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

Women and People of Color on State Supreme Courts

Laila Robbins and Alicia Bannon of the progressive Brennan Center find:

"people of color have consistently made up a higher proportion of appointed, as compared with elected, first-time supreme court justices. Incumbent justices of color have also is proportionately
been challenged and lost elections once on the bench, as compared with incumbent white justices.
By contrast, by most measures, women have fared similarly under both elective and appointive methods"

Their full paper is available free of charge

New Book on Judicial "Merit Selection" Nominating Commissions

"Judicial Merit Selection: Institutional Design and Performance for State Courts" is a new book by Greg Goelzhauser, a Political Science Professor at Utah State University.

The publisher, Temple University Press writes: "In Judicial Merit Selection, Greg Goelzhauser amasses a wealth of data to examine merit selection’s institutional performance from an internal perspective. While his previous book, Choosing State Supreme Court Justices, compares outcomes across selection mechanisms, here he delves into what makes merit selection unique—its use of nominating commissions to winnow applicants prior to gubernatorial appointment."

"Massive Changes" to North Carolina Judicial Selection?

A special committee of the North Carolina Senate is "looking at whether to propose massive changes to the state's judiciary" according to the Associated Press.

North Carolina judicial elections have been controversial and some testimony "backed altering the state's current method of selecting judges, offering options to legislators focusing more on appointments and confirmations and less on current head-to-head elections."

University of North Carolina law school dean Martin Brinkley said "he personally backs a method mimicking the selection of federal judges — executive branch nominations then subject to legislative confirmation."   I agree.

Proposal to End Elections of Illinois Appellate and Supreme Court Justices

Peter Alexander and George M. Vineyard argue for what they call "merit selection."

The abstract says:

"The authors’ thesis is that voters either are so uninformed or have been so misled about what Illinois appellate and supreme court justices do that the voters are not in the best position to select justices to the two reviewing courts. To support their analysis, the authors conducted a survey of Illinois registered voters to determine exactly what they know about the qualifications and job duties of Illinois' highest two courts."

Partisan Judging Data by Joanna Shepherd and Michael Kang

The progressive American Constitution Society released a study finding judges tend to rule for members of their own party in deciding election disputes, and these effects are exacerbated by campaign donations. The report by Emory Law professors Joanna Shepherd and Michael Kang finds that “[j]udicial partisanship in election cases increases, and elected judges become more likely to favor their own party, as party campaign-finance contributions increase.” The authors also highlight that “[t]his influence of campaign money largely disappears for lame-duck judges without re-election to worry about.”

Another progressive organization, the Brennan Center, emphasizes two quotes from the study:

(1) “[i]f judges are influenced, consciously or not, by party loyalty in election cases, they are likely tempted to do so in other types of cases as well.”

(2) “reformers have advocated, among other things, public financing of state judicial campaigns; term limits for state judges; and various merit selection, judicial evaluation, and disciplinary systems,” and this study “bolster[s] the case for judicial selection reform.”

This study is valuable in providing data on the extent to which judges' politics matter to their rulings. However, progressives often err in thinking something like "elected judges are especially political so we should reduce the influence of judicial campaign money or, even better, replace judicial elections with merit selection." This is deeply wrong in several ways.

To some extent, judges should be political. Judges makes law. Lawmaking is part of their jobs, and has been for centuries, especially for high court judges. Lawmakers should, in a democratic society, be selected democratically. "Merit selection" is usually a euphemism for a method of judicial selection that violates the basic principle of democratic equality--the rule of one-person, one vote--by making a lawyer's vote worth more than another citizen's vote. "Merit selection" is a propaganda term for the nominating commission often known more-neutrally as the Missouri Plan. These commission systems often compound their violation of democratic equality by operating in secret so the commission's key vote is hidden from the public and accountability. Finally, Missouri Plan systems usually retain the problems of judicial elections because they usually subject sitting judges to retention elections.

