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

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Friday, December 14, 2018

Judicial Selection is Senate GOP Leader's "Most Significant, Long-Term Contribution"

Senate Majority Leader Mitch McConnell (R-KY) called judge confirmations “the most significant, long-term contribution we are making to the country”.

The NY Times writes that while some nominations are controversial in "other cases, the nominees have carried vaunted résumés and commendations from their home-state senators, and in the spirit of bipartisanship, several of the district court nominees were first selected by President Barack Obama. For the most part, those nominees have passed through the Senate (though often along party-line votes) with the ministerial ease once expected for judicial confirmations."

Thursday, November 1, 2018

Reforming SCOTUS For Ideological Balance

As decisions by — and appointments to — the Supreme Court have become increasingly divisive, several reformers suggest replacing justices' life tenure with non-renewable terms of 18 years, such that one term ends every two years. That way, as Nevada Law Professor David Orentlicher explains, "less would be at stake with each nomination, justices could not time their retirements for partisan reasons, and appointments would be divided more evenly between Democratic and Republican presidents."

Orentlicher says "There is a sound argument to be made that Supreme Court reform is constitutionally required. In particular, principles of due process and the framers’ original intent provide good reason to think that neither a conservative nor liberal Court majority should be able to impose its views on the country."

While I doubt such reform is constitutionally required, Orentlicher notes interesting European examples:

  • "In Germany, for example, nominees to the Constitutional Court must receive a two-thirds vote of approval and therefore must appeal to legislators on both sides of the partisan aisle."
  • "In many European nations, high court decisions are made by consensus, or at least a supermajority vote, so justices on both sides of the ideological spectrum have to support the courts’ opinions. The U.S. Supreme Court itself observed a norm of consensual decisionmaking for most of its history. Until 1941, the justices typically spoke unanimously. Only about 8 percent of cases included a dissenting opinion. Now, one or more justices dissent in about 60 percent of rulings."

Thursday, October 18, 2018

Republicans "Take Democrats' Lunch Money" on Post-Kavanaugh Judicial Selection

Liberal advocacy group Demand Justice charges Democrats “didn’t just get stuffed in a locker here; they had their lunch money taken,” in failing to delay confirmation hearings for lower federal courts. Good response that Dems secured an agreement to prevent confirmation of judges before the election but lack the power to prevent confirmation hearings now, and thus actual confirmations during the lame-duck session after election.

One of the judicial nominees, Allison Rushing, is 36 years old, and 11 years out of law school.

Thursday, October 11, 2018

Progressive Arguments on Judicial Selection

The progressive Brennan Center has published Choosing State Judges: A Plan for Reform by
Alicia Bannon. It:

recommend[s] that states do away with state supreme court elections completely. Instead, justices should be appointed through a publicly accountable process conducted by an independent nominating commission. Furthermore, to genuinely preserve judicial independence, all justices should serve a single, lengthy term. No matter the mechanism by which they reach the bench, be it an election or an appointment by the governor or legislature, justices should be freed from wondering if their rulings will affect their job security. 

 I support this "single, lengthy term" view of judicial retention, but think much is lost in the Brennan Center's vague "A judge’s job is to apply the law fairly and protect our rights." This phrase can mislead people into believing that judges merely apply law made by someone else (constitution, statute) rather than make law, which judges have been doing for centuries in making the common law and in interpreting vague provisions of constitutions and statutes. The problem with advocating "an independent nominating commission" is hiding from the public the inevitable lawmaking function of judges (particularly state supreme court justices) and thus allowing powerful insiders (typically the bar) disproportionate power. Several states even go so far as allowing the bar to pick some members of the supposedly "independent" nominating commission. 

Wednesday, October 3, 2018

Will Divided Government Ever Again Confirm a Supreme Court Justice?

Republicans were guilty of "denying Obama his constitutional right to appoint a Supreme Court justice with almost a year left in Obama’s term," according to Thomas L. Friedman's column in the New York Times today, which links an NPR story saying: “Supreme Court picks have often been controversial. There have been contentious hearings and floor debates and contested votes. But to ignore the nominee entirely, as if no vacancy existed? There was no precedent for such an action since the period around the Civil War.”

Friedman writes:

In a speech in August 2016, McConnell boasted: “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy.’”

