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.

Senate Confirmation of State Judicial Nominees: Significant Impact?

In 2013, Kansas changed its Court of Appeals selection process to include state senate confirmation of the governor's nominee--a reform that may have just had a significant impact.

On March 15, 2019, Kansas Governor Laura Kelly, a Democrat, nominated District Judge Jeffry Jack to the Court of Appeals. However, a few days later, Gov. Kelly withdrew her nomination after tweets surfaced that showed Judge Jack "voicing his disdain for conservative leaders and Republican lawmakers in sometimes coarse, profane language" according to the Kansas City Star, which reports they "sometimes include F-bombs."

The Star also notes "In a statement regarding her appointment of the judge, Kelly said Jack was chosen from a list of finalists recommended by a committee of lawyers and non-lawyers, and that the choice was based on merit."

In nominating Judge Jack, Governor Kelly said: “Because I value transparency and the judicial merit-selection process, one of my first acts after my election was to create a committee of knowledgeable lawyers and non-lawyers to recommend finalists for the Court of Appeals vacancy...That committee ensured that our next Court of Appeals judge would be selected through an open process based on merit, and I thank the members of nominating committee for their work.”

Under the headline "After Judge Jack fiasco, legislators call for more oversight of court nominations", the Kansas City Star notes that: "One day after Gov. Laura Kelly withdrew his nomination to the state Court of Appeals, Republican lawmakers are pushing to remove Judge Jeffry Jack from his seat on the 11th District Court, and to mandate Senate confirmation of Supreme Court judges."

The Kansas Supreme Court is now chosen through a nominating commission, most of which is selected by the bar. The commission gives three names to the governor, who chooses the final candidate, without senate confirmation.

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.

NY Times Depicts Kansas Battle as Judicial Independence vs. Politicized Courts

Predictably-progressive oversimplifications by the Times include "In the Kansas system, judges are appointed by the governor," The Times fails to mention the bar's extraordinarily large role in selecting Kansas Supreme Court justices and the politicization that produces.

Kansas Increases Openness of the State's Judicial Selection

A bill that will make the Kansas Supreme Court Nominating Commission subject to the state’s open records and meetings laws has been signed by Gov. Sam Brownback. This new law should fix one of the Kansas Supreme Court selection system's major problems, hiding the votes of the commission, as hopefully the commission and courts will interpret this law to require the commission's votes be public records.

The other major problem with the Kansas Supreme Court selection system, the undemocratic selection of the commission, remains. Several members of the commission are selected in elections open only to members of the bar. However, secrecy in these elections has also been reduced by the recent bill, as it requires the clerk of the Kansas Supreme Court to submit a list of the lawyers eligible to vote to the Kansas Secretary of State’s Office ahead of these elections.

Finally, the bill requires the governor to disclose applicants for the Court of Appeals, the Wichita Eagle explains.

d more here: http://www.kansas.com/news/politics-government/article78389772.html#storylink=cpy

Transparency in Judicial Selection

The Kansas Legislature passed a bill to increase the transparency of the state's judicial selection. It would subject the bar-empowering Supreme Court Nominating Commission to the Open Records Act and Open Meetings Act, and require the governor to disclose applicants for the Court of Appeals.

Brian Lowry of the Wichita Eagle writes "The nominating commission for the Supreme Court is made up of four members appointed by the governor and five elected by the state’s practicing attorneys. The bill will require the clerk of the Kansas Supreme Court to submit a list of the attorneys to the secretary of state’s office prior to an election of attorney members, a provision that had been opposed by the Kansas Bar Association and Democratic lawmakers."

Read more here: http://www.kansas.com/news/politics-government/article75057252.html#storylink=cpy

KS, AR, OK, PA, WI, GA Judicial Selection Battles

NY Times summarizes battles over several states' courts.

“We need to get past the fiction that judges are umpires that just call balls and strikes,” Indiana University Law professor Charles Geyh said. “Ideology will affect their decisions.”

Kansas House Votes on Replacing Bar with Senate As Check on Governor's Power to Appoint Supreme Court Justices

Most members of the Kansas House voted to replace the state's bar-favoring "Missouri Plan" nominating commission with a senate confirmation system like that found in the US Constitution, but this reform did not reach the 2/3rds needed for a constitutional amendment.

Which representatives voted for an against shown on this Roll call vote

State Supreme Court Campaign Contributions

State supreme court campaign contributions detailed in a report by the Brennan Center, which is summarized by law professor Rick Hasen.