Rather than the anti-democratic, secrecy, and campaign-contribution problems of the Missouri Plan, states should replace judicial elections with a judicial selection appointment process modeled on that found in the US Constitution. In about a dozen states governors nominate judges and they are confirmed by the senate or other popularly-elected body. This judicial appointment process selects judges with a form of indirect democracy, better for the rule of law than the direct democracy of electing judges.

As to judicial retention, the US Constitution gives federal judges job security which strengthens judicial independence compared to requiring judges to win elections to keep their jobs. States don't have to go as far in the direction of judicial independence as life tenure, as a long non-renewable term (say 14 or 20 years) would probably work about as well.  

Alaska Judicial Selection - Similar Debate to Kansas and Other "Missouri Plan" States

Alaska is one of 9 states that violates basic democratic equality in selecting its supreme court. As in the other 8 states, the insiders with disproportionate power in Alaska judicial selection defend their special powers by arguing they help ensure judges are selected on the basis of merit rather than politics. Sen. Pete Kelly, a Republican from Fairbanks, introduced a bill to reduce the extent to which Alaska Supreme Court selection violates basic democratic equality by giving special powers to the bar.

Unconstitutional Judicial Selection in Indiana?

The Indy Star reports that a federal court ruled the state law governing how judges are elected in Marion County is unconstitutional.  Apparently, the Republican and Democratic parties each nominate half of the candidates eligible to sit on the court so candidates appearing on the general election ballot are almost sure of victory.

Unfortunately, the only alternative to this system discussed in the article is the Missouri Plan, which the article uncritically calls "merit selection."

Judicial Nominating Commissions

Some of the most thoughtful advocates of judicial nominating commissions are affiliated with IAALS, the Institute for the Advancement of the American Legal System, at the University of Denver.  Their report, by Malia Reddick & Rebecca Love Kourlis is on this page which says:

"A commission-based gubernatorial appointment process can offer important benefits to the state judiciary that these other methods may not. First and foremost, those who aspire to be judges need not have political connections, a campaign war chest, or the support of special interests to apply. Rather, the process can create an environment in which the selection decision focuses on candidates’ experience, character, and qualifications, motivating highly qualified candidates to apply. This, in turn, can inspire trust and confidence in the selection process and in the judiciary as a whole among members of the public and the other two branches of government. But the extent to which commission-based appointment achieves these ideals is dependent wholly upon how the commission is chosen and how it functions."

While I agree with this to some extent, I think a lot turns on how one defines "political connections." For instance, if the bar selects some members of the commission and a candidate's connections within the bar help that candidate win the support of the commission, do we call that use of "political connections"?  A question for advocates of nominating commissions is whether a candidate using connections within the bar is somehow more legitimate or less "political" than using connections with democratically-elected officials.

Separately, I note that the paragraph just quoted speaks of judging in technocratic terms "experience, character, and qualifications."  Omitted from this is any mention of the lawmaking role of judges, particularly state supreme court justices.  Another question for advocates of nominating commissions is whether they see high court judges as important lawmakers.

Arkansas Judicial Selection

Discussed here by Bill Raftery.  He provides good information but I wish he'd drop the advocacy phrase "merit selection" for commission based (or "Missouri Plan") selection processes.

Oklahoma Judicial Selection Reform Criticized

Tulsa World

The Tulsa World's Julie DelCour defends status quo against a bill that would remove the bar's power to pick members of the Judicial Nominating Commission: 

"All JNC members would become political appointees of the governor, the speaker of House and president pro tem of the Senate, essentially placing judges into a patronage system.

Removing lawyers, who are elected to the JNC by their peers in the Oklahoma Bar Association from each congressional district, makes absolutely no sense and creates a politically imbalanced panel."

I disagree with this for reasons articulated here and here
In Oklahoma, as in Missouri and Kansas, the issue basically comes down to bar politics vs. democratic politics.

