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

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Wednesday, May 27, 2020

Cancellation of Georgia Supreme Court Election Raises Concerns about the Role of Interim Judicial Appointments

Georgia’s Supreme Court recently decided whether the next member of that court would be elected by the state’s people or appointed by the governor. With six justices recused (and temporarily replaced by five lower court judges), Barrow v. Raffensperger let stand the Georgia Secretary of State’s cancellation of an election to fill resigning Justice Blackwell’s seat, thus allowing Gov. Brian Kemp (R) to appoint Blackwell’s successor.

Georgia’s Constitution provides that “All Justices of the Supreme Court ... shall be elected on a nonpartisan basis for a term of six years. The terms of all judges thus elected shall begin the next January 1 after their election.” (Art. 6, § 7, Par. 1). “Vacancies shall be filled by appointment of the Governor,” (Art. 6, § 7, Par. 3) and “An appointee to an elective office shall serve until a successor is duly selected and qualified and until January 1 of the year following the next general election which is more than six months after such person's appointment.” (Art. 6, § 7, Par. 4)

Justice Blackwell’s current term is set to end Dec. 31, 2020, and a May 19, 2020, election was scheduled to fill the next standard six-year term for his office, which would begin on Jan. 1, 2021. However, on Feb. 26, 2020, Justice Blackwell submitted a letter to Governor Kemp resigning from his office effective Nov. 18, 2020. The Governor accepted Justice Blackwell’s resignation and announced that he would appoint a successor to the office. The Georgia Secretary of State canceled the May 19 election for the next term of Justice Blackwell’s office on the ground that Blackwell’s resignation, once it was accepted, created a vacancy that the Governor could fill by appointment, and thus no election was legally required. The Georgia Supreme Court agreed in Barrow v. Raffensperger.

However, a dissent argued the secretary of state cannot cancel an election “based on an expected or highly likely vacancy in the office” and progressive Ian Millhiser objected to this “scheme to keep Blackwell’s seat in the GOP’s hands.” Millhiser predicted in Vox that “The upshot of Barrow is likely to be that when a justice who belongs to the same party as the governor wishes to retire, they will submit a post-dated resignation similar to the one Blackwell submitted to Kemp. That will effectively give that justice’s party an extra two years to hold on to the justice’s seat before the next election takes place.”

Interesting to note that Millhiser’s characterization of the judicial seat as “in the GOP’s hands” refers to a state with ostensibly non-partisan elections. And Millhiser’s reference to “a justice who belongs to the same party as the governor” conflicts with the notion that sitting justices do not identify with a political party or that using non-partisan judicial elections, as Georgia does, can keep partisan politics from the bench.

Thanks to Arrian Ebrahimi for research assistance.

Thursday, May 7, 2020

Arizona Governor’s Record-Breaking Court Appointments Highlight Commission as the Only Check on the Governor

Arizona Governor Doug Ducey (R) just made headlines for setting a new record of 71 judicial appointments, a milestone that has drawn attention to the Arizona Commission on Appellate Appointments. The Commission is the only check on an Arizona governor’s appellate court appointments, because Arizona lacks confirmation of judicial nominees by the legislature. The force of the Commission’s check depends on the number of nominees the Commission sends the governor. “The more names you [the Commission] give him the more it’s like he can pick whoever he wants,” said former Arizona State University law dean Paul Bender. “The commission is there for a reason, and it’s to narrow down the people so the governor can appoint the best people… When you start sending in five or seven names, that doesn’t work as well anymore.”
When an Arizona appellate court vacancy occurs, Art. 6, Section 37(A) of the Arizona Constitution requires the Commission to “submit to the governor the names of not less than three persons nominated by it to fill such vacancy, but there is no maximum. In contrast, the constitutional maximum from supreme court nominating commissions is three in Colorado (Art. 6, § 20), Indiana (Art. 7,  § 10), Iowa (Art. V, § 15), Missouri (Art. V, § 25(a)), Oklahoma (Art. 3, § 4), and Wyoming (Art. 5, § 4). New York’s Constitution (Art. VI, § 2), does not specify a maximum for its highest court, the Court of Appeals, but its statutory maximum is seven. N.Y. Judiciary Law § 63(2).
Arizona’s legislature plays a role in selecting the Commission. Art. 6, § 36(A) of Arizona’s Constitution states that, the sixteen commission members

shall be composed of the chief justice of the supreme court, who shall be chairman, five attorney members, who shall be nominated by the board of governors of the state bar of Arizona and appointed by the governor with the advice and consent of the senate in the manner prescribed by law, and ten nonattorney members who shall be appointed by the governor with the advice and consent of the senate in the manner prescribed by law.