That was a turning point. That was cheating. What McConnell did broke something very big. Now Democrats will surely be tempted to do the same when they get the power to do so, and that is how a great system of government, built on constitutional checks and balances, strong institutions and basic norms of decency, unravels.

Possibly, but I'm not so sure. I wonder if presidents will still be able to get justices confirmed by opposing-party senates if the president offers deals like "Vote for my SCOTUS nominee and I'll sign your bills on immigration and taxes." Such deals would be an example of the "logrolling" long central to the sausage-making of legislation.

Friday, September 21, 2018

Florida Supreme Court Selection Litigation

Three Florida Supreme Court justices are required to leave the court in January because of reaching a mandatory retirement age. All three are, the Orlando Sentinel writes, part of what is "widely considered a left-leaning majority on the seven-member court." That has led to the possibility that their replacements could spur a rightward shift of the court, debate about whether Republican Gov. Rick Scott, who will also leave office in January, should have the authority to appoint the new justices or whether that power should go to his successor. 

The Judicial Nominating Commission will have 60 days — expiring shortly after the election — to nominate a list of three to six people for each court vacancy. Unless a lawsuit stops this process. "The League of Women Voters and Common Cause of Florida have asked the state supreme court to stop the Judicial Nominating Commission from nominating candidates to fill the vacancies," The Tampa Bay Times reports. "Their case was previously struck down because Scott had not yet picked new justices, but last week, he directed the commission to begin seeking nominees."

Monday, September 3, 2018

Tuesday, August 28, 2018

Impeachment of Entire West Virginia Supreme Court

The West Virginia House voted to impeach four West Virginia Supreme Court Justices. The only remaining justice resigned prior to the introduction of the articles of impeachment.

The articles of impeachment refer to the "waste [of] state funds with little or no concern for the costs to be borne by the tax payer for unnecessary and lavish spending in the renovation and remodeling of his personal office after questions arose about expensive, state funded office renovations."

NBC reports "Republican Gov. Jim Justice will be allowed to appoint new justices to replace any who are impeached — with no requirement that they be from the same party as the incumbent. Democrats have accused Republicans of attempting to wrest the court away from voters, who elected the current justices in nonpartisan elections."

Sunday, August 26, 2018

Kavanaugh's Effect on Supreme Court in Historical Perspective

The U.S. Supreme Court is by far the most important court in the country, so it's the site of the most important judicial selection in the country. This importance is heightened further with selection of a replacement for a "swing vote" like Justice Kennedy, whose seat may soon be filled Brett Kavanaugh. This conservative move is placed in historical context by Emily Bazelon in today's NY Times.

Monday, August 13, 2018

Impeach Entire Supreme Court of West Virginia?

A West Virginia House panel moved last week to impeach the state’s entire Supreme Court. “There’s a culture of entitlement and cavalier indifference and disregard for the expenditure of taxpayer money,” said House Judiciary Chairman John Shott, R-Mercer, whose committee issued articles of impeachment after 8 days of testimony.

"Elections to the state Supreme Court became formally nonpartisan in 2015. But each justice remains tied to a given party, and the current makeup of the court is 3-2 in the Democrats’ favor" reports the Washington Post. "Democratic lawmakers said the court’s political composition and the timing of the legislative [impeachment] proceedings, which have come just before the August 14 deadline to organize a special election, call into question the intentions of Gov. Jim Justice, who switched parties and became a Republican after taking office last year. Once next week’s deadline passes, he would enjoy the power to appoint any new justices, who would serve until the next election in two years."

Monday, August 6, 2018

Term Limits on Federal Judges?

Matthew Seligman, Visiting Professor at Cardozo School of Law, has posted Constitutional Politics, Court Packing, and Judicial Appointments Reform

The Abstract states in part:
With Justice Kennedy’s retirement and probable replacement with a new Justice appointed by President Trump, Republican Presidents will have appointed five of the nine Supreme Court Justices. This despite the fact that Democratic candidates have won the popular vote in six of the last seven Presidential elections. That apparent disparity between the allocation of judicial power and the democratic will of most Americans poses a potential challenge to the legitimacy of the judiciary. That has in turn prompted recent calls for Democrats to add seats to the Supreme Court when they return to power. This Essay examines the constitutional politics of the appointments process in an era of rising partisanship and constitutional hardball through the lens of game theory. It offers the counterintuitive conclusion that in this moment of cratering cooperation and collapsing constitutional norms, there may be a rare political and legal opportunity to restructure the judicial appointments process for the better and for good. The present constitutional moment provides a unique opening to solve the problem permanently through the perennial reform proposal: judicial term limits with regularized appointments.

