justices

Peter Alexander and George M. Vineyard argue for what they call "merit selection."

The abstract says:

"The authors’ thesis is that voters either are so uninformed or have been so misled about what Illinois appellate and supreme court justices do that the voters are not in the best position to select justices to the two reviewing courts. To support their analysis, the authors conducted a survey of Illinois registered voters to determine exactly what they know about the qualifications and job duties of Illinois' highest two courts."

Sunday, August 6, 2017

More Evidence That Bar-Empowering Nominating Commissions Tilt Courts Left

Missouri is one of about 9 states that privileges its bar in selection of state supreme court justices. Missouri's appellate nominating commissions has some seats selected by the state's lawyers. This bar-privileging system yields a judiciary with a disproportionate number of Democrats and few Republicans. State Rep. Nick Schroer, a lawyer, explains of the last "30 nominees stretching from 1995 to today — the Appellate Judicial Commission has nominated only three Republicans."

Stanford University Professor Adam Bonica, et al. on lawyers' liberal tilt.

Vanderbilt Law Professor Brian Fitzpatrick has analyzed the impact lawyers' liberalism has on judicial selection.

More on lawyers' progressive tilt.

Monday, June 26, 2017

FL Supreme Court Selection

Last week's Florida Bar Convention included a serious discussion of Florida Supreme Court selection and retention involving Professors Brian Fitzpatrick

Chris Bonneau

and yours truly, Stephen Ware.
Stephen Ware, KU Law Professor, Judicial Selection

As the Daily Business Review summarizes:

 research shows judicial nominating commissions like Florida's, with some members chosen by the bar, tend to pick judges who are more liberal than the state's population. And retention elections for justices see low participation and high shares of "yes" votes, the professors said Thursday during a panel hosted by the bar's constitutional judiciary committee.
"I think it's a healthy thing to think about whether you might want to switch to a different method," said Brian Fitzpatrick, a law professor at Vanderbilt University... States where lawyers have a bigger hand picking justices end up with a more liberal bench, according to his research.
Why? Because lawyers tend to be liberal, Fitzpatrick said... he would still change the system that gives the Florida Bar's board of governors the power to nominate four of nine members of the Supreme Court Judicial Nominating Commission.
University of Kansas law professor Stephen Ware would do the same. When state supreme courts skew more liberal than the population, conservatives start opposing justices' retention, and then liberals and bar groups charge conservatives with trying to politicize the courts, he said.
"It's not an ideal pattern," Ware said.
Instead, lawyers need to admit to themselves that political leanings on the bench exist and matter, Ware argued. Therefore, the judicial selection process should be more democratic. He suggested adopting the model federal courts use, with transparent, public Senate confirmations.
Because judicial independence is important, Ware said the retention process should consist of nonrenewable terms of 16 years or so. A lack of retention elections keeps judges from "looking over their shoulders" as they make rulings, he said.
Chris Bonneau, a nonlawyer who teaches political science at the University of Pittsburgh, believes state justices should be chosen through partisan elections.

Thoughtful contributions to this discussion also came from Judge Michelle Sisco, Dean Cannon, and Richard Levenstein, who appear with the Professors Fitzpatrick and Ware on this interview by the Legal Talk Network, hosted by Florida Bar President Michael Higer. Listen on YouTube

Saturday, June 10, 2017

New Jersey Judicial Retention

New Jersey's Supreme Court justices have more secure positions than high court judges in nearly any other state. While most states' supreme court justices retain their seats only if they win re-election or re-appointment every several years, New Jersey's justices are nominated by the governor and confirmed by the Senate for an initial 7-year term, after which the governor may renominate the justice, subject to Senate consent, for a position until age 70.

The judicial independence fostered by this long-term seems wise to me. However, some NJ legislators have proposed a constitutional amendment that in the words of NJ.com "would have voters give them a thumbs-up or thumbs-down every four years." In other words, retention elections, in which the incumbent faces no opposing candidate but must simply win a majority of yes (rather than no) votes. Nearly all judges around the country win retention elections.

Tuesday, April 25, 2017

Bills Advance to Reform Missouri Plan of Judicial Selection

A Missouri senate committee has advanced bills to reform the Missouri Plan of judicial selection.

If approved by voters, SJR 11 would allow the governor to appoint the new judge from a list of names of all qualified applicants, submitted by a nonpartisan judicial commission, rather than from a list of only three names. This would reduce the power of the commission. This would advance democratic legitimacy because the commission has some members selected by the bar.

Monday, March 27, 2017

Partisan Judicial Elections in North Carolina

North Carolina changed its trial judge elections from partisan to non-partisan in the 1990's. Now it is returning to partisan elections. Republican legislators supporting partisan elections overrode the veto of the Democratic governor.

Tuesday, March 14, 2017

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.

Friday, January 27, 2017

Bills to Change Hawaii Judicial Retention by Replacing Commission with Senate

Hawaii's judges are appointed for an initial term by the Governor (or, for district judges, the Chief Justice) from a list prepared by the state’s Judicial Nominating Commission. The pick is then subject to Senate confirmation. However, for subsequent terms, the judge need only return to the Judicial Nominating Commission for reappointment; neither the Governor nor the Senate plays a role. (Hawaii Constitution Art. VI, Sec. 3).

The very first bill introduced in the Hawaii House this year calls for a constitutional amendment removing reappointment decisions from the commission and instead giving the Senate the final word in the reappointment of individual judges and justices, according to Ian Lind

The members of the Judicial Nominating Commission are listed here along with who appointed them.

Art. VI, Sect. 3 of the Hawaii Constitution reads:

The governor, with the consent of the senate, shall fill a vacancy in the office of the chief justice, supreme court, intermediate appellate court and circuit courts, by appointing a person from a list of not less than four, and not more than six, nominees for the vacancy, presented to the governor by the judicial selection commission.

If the governor fails to make any appointment within thirty days of presentation, or within ten days of the senate's rejection of any previous appointment, the appointment shall be made by the judicial selection commission from the list with the consent of the senate. If the senate fails to reject any appointment within thirty days thereof, it shall be deemed to have given its consent to such appointment. If the senate shall reject any appointment, the governor shall make another appointment from the list within ten days thereof. The same appointment and consent procedure shall be followed until a valid appointment has been made, or failing this, the commission shall make the appointment from the list, without senate consent.

The chief justice, with the consent of the senate, shall fill a vacancy in the district courts by appointing a person from a list of not less than six nominees for the vacancy presented by the judicial selection commission. If the chief justice fails to make the appointment within thirty days of presentation, or within ten days of the senate's rejection of any previous appointment, the appointment shall be made by the judicial selection commission from the list with the consent of the senate. The senate shall hold a public hearing and vote on each appointment within thirty days of any appointment. If the senate fails to do so, the nomination shall be returned to the commission and the commission shall make the appointment from the list without senate consent. The chief justice shall appoint per diem district court judges as provided by law.