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

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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."