The progressive Brennan Center report uses strong language about Kansas conservatives: "Bullying in the Heartland—Political Assaults on the Kansas Supreme Court."

It also discusses North Carolina, Ohio and Tennessee. 

NY Times Connects Kansas School Funding with Kansas Judicial Selection

Unfortunately, the Times ("Under the current system, the governor chooses from three nominees put forth by a nine-member committee that includes lawyers and appointees of the governor") does not say who selects those lawyers, which is the problem with the current Kansas Supreme Court selection process.

Progress for Bill to Reduce Secrecy of Kansas Supreme Court Selection Process

The Kansas Senate passed SB197 which would require a public list of which lawyers are eligible to vote for the supreme court nominating commission and which lawyers voted. It would also subject the commission to the Open Meetings Act.

For the Kansas Court of Appeals, SB 197 would require the governor to make public each applicant's name.

Kansas Senate Confirmation Hearing for Court of Appeals

The Senate Judiciary Committee voted yesterday in favor of Kathryn Gardner's confirmation to the Kansas Court of Appeals. The hearing "was tense as committee chairman Republican Sen. Jeff King aggressively questioned her qualifications." This is in contrast to the predictions of some who worry that if the senate is controlled by members of the governor's party the governor's nominee will not be scrutinized seriously.

Also, some people complain that a senate confirmation process does not reveal who other than the governor's nominee applied for the position. For instance, AP reports Sen.Carolyn McGinn said she "believed Gardner answered questions well, but wished the names of other applicants to the position were made public." But two lawyers (Suzanne Valdez and Dennis Depew) told The Wichita Eagle that they applied.

Kansas Supreme Court Selection Reform and School Finance

This article in the Wichita Eagle by Bryan Lowry is one of the better news stories on the Kansas Supreme Court selection process because it describes that process accurately "The current system relies on a nine-member commission to choose nominees, with four of those members appointed by the governor and the other five selected by a vote of the state’s practice attorneys" rather than (as many lower quality articles say) "a non-partisan commission of attorneys and non-attorneys."

Bryan Lowry also rightly refrains from using the propaganda phrase "merit selection" to describe the current system.

Renewed Push to Change Kansas Supreme Court Selection

Changing the way Supreme Court justices are selected will be the highest priority for the majority of the Kansas Legislature this year, according to Chapman Rackaway, a political science professor at Fort Hays State University.

"Obviously the governor wants selection of all judges to be consolidated under the governor’s office, and so that’s going to be a front-burner issue for this legislature," Rackaway said. "They’ll get it done. They have plenty of loyalty to the governor. They share his goal on this. So I think that would be a pretty easy thing for them to get done."

I don't know that I agree with this.  First, a constitutional amendment to change Kansas Supreme Court selection requires two-thirds of both houses of the legislature, which is part of why constitutional amendments are pretty rare.

Second, I wouldn't characterize this issue as this governor wanting more power over judicial selection.  Those of us advocating reform have been advocating it through several governors of both parties and, in my case, advocating it nationally regardless of the state's political leanings.  Moving from the Kansas's current bar-empowering version of the Missouri Plan to a senate confirmation is a matter of principle for the long-term, not a way to empower a particular governor at a particular time and place.

Kansas Judicial Retention Elections

As I noted in October, The Kansas Republican Party's chairman and GOP Gov. Sam Brownback encouraged voters to remove two of the court's seven justices in the Nov. 4 election.  The two, Justices Lee Johnson and Eric Rosen, both appointed by former Democratic Gov. Kathleen Sebelius, kept their jobs but won less than 53 percent of the vote.

Previously, no Kansas justice had received a "yes" vote of less than 62 percent and that was in 2010, when the anti-abortion group Kansans for Life waged a "fire Beier" campaign against Justice Carol Beier.

As Brad Cooper of the KC Star writes, "Some scholars attribute the increasing profile of retention elections to the way states like Kansas pick judges. The say those systems, which employ a screening process for candidates, are influenced too much by lawyers with liberal inclinations."  
 
What is this screening process and what role does it give lawyers? 

 As Cooper writes, "Supreme Court justices in Kansas are appointed by the governor, who chooses from a panel of three candidates recommended by a screening panel made up of five lawyers and four nonlawyers."  

What is crucial, however, is that those five lawyers are selected in a shockingly undemocratic way.  They are selected in elections open to only about 10,000 people in the state: the members of the Kansas Bar. No other state allows its bar to select a majority of its nominating commission.  Kansas Supreme Court selection is undemocratic and extreme.