Oklahoma Senate Passes Bill to Reduce Bar's Role on Nominating Commission

SB 1988 as Bill Raftery summarizes would "vacate all current judicial nomination commission members selected by Oklahoma State bar" and end "the Oklahoma Bar’s power to name any future attorney members to judicial nominating commissions and provides instead the House and Senate leaders are to name the attorney members."  Sounds like a bill to bring democratic legitimacy to the nominating commission process often called Missouri Plan or merit selection.  Unsurprisingly, the bar is opposed to a reduction in its power:  "Reforms are not needed for a system attorneys and judges said is not broken."

Florida, Minnesota and Alaska Judicial Selection Bills

These various bills summarized by Bill Raftery seem generally to fit a pattern of Red State Republicans pushing for more democratic judicial selection methods while Blue State Democrats push for more lawyer-controlled judicial selection methods.

Pennsylvania Judicial Retention

Judges in Pennsylvania are elected to vacant seats in partisan elections, but then stand for periodic nonpartisan retention elections.

Pennsylvania Representative Ted Harhai (D) introduced a bill last week that would require judicial retention election ballots to list the party affiliations of judges. "His legislation is a less radical move than separate bills ... that seek to eliminate initial judicial elections — while still preserving retention elections — for statewide judges. The backers of these bills claim that merit selection, rather than added transparency in elections, is key to boosting the public’s trust." according to Law360. 

Former Iowa Supreme Court Justice Decries Judicial Politics

Marsha Ternus writes "In 2010, Iowa voters removed two colleagues and me from the court in a retention (yes-or-no) election. Well-funded out-of-state groups and other critics fueled the ouster drive, decrying a unanimous 2009 court ruling. That decision held an Iowa statute denying civil marriage — and the benefits flowing from that status — to same-sex couples violated their right to equal protection under the Iowa Constitution."  She opposes partisan judicial elections and supports what she calls "merit selection" saying:  "I continue to believe that judicial merit selection systems like Iowa's, incorporating a nonpartisan screening commission and gubernatorial appointment, offer the best defense against politicized courts."  Of course the devil is in the details of who selects members of the commission, that is, who picks the pickers. 

I address Iowa Supreme Court selection and the same-sex marriage case here in a video of a Federalist Society panel in Des Moines.

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.

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."

Tennessee Supreme Court Vacancy Attracts Few Applicants

Tennessee currently has a Missouri Plan system in which a 17-member nominating commission sends finalists names to the governor who then picks the next justice on the state supreme court. 

Only five people applied for the currently-vacant position and the Governor’s Commission on Judicial Appointments identified three finalists. Gov. Bill Haslam will select the next justice.

The Tennessee legislature approved a proposed constitutional amendment to select its supreme court through a federal model system of  gubernatorial appointment subject to legislative confirmation.
In November 2014, the states voters will decide whether to adopt this amendment, which has the support of the Tennessee Bar Association.

Push to Change Minnesota Judicial Selection

Minnesota judicial elections have given us important and interesting developments from the US Supreme Court case of Republican Party v. White to the election of Hall of Fame football player Alan Page to the Minnesota Supreme Court.

A push to move away from contestable elections to a Missouri Plan system is being led by the Coalition for Impartial Justice.  The proposed constitutional amendment is here.  Justice at Stake comments here.

Texas Judicial Elections Criticized by Newspaper

TheAustin American-Statesman editorializes: “The partisan election of judges is one of the more negative facets of state government, and for decades there have been attempts to change Texas’ judicial election system. We long have supported efforts to take party politics out of judicial elections and to reduce the effect of campaign money on the state’s courts.”

It goes on “Texas is one of only a handful of states that hold partisan judicial elections. Several potential reforms have been explored …..  A perennial and favored proposal is to appoint judges based on merit and then to require them to go before voters a few years later in a nonpartisan, yes-or-no retention election.”  Of course, the devil is in the detail of who gets to “appoint judges based on merit” when reasonable people disagree about which potential judges are more meritorious.