Wednesday, August 1, 2018

Trial and Appellate Judges Should be Selected by Different Methods

Tailored Judicial Selection is Maine Law Professor Dmitry Bam's new article in the University of Arkansas at Little Rock Law Review.

The abstract says in part:

"approximately forty states using a uniform selection method for all levels of their state courts. For example, in fourteen states all judges are appointed by the governor from a list submitted by a judicial nominating commission. Another fourteen use nonpartisan elections for all their judges. Eight more use partisan elections for all their judges. All in all, once a state chooses a selection and retention method for its judges, it adopts that approach for the whole judiciary.

But it does not have to be this way. In this article, I will suggest that we should at least consider tailoring the judicial selection method to different levels of the judiciary. After all, judges are not a monolithic, homogenous group, and the work of a trial judge differs significantly from the work of an appellate judge. I will show that different selection methods may be appropriate for trial judges than for appellate judges. What I call “tailored judicial selection” can help address some of the concerns raised by the proponents and the opponents of various methods of judicial selection."

I agree, and thank Prof. Bam for quoting Stephen J. Ware, Originalism, Balanced Legal Realism and Judicial Selection: A Case Study, Kan. J.L. & Pub. Pol'y, Spring 2013, at 165, 181: "The political/lawmaking side of judging looms larger, the higher the court. In other words, the extent to which (inevitable) judicial lawmaking allows judges to inject their political views into law rises, the higher the court. Trial judges play less of a lawmaking role than appellate judges, especially supreme court justices, simply because court systems are hierarchical and trial courts are at the bottom. The legal rulings of trial courts can be reversed, de novo, by appellate courts. In contrast, appellate courts are often the final word, as a practical matter, on issues of law."

Thursday, July 19, 2018

Change to North Carolina Judicial Selection on Ballot

North Carolina voters will at the next election vote on whether to amend their state constitution to change the way judicial vacancies are filled.

Currently, North Carolina judges are elected and mid-term vacancies are filled by the governor until the next election.

The proposal would have nominating commission pass its findings to the legislature which would pick two nominees from which the governor must choose.

Perhaps no coincidence that the governor is a Democrat but Republicans hold majorities in the legislature.

Tuesday, July 3, 2018

Quick Summaries of Short List for SCT

Brett Kavanaugh, Amy Coney Barrett, et al., are discussed by Richard Wolf and David Jackson in USA Today.

Analysis of Judges Kavanaugh and Barrett along with Judges Thomas Hardiman of the Third Circuit, and Amul Thapar and Raymond Kethledge from the Sixth Circuit, by Adam Feldman at Empirical SCOTUS

Thursday, May 24, 2018

Listen to the Case for "Political Appointment" of Judges

Vanderbilt Law Professor Brian Fitzpatrick and University of Kansas Law Professor Stephen Ware discuss what Prof. Fitzpatrick's recent paper calls "political appointment" as the best way to select state judges.

Saturday, May 19, 2018

The Case for "Political Appointment" of Judges

Vanderbilt Law Professor Brian Fitzpatrick authored a new paper arguing for what he calls "political appointment" as the best way to select state judges.

Prof. Fitzpatrick and I will discuss this paper in a Teleforum this Monday, May
21, 2018, 1:00pm - 2:00pm EDT for the Federalist Society

Monday, April 16, 2018

NY Times on Many States' Judicial Selection

The New York Times recently editorialized in favor of judicial independence against partisan attacks by Republicans. The Times mentions Wisconsin, Kansas, North Carolina, Washington, Pennsylvania, and Missouri.

Monday, April 2, 2018

Tomorrow's Election for Wisconsin Supreme Court includes National Money for Democratic Candidate

Democrats "aim to turn a race for state Supreme Court into the next nationalized race," according to Politico. President Obama’s attorney general, Eric Holder, is backing Rebecca Dallet, a Milwaukee County circuit court judge. The National Democratic Redistricting Committee, according to Politico,  has invested $140,000 in a digital ad program promoting Dallet, whose opponent is Judge Michael Screnock.

The Wisconsin State Journal reports on the race's final debate