Utah Judicial Selection in National Perspective

Utah is interesting, and not just for Mitt Romney being the only senator to break from party over removing President Trump from office. A proposed amendment to the Utah Constitution is a chance to note that Utah is also interesting because its method of supreme court selection seems to appeal both to advocates of "merit selection" and to people (like me) who reject that label, and what it often conceals, in favor of "democratic appointment."

The gist of "merit selection" (better called the "Missouri Plan") is that applicants for a judgeship are vetted by a nominating commission that supposedly cares about "merit" rather than "politics". Only the commission's three (or so) finalists may be chosen by the governor to fill the judgeship.

With the commission playing such a key role as gatekeeper to the court, the key is who appoints the commission? Who picks the picker?

Unfortunately, many "merit selection" states allow the bar to pick some members of the commission,  which violates basic democratic equality by privileging lawyers above their fellow citizens in the selection of important public officials. These officials, as every lawyer knows, sometimes move the law in a progressive direction or a conservative direction. State supreme court justices are important lawmakers.

Important lawmakers should, in our democratic society, be exercised by people selected in a democratic manner.

Fortunately, this does not have to mean electing judges. That sort of direct democracy is not as good for judges as the indirect democracy of having the executive and legislative branches select the judicial branch, as we do for federal judges with senate confirmation. In fourteen states (listed below), the governor's judicial nominees to the highest court are confirmed by the senate, whole legislature, or other popularly-elected officials. This is the usual method of "democratic appointment" I support.

But suppose the governor must pick from a commission's finalists before sending the governor's pick to the senate for confirmation? That three-step process (commission to governor to legislature) is  how Utah judges are selected.

This is still "democratic appointment" if the commission is selected in a democratically-legitimate way, as opposed to having commissioners selected by the bar. Fortunately, 4 of the 7 members of the Utah Appellate Nominating Commission are selected in a democratically-legitimate way--by the governor. Two more the governor also gets to appoint but only from a list of nominees submitted by the Utah State Bar. The chief justice appoints another member of the Utah Judicial Council to serve as a nonvoting member of each commission.

So Utah does give the bar a formal role it should not have w/r/t 2 of the 7 commissioners. But that's far from the states that allow the bar to pick (not merely suggest names to the governor) about half the commission. And I wonder whether Utah governors ever reject the bar's suggestions as occurs in Florida, which has a similar system?

Utah calls its system "merit selection" and its constitution says "Selection of judges shall be based solely upon consideration of fitness for office without regard to any partisan political consideration."
Yet it nevertheless manages to be (almost completely?) democratically legitimate. Good for Utah.

The 16 states that select their high courts with a democratic method of appointment are:

California
Connecticut
Delaware
Hawaii
Maine
Maryland
Massachusetts
New Hampshire
New Jersey
New York
Rhode Island
South Carolina
Tennessee
Utah
Vermont
Virginia

Battle Over Supreme Court Nomination in New Jersey Mirrors Battle for US Supreme Court Seat

New Jersey judges are selected basically the same way federal judges are: executive branch nominates and then senate votes to confirm. "All New Jersey judges are appointed initially to seven-year terms and must be re-nominated by the governor and confirmed by the state Senate to gain tenure until the mandatory retirement age of 70," explains NJ.com.

Much like at the federal level where the executive belongs to one party and the senate majority comes from the other party, NJ's Republican governor Chris Christie faces a Democratic senate. NJ Senate President Stephen Sweeney declined to give a hearing to Christie's latest nominee to fill the final vacant seat on New Jersey's highest court. He said the governor is trying to "pack" the bench with Republicans in a heavily Democratic state.

Republican state Sen. Kevin O'Toole said Republicans "deserve a 4-2-1 advantage on the court because a long-standing, unwritten rule that the party of the sitting governor should have an edge.
[Democrat] Sweeney insists Bauman would actually give the GOP a 5-2 advantage because Justice Jaynee Lavecchia is actually a Republican despite being registered as an unaffiliated voter."

The Politics of US Senate Confirmation of Federal Judges

The New York Times writes:

Since Republicans took control of the Senate in January 2015, the process that would enable Mr. Obama to fill vacancies on the 12 regional federal courts of appeal has essentially been halted. Mr. Obama has managed only one appointment because Republican senators have refused to sign off ahead of time on nominees for judgeships in their states — a traditional step before a president makes a nomination.

...

Just as there is no precedent for leaving a Supreme Court seat open because it is an election year, as Senator Mitch McConnell, the majority leader, vowed to do hours after Justice Scalia’s death was announced, there is also none for virtually shutting down the appointment of new appeals court judges so early. Each of Mr. Obama’s predecessors since Ronald Reagan also faced a Senate controlled by the opposing party, yet they appointed between 10 and 18 appellate judges in their last two years in office.

...