The same section continues to say that no more than three lawyer members and five nonlawyer members may be from the same political party. Similar rules of political balance apply to the commission itself. Art. 6, Section 37(A) says that no more than 60% of the nominees submitted to the governor may be of the same political party.
Arizona Gov. Ducey’s second term has seen the commission offer increasingly long lists of nominees. His recent appellate appointment of Cynthia Bailey came from a list of ten candidates, after the Commission only eliminated one applicant. In contrast, the average number of nominees submitted by the Commission in 2017 was six, and Ducey’s predecessor, Gov. Jan Brewer (R), only received lists of three nominees for all her Supreme Court appointments. This shift seems to have occurred after Gov. Ducey appointed five new members to the commission in 2017, leaving the panel with only Republicans and independents. Democrats, like state Sen. Rebecca Rios, argue that these appointments were “blatantly skewed.” She went on to say “[w]hen Gov. (Janet) Napolitano was governor, I think it's important to note that she, in fact, nominated seven Republicans” to the commission.
The governor’s increased freedom from the commission’s large slates manifested in 2019 when Gov. Ducey appointed Supreme Court Justice Bill Montgomery to the bench. After replacing the three retired commissioners who voted against nominating Montgomery earlier that year, the Commission unanimously approved adding his name to the seven-person finalist list in July.

Thanks to Arrian Ebrahimi for research assistance.

Saturday, May 2, 2020

Covid19 Pandemic Delays Governor in Filling Vacancies on Florida Supreme Court

Florida law gives Governor Ron DeSantis 60 days from Jan. 23 to fill vacancies on the Florida Supreme Court, but DeSantis said his power under his Mar. 9 pandemic emergency declaration allows him to extend the deadline.
Two of the court’s seven seats became vacant when two of DeSantis’ earlier appointments, Justices Barbara Lagoa and Robert Luck, were confirmed to the federal 11th Circuit Court of Appeals. Florida’s Constitution establishes a judicial nominating commission (JNC) charged with providing the governor “not fewer than three persons nor more than six persons” as nominees to fill vacancies, and Art. V, Section 11(c) states: “The governor shall make the appointment within sixty days after the nominations have been certified to the governor.” Those 60 days started Jan. 23 when the JNC submitted its nominations to Gov. DeSantis.
At a press briefing on Mar. 19, Gov. DeSantis was asked by a reporter: “You have until Monday to make two Florida Supreme Court decisions. Have you been able to interview all the nominees with everything that’s been going on?” The governor responded that he has interviewed the nominees but not read their judicial opinions in depth; therefore, he said “I will most likely delay under the state of emergency that deadline.” JNC chair Daniel Nordby agrees with Gov. DeSantis that the “slate of nominees isn’t affected by the expiration of the 60 days. I continue to have confidence in Governor DeSantis as he decides how best to fill these two vacancies from this talented list of nominees.”
However, not all court watchers approve of this delay. Adam Richardson, a West Palm Beach lawyer, asserts on Slate, that Gov. DeSantis “has been violating the state constitution since March 23. On that date, he refused to appoint two justices to fill vacancies on the Supreme Court of Florida by the constitutionally mandated deadline.” Richardson then refers to the case of the previous Florida governor, Charlie Crist, to miss the constitutional deadline for a judicial appointment. In 2009 Crist was sued by the retiring appellate judge whose seat on the Fifth District Court of Appeals he sought to fill. Gov. Crist rejected the JNC’s original six nominees, claiming that the panel overlooked qualified black candidates, and he asked the commission for a new slate. The JNC ignored this request, returning the same six names, and the governor subsequently refused to appoint a successor to Judge Robert Pleus. Judge Pleus’s suit against Gov. Crist came before the Florida Supreme Court, which held that “the Governor lacks authority under the constitution to seek a new list of nominees from the JNC and has a mandatory duty to fill the vacancy created by Petitioner's retirement with an appointment from the list certified to him” Pleus v. Crist, 14 So.3d 941, 946 (Fla. 2009). However, the court did not declare any repercussions if a governor passes the deadline.
The apparent power of the governor to exceed the 60-day limit would distinguish Florida from some other states with judicial nominating commissions. For instance, the Kansas Constitution says “In event of the failure of the governor to make the appointment within sixty days from the time the names of the nominees are submitted to him, the chief justice of the supreme court shall make the appointment from such nominees.” See Art. 3, § 5(b). Unclear whether an executive order declaring an emergency might forestall the chief justice. In a similar vein, the Missouri Constitution says “If the governor fails to appoint any of the nominees within sixty days after the list of nominees is submitted, the nonpartisan judicial commission making the nomination shall appoint one of the nominees to fill the vacancy.” See Art. 5, §25(a).

Thanks to Arrian Ebrahimi for research assistance.