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

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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.