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."

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.

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."

Change to North Carolina Judicial Selection on Ballot

North Carolina voters will at the next election vote on whether to amend their state constitution to change the way judicial vacancies are filled.

Currently, North Carolina judges are elected and mid-term vacancies are filled by the governor until the next election.

The proposal would have nominating commission pass its findings to the legislature which would pick two nominees from which the governor must choose.

Perhaps no coincidence that the governor is a Democrat but Republicans hold majorities in the legislature.

Quick Summaries of Short List for SCT

Brett Kavanaugh, Amy Coney Barrett, et al., are discussed by Richard Wolf and David Jackson in USA Today.

Analysis of Judges Kavanaugh and Barrett along with Judges Thomas Hardiman of the Third Circuit, and Amul Thapar and Raymond Kethledge from the Sixth Circuit, by Adam Feldman at Empirical SCOTUS

Listen to the Case for "Political Appointment" of Judges

Vanderbilt Law Professor Brian Fitzpatrick and University of Kansas Law Professor Stephen Ware discuss what Prof. Fitzpatrick's recent paper calls "political appointment" as the best way to select state judges.

The Case for "Political Appointment" of Judges

Vanderbilt Law Professor Brian Fitzpatrick authored a new paper arguing for what he calls "political appointment" as the best way to select state judges.

Prof. Fitzpatrick and I will discuss this paper in a Teleforum this Monday, May
21, 2018, 1:00pm - 2:00pm EDT for the Federalist Society

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.

Tomorrow's Election for Wisconsin Supreme Court includes National Money for Democratic Candidate

Democrats "aim to turn a race for state Supreme Court into the next nationalized race," according to Politico. President Obama’s attorney general, Eric Holder, is backing Rebecca Dallet, a Milwaukee County circuit court judge. The National Democratic Redistricting Committee, according to Politico,  has invested $140,000 in a digital ad program promoting Dallet, whose opponent is Judge Michael Screnock.

The Wisconsin State Journal reports on the race's final debate 

Federal Judicial Confirmation Votes Getting Closer

Senate confirmation votes on federal judges are getting closer over the last few decades reports John Gramlich for the Pew Research Center.

Ohio Supreme Court Appointment Makes Court All Republican

Ohio Gov. John Kasich named Judge Mary DeGenaro to complete the 11 months left in the term of  Justice William O’Neill, a Democrat, who is running for governor.

According to the Toledo Blade, this will mean each member of the Ohio Supreme Court is a Republican.

The Case for Partisan Judicial Elections

Professor Chris Bonneau of the University of Pittsburgh ably makes the case for partisan judicial elections.

Judicial Election Campaign Funding

Who Pays for Judicial Races? The Politics of Judicial Elections is a report by Alicia Bannon of the Brennan Center for Justice. The report includes statistics on judicial campaign finance and is written from the Brennan Center's progressive perspective that opposes judicial elections.

"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.

"Blue Slip" Power to Stop Judge Nominees Weakens

The "blue slip" tradition allows a home-state senator to stop a president's nominee for the federal bench by the senator refusing to return a sheet of paper, known as a blue slip, to the Judiciary Committee.

Nevertheless, current Judiciary Chair Grassley said from the Senate floor “the Judiciary Committee will hold a hearing for two circuit court nominees, each of whom has one home state senator who has not returned a blue slip containing a positive endorsement.” He has scheduled Nov. 29 hearings for David Stras, Trump’s nomination to be an appellate judge on the 8th Circuit, and for Kyle Duncan, nominated to serve the 5th Circuit.

According to the Hill, “A blue slip policy allowing a single senator to block a nominee from even receiving Committee consideration is a more extreme example of a counter-majoritarian practice,” said a memo released earlier this month by Grassley’s staff.

Politico quotes Grassley: “The Democrats seriously regret that they abolished the filibuster, as I warned them they would, but they can’t expect to use the blue slip courtesy in its place. That’s not what the blue slip is meant for.”