I'm not sure about Cooper's statement that "About half the states choose Supreme Court judges using screening committees similar to Kansas’ system." Perhaps this means only that about the half states have a nominating commission, but the keys are:

1. Is if there is a nominating commission, then who selects its members.  Who picks the pickers? 

2. Is the nominating commission able to ensure that one of its nominees joins the court or is the governor's choice among those nominees subject to senate confirmation which, if denied, may require the commission to nominate someone else.

Kansas Gov. Debate Features Judicial Selection

Kansas Gov. Sam Brownback "assailed Democratic challenger Paul Davis Tuesday as a liberal who would appoint Kansas Supreme Court justices overly sympathetic to violent criminals, and Davis accused the Republican incumbent of trying to exploit a high-profile Wichita murder case to boost his re-election chances."  AP explains "The confrontation during their fourth and final debate came on the same day Brownback's campaign released a television ad referencing brothers Reginald and Jonathan Carr, whose death sentences for a quadruple homicide were vacated by the state Supreme Court in July."

The following sentence of this article unfortunately departs from good journalism to use one side's talking points in describing the current Kansas Supreme Court selection system.  "Brownback has long sought more power to directly appoint justices rather than use a longstanding merit system in which a committee comprised of lawyers and members of the public send up suggestions. The system was changed during his administration to give him more power over appointments to the Kansas Court of Appeals, but it takes a constitutional amendment to give him similar authority to appoint justices to the Kansas Supreme Court."

Where is the evidence that the current Kansas system produces more "merit" in the judiciary than the senate confirmation system advocated by Brownback, me and the Framers of the US Constitution (which has had a senate confirmation system for centuries)?  Responsible advocates of that system have stopped calling it "merit selection" because that phrase is just one interest group's propaganda. See pp. 760-62 of the article linked here.

And why describe the committee as "comprised of lawyers and members of the public", which sounds so reasonable by hiding the key issue of who selects the committee?  Why not more accurately explain that the committee is comprised of 5 lawyers selected by their fellow lawyers (the bar) and four non-lawyers selected by the governor?  Having the lawyers selected in such an undemocratic way is the controversial part of the current system but you'd never know that from this article.

Also, the article is simply wrong in saying the committee "send[s] up suggestions."  They are not "suggestions."  They are requirements.  The governor must pick one of the committee's 3 favorites.
The committee (actually "commission") is very powerful and that's why the undemocratic selection of it is so troubling.  But you'd never know that from this article.  Nor would you know that Kansas is the only state that it allows its bar so much power in picking its commission.

More about Kansas Supreme Court selection here and here

"Impartial" information for voters in judicial elections.

Election day is about a month away and that's true as well of judicial elections.  "In November, eight states will choose supreme court justices in contested elections, and justices will stand for retention in fourteen states."  And in some of these states Malia Reddick writes "judicial performance evaluation (JPE) programs are providing citizens with impartial assessments of judges’ performance on the bench."  In Kansas, the JPE program was defunded two years ago.

Today's Radio Discussion of Kansas Supreme Court Selection

Today Kansas City Public Radio says "Gov. Brownback's Selection Of Stegall Stirs Debate Over Judge Selection Process" and "A recent change in Kansas law has re-ignited the debate on how judges are selected to the bench. In this edition of Up to Date, Steve Kraske examines the methods for seating judges, and who should hold the final say in how they are chosen.
Radio discussion guests:
Stephen Ware is a Professor of Law at the University of Kansas.
Matthew Menendez is counsel for the Democracy Program at the Brennan Center for Justice at the New York University School of Law."

Kansas Supreme Court Applicants Interview Schedules

The interviews (Aug. 4 and 5) at the Kansas Judicial Center in Topeka are open to the public but cameras and recording devices are prohibited.  The applicants for the Kansas Supreme Court position are listed here.

Kansas Supreme Court Applicants Include Governor's Former Counsel

As Scott Rothchild puts it, "Six months after having been sworn in as the newest judge on the Kansas Court of Appeals, Caleb Stegall is seeking a promotion to the Kansas Supreme Court."  While Kansas Court of Appeals judges are appointed by the governor subject to senate confirmation, Kansas Supreme Court justices are selected under a system in which a nominating commission (5 of whose 9 members are selected by the bar) screens applicants and submits the names of 3 finalists to the governor.

The senate confirmation system is compared to the nominating commission system here (short) and here (long)