Senate Confirmation of Judges Advances in Oklahoma

The Oklahoma Senate approved a bill that would bring senate confirmation of judicial nominees to the state and reduce the Judicial Nominating Commission to issuing an advisory rating of “qualified” or “not qualified.”

As the Daily Ardmoreite explains, "the JNC consists of six attorneys selected by the Oklahoma Bar Association, six commissioners appointed by the governor, one commissioner appointed by the Senate President Pro Tem, and one commissioner appointed by the House Speaker. The remaining commissioner is selected by the other members of the JNC."

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.”

British Judicial Selection

“Searching for Constitutional Meaning in InstitutionalDesign: The Debate Over Judicial Appointments in the United Kingdom,” by Northwestern University Law Professor Erin F. Delaney. 

The abstract:    

The United Kingdom is undergoing a period of dramatic constitutional change. A spate of reforms ushered in by the Blair government at the turn of the twenty-first century challenged conventional notions of British governance and constitutional structure. In the shadow of these changes, one new and bedeviling institutional task is to reconcile an independent judicial branch, growing in power, with a system of parliamentary sovereignty. This article will analyze the debate over judicial appointments in order to shed light on the position of the modern British judiciary, and the new U.K. Supreme Court in particular, within the British constitutional system. Questions of institutional design expose deep divisions over the perceived extent of judicial power, the relationship of the judiciary to Parliament, and the constitutional justifications for diversity on the bench. Although a weak consensus was achieved in the Crime & Courts Act 2013, stability in the appointments regime is likely temporary. The contested nature of the modern British constitutional system will ensure ongoing debate.

In Britain, Delaney writes, "safeguards protecting judges’ impartiality were developed in parallel with the doctrine of parliamentary sovereignty, so that an 'independent judiciary' was understood as
comprising independent individual judges, rather than seen as a separate and independent
branch. (Indeed, the highest judicial body was a committee of the upper house of
parliament, and the Lord Chancellor, empowered to appoint judges, was at once head of the
judiciary, a member of the Prime Minister’s Cabinet, and the presiding officer of the House
of Lords.)"

Delaney writes “the Constitutional Reform Act (2005) [CRA] was heralded as a ‘milestone’ in the separation of powers and a ‘major step forward’ in judicial independence. It included three major changes. First, it created the UK Supreme Court, which, in its own building on Parliament Square, provided a physical demonstration of the new separation between the legislative and judicial branches. To ensure stability, the Lords of Appeal in Ordinary—the Law Lords—were retitled as the initial twelve Supreme Court Justices. Second, the Act dramatically altered the role of the Lord Chancellor, removing his legislative and judicial duties. And, finally, the CRA included various new appointments mechanisms designed to cabin the Executive’s discretion, including the creation of the Judicial Appointments Commission for England and Wales and a selection commission for Supreme Court appointments.”

More on the Commission

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.

Retention Elections Unconstitutional in North Carolina

A 2015 North Carolina statute tried to change judicial retention from contestable elections (2 or more candidates) to retention elections (yes or no vote on retaining the incumbent). As the News & Observer puts it, the "law gives most sitting justices the option to be re-elected to additional eight-year terms without head-to-head matchups with challengers. Instead, the justice can choose to be elected in an up-or-down vote." The Superior Court held this unconstitutional.

Read more here: http://www.newsobserver.com/news/state/north-carolina/article61153192.html#storylink=cpy

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

South Carolina Supreme Court Selection

South Carolina is one of only two states (along with Virginia) in which the legislature selects the supreme court.  In contrast to South Carolina, judges in many states (like federal judges) are appointed in a process that requires the consent of both the other two branches: legislative and executive.  Separation of powers.

Selection of a state Supreme Court justice by the SC General Assembly (legislature) begins with the state constitution which provides that "the General Assembly by law shall establish a Judicial Merit Selection Commission to consider the qualifications and fitness of candidates for all judicial positions on these courts and on other courts of this State which are filled by election of the General Assembly. The General Assembly must elect the judges and justices from among the nominees of the commission to fill a vacancy on these courts. No person may be elected to these judicial positions unless he or she has been found qualified by the commission...."

Now three candidates have cleared screening by the Judicial Standards Commission and are campaigning among legislators. As The State reports, "The election is on Feb. 3 at noon, when the 169 senators and representatives will gather in the House of Representatives. A winning candidate must have 85 votes – one-half of the 169 senators and representatives plus one – to win. A senator’s vote counts as much as a representative’s."

Read more here: http://www.thestate.com/news/local/article56203735.html#storylink=cpy

More on South Carolina judicial selection here.

North Carolina Supreme Court Switches to Retention Elections

North Carolina judges are initially selected in contestable elections and most must prevail in contestable elections to win another term of office. But a new law allows NC Supreme Court justices to secure another term by merely winning a retention election, in which voters choose whether or not to retain the justice but there is no opposing candidate. Nationally, judges nearly always win retention elections.

Judges' Impose Tougher Sentences When Nearing Re-Election or Retention Vote

"Judges are more likely to hand out harsh sentences, including death, the closer they get to a re-election or retention election campaign," concludes Kate Berry of the Brennan Center.

Her study, How Judicial Elections Impact Criminal Cases, "looked at 10 empirical studies examining whether and how judicial elections impact criminal justice outcomes. These studies, conducted across states, court levels, and type of elections, all found that proximity to re-election made judges more likely to impose longer sentences, affirm death sentences, and even override sentences of life imprisonment to impose the death penalty."

Judges' Ideologies

Empirical study by Emory law professor Jonathan Remy Nash uses median prison sentence length imposed by a federal trial judge as a proxy for the judge's ideology and "finds no evidence that senatorial ideology has a statistically significant effect" but finds that "the nominating president's ideology does have a statistically significant effect."

Rhode Island Judicial Selection

The Providence Journal reports dealmaking between the governor and legislature on judicial nominations.

Rhode Island gives its judges life tenure.

I think electing judges is much more problematic than appointment of judges by the executive and legislative branches. I don't think I'd want a constitutional restriction on governors nominating legislators. Particularly on a multi-judge appellate court, a recent ex-legislator or two might be healthy diversity. Deal-making in judicial appointments seems to me generally realistic and positive in a well-functioning separation of powers, as opposed to the naive idea that for each judicial vacancy there will usually be one judicial candidate who is clearly the most meritorious in some objective sense. 

Democrats Win Penn. Supreme Court With Money From Unions and Trial Lawyers

The Daily Call reports two of three open seats "were open because of the resignations of disgraced former justices: in 2013, a Republican convicted of using her taxpayer-paid staff to do political work and, in 2014, a Democrat implicated in the porn email scandal. The other seat became vacant when former Chief Justice Ronald Castille was forced to step down last year after reaching the mandatory retirement age of 70."

All three seats on the Pennsylvania Supreme Court went to Democrats after six years Republicans  controlling the court. "The Democratic takeover was fueled by cash provided largely by organized labor and Philadelphia trial lawyers to help sustain TV advertising. Of the record $11.5 million contributed to the seven candidates, Democrats raised three times as much as the Republicans." The Daily Call reports.

The Atlantic's Tyler Bishop bemoans the Pennsylvania Supreme Court's politicization and scandal, but points out "allowing citizens to directly elect judges makes the process more democratic, allows people to engage key issues before the court, and holds judges accountable for their interpretations of the law."

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.