Republicans have framed their resistance as payback for the decision by Democrats in 2013 to change Senate rules and eliminate the ability of lawmakers in the minority to block confirmation votes with a filibuster. Republicans had used the tactic with unprecedented frequency while in the minority to slow or block Mr. Obama’s nominees as part of a tit-for-tat dating to 1987, when Senate Democrats rejected Reagan’s nomination of Robert H. Bork to the Supreme Court.

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

Tennessee Supreme Court Selection

Tennessee voters in November amended the Tennessee Constitution to a "federal model" system in which the legislature confirms the governor's nominee to the Tennessee Supreme Court. The new constitutional provision in Article VI, Section 3 reads:

Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state. Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session. The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article.

Legislation necessary to carry out this system divides the Tennessee House and Senate, as explained by Bill Raftery. The Senate passed a bill in which the nominee would have win separate votes in each house of the legislature, while the House approved a bill in which confirmation would be a single vote that combines all members of the house and senate.

Bills to Change Kansas Supreme Court Selection

As reported in today's Lawrence Journal World. Three bills: lowering judicial retirement age and either judicial elections or "federal model" senate confirmation.

This article errs in referring to Kansas Bar Association when it should say Kansas Bar (not all members of the bar in the association and vice versa).

Kansas Gov. Brownback to Pursue Judicial Selection Reform

In this State of the State address this evening, Brownback "promised to take another run at a constitutional amendment that would give him and future governors the authority to pick the justices on the state Supreme Court, with the consent of the Senate", according to the Wichita Eagle which, unfortunately, uses the propagandistic phrase "merit system" to describe the current Kansas Supreme Court selection process. The Eagle describes the current system as involving "a commission of lawyers and lay people" but does not point out the controversial and undemocratic aspect of this system: Kansas is the only state that allows its bar to select a majority of the nominating commission.

As the Eagle says, "The Legislature already changed the selection process for the state Court of Appeals, but changing it for the Supreme Court would require a constitutional amendment."

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."

Judicial Elections vs. Federal Method (esp. in Florida)

The Miami Herald editorializes:

A member of the Miami Herald Editorial Board was present as the 20-plus members of the Florida Judicial Nominating Commission quizzed and grilled the 15 candidates for 25 minutes each, the final phase of a long process that began in July for the privilege of having their names recommended to Florida’s two U.S. senators.
    
In this race, voters did not pick the winner; the blue-ribbon panel made up of local legal eagles and community leaders had the honor — and somehow that seemed right and how, perhaps, it should be done for all judicial races.
 The different selection processes for state and federal judges — the first are generally elected, the latter selected — highlighted the anemic slate of judicial candidates and bitter races with plenty of mudslinging that played out in Miami-Dade and Broward last month. Judicial decorum was missing among a number of candidates.  Leaving aside the pros and cons of "mudslinging" in judicial elections, the role of judicial nominating commissions at the federal level raises several interesting questions.  Among them: 1. Who appoints the commission: "the blue-ribbon panel made up of local legal eagles and community leaders"?2. How much deference do Florida's senators give the commissions and why?3. How similar are commissions in the federal system (where ultimate power to select a judge rests with the president and sensate) to commissions in Missouri Plan states in which the commission and governors share power to select judges?

Read more here: http://www.miamiherald.com/2014/09/04/4328563/the-making-of-a-federal-judge.html#storylink=cpy

Conservative Criticism of Chris Christie's Judicial Nominees

by Carrie Severino (of Judicial Crisis Network) in National Review

Chris Christie's Judge Choices Criticized

by the conservative Judicial Crisis Network which says "Christie’s definition of a conservative sounds an awful lot like a liberal."
Christie adviser Mike DuHaime punched back: “They should get their facts straight,” DuHaime said. “Gov. Christie has nominated multiple conservatives to the Supreme Court, but several have been blocked by the Democrat state senate."

Politico summarizes: "A conservative judicial group is planning to run $75,000 in digital ads during New Jersey Gov. Chris Christie’s trip to Iowa later this week."

US Senate Unanimously Confirms Judge (3d Circuit)

Saranac Hale Spencer, writes in The Legal Intelligencer "In a rare move for the U.S. Senate, which has been crippled by its partisan divide, it unanimously confirmed Cheryl Krause for a seat on the U.S. Court of Appeals for the Third Circuit this week."

Republicans and Democrats Compromise on New Jersey Supreme Court

Republican New Jersey Governor Chris Christie decided to re-nominate a Democrat, Chief Justice Stuart Rabner, as part of a deal with the Democratic President of the State Senate, Stephen Sweeney. AP reports Christie will have Sweeney’s support for Republican Judge Lee Solomon’s high court nomination in return.

This seems to me a great example of a senate confirmation system working as it should.  When the executive and legislative branches are held by different parties, the judicial branch gets judges from each party.  More on the NJ Supreme Court selection process is here

Senate Confirmation of Judges Can Be Quite Detailed and Exacting

The Legal Times gives recent examples.

Bi-Partisan Progress Toward Judicial Selection Reform in Tennessee

Former Tennessee Gov. Phil Bredesen (D) and former Senator Fred Thompson (R) co-wrote an op-ed supporting the constitutional amendment to adopt a democratic appointment method for the state's appellate judges.  Amendment 2, which will be on the ballot in November, would move the state closer to the method of judicial selection adopted in the US Constitution.  As the President nominates federal judges subject to senate confirmation, similarly this amendment would have the Governor nominate judges subject to legislative confirmation. 

As the op-ed says, Amendment 2 has wide support from a broad array of organizations and officials.  Its chance of passage is encouraging to those of us who have been advocating this model of judicial selection for many years.

White House Says "This is the First Time Our Judicial Pool Has Been This Diverse"

President Obama nominated five more people for federal judgeships today.  One "would be the first openly gay male African-American federal district judge" according to the National Law Journal.  Also today, the White House website has nice graphics emphasizing diversity. 

Kansas Judicial Selection in Wall Street Journal

Wall Street Journal op-ed by Stephen Moore, entitled "Kansas Democracy Lesson", says upcoming school funding decision "is also a test of the state Supreme Court. Four of the seven Justices were appointed by former Governor Kathleen Sebelius, of ObamaCare fame, and nominees are chosen by a commission dominated by the State Bar Association. The commission selects three potential nominees, and the Governor must choose one of the three.  This gives the lawyers' guild effective control of the judiciary, creating a conflict of interest and pushing the judiciary to the left. Kansas Republicans want to change this selection process and let the Governor nominate state Supreme Court judges subject to state Senate confirmation, following the federal model. If the Justices impose an undemocratic tax increase, the GOP should move swiftly to reform judicial selection."

The commission has a majority of members selected by the state bar, not the state bar association.  (To be licensed to practice law in the state, a lawyer does not have to be a member of the association.)  This distinction is lost on many.  For instance, I wrote an op-ed years ago for the Wichita Eagle that said "bar" but the editors changed it to "bar association".

More substantively, I'm glad to see more national attention for the problem (in my view) of the bar having disproportionate power over judicial selection by getting a special role in selecting members of the nomination commission.  This has been my theme for many years and the problem is more extreme in Kansas than in any other state.  I think it's a problem whether it pushes the judiciary Left or Right or neither. But politically, I think Stephen Moore is right that legislators get more interested in judicial selection when judges tell legislators to spend more money on public schools.

Delaware Supreme Court Selection: Chancellor Leo Strine

Most of the country's publicly traded companies choose to incorporate in, and thus be governed by the law of, a tiny state--Delaware.  Is it a coincidence that the final word on this state's law is a supreme court chosen by the "federal model" of executive nomination and then confirmation by the senate?  I argue this is a better system than judicial elections or a bar-favoring nominating commission.

For the current vacancy, Delaware’s governor nominated Leo Strine, chief judge of the state’s prestigious business court, the Delaware Court of Chancery.  Delaware Online writes "Strine has built a national reputation for having a brilliant legal mind. His legal analyses of corporate law matters have been widely praised.  If confirmed, as expected, by the Delaware Senate later this month, Strine could bring his spontaneity to a court some have characterized as 'formal,' observers say."

 

US Supreme Court Selection Process is Functioning Just Fine

The US Supreme Court selection process is functioning just fine, argues a new article by University of Georgia Law Professor Lori Ringhand and University of North Texas Professor Paul Collins.  The selection process "provides democratic validation of previously contested constitutional choices made by the Supreme Court; it provides a public forum in which electorally accountable actors argue about what should and should not be considered part of our constitutional consensus; and it provides an opportunity for dialogue between the Court, the Senate, and the public.  Each of these features of the current system work to ensure that the long-term constitutional preferences of the people are, over time, embraced by the Court as part of our core constitutional understanding."  Well said.

Supreme Court Confirmation Hearings and Constitutional Change, written by Collins and Ringhand is available here.

 

Bill to Change Vermont Judicial Selection

Vermont judges are selected in three steps:
1. A nominating commission (the Judicial Nominating Board) takes applicants and sends a list of finalists to the governor.
2. The governor picks one.
3. The state senate votes whether to confirm the nominee.

I call this senate confirmation system and like the fact that the judicial branch is selected by the other two. 

Fine to have a nominating commission (the Vermont Judicial Nominating Board) but the important question is who selects it, that is, who picks the pickers?  The Vermont Judicial Nominating Board has 11 members: 2 nonlawyers appointed by governor; house and senate each select 3 members, 2 nonlawyers and 1 lawyer; and 3 lawyers elected by members of bar. 

Overall, this is a democratically-legitimate system except for the 3 lawyers selected by the bar. 

The bill would add more names from which the governor may choose.  As Bill Raftery explains: "Under current law the Judicial Nominating Board can submit as few or as many names as it likes to the governor, but the governor must submit from that list alone. SB 305 would effectively allow the governor to force the Board to produce more names. If the Governor opted not to select a name from the first list created by the Board, a second list would be created from a list of people 'who did not previously apply for that particular vacancy.' The names from the second list plus the names from the first list would then be resubmitted to the governor."