With Tennessee’s August 7 judicial retention elections just over two weeks away, the TV ad war is escalating. According to the latest figures, the Tennessee Forum has spent nearly $120,000 on an anti-retention TV ad, while campaigns supporting the justices’ retention have spent just over $200,000 on television advertising.
In recent years, I have been distressed to see persistent efforts in some states to politicize the bench and the role of our judges. Working closely with IAALS and its Quality Judges Initiative, we have collaborated to promote processes for selecting and retaining state judges that inspire public trust in our courts and the integrity of their decisions. Today, I am pleased to share with you the O’Connor Judicial Selection Plan—our recommendations for protecting and strengthening the courts.
Why do you obey the law? Because you are afraid of the consequences if you don’t? Or perhaps because it is the right thing to do? How about, because you believe that “government has the right to dictate to [you] proper behavior”? The third option—believing that government’s laws and legal process have legitimacy—may be the keystone to building the most effective legal system.
The Colorado Supreme Court has rejected a proposed initiative intended for the November 2014 ballot that would amend the state constitution to allow voter recall of judges. Two other proposed ballot initiatives aimed at courts and judges are still alive. Eight states currently allow voters to recall judges.
Recent national media coverage paints a highly positive picture of the current pace of federal judicial nominations and confirmations. After all, 2014 has seen 50 confirmations so far, compared to 43 in all of 2013 and 48 in 2012. Not so fast, says Russell Wheeler, an IAALS Board Member and Visiting Fellow at the Brookings Institution. The outlook has improved, but according to Wheeler, a case can be made for a more cautious assessment.
Developed as part of the “Informed Voters – Fair Judges” project, a voter education effort led by the National Association of Women Judges, a short film featuring retired U.S. Supreme Court Justice Sandra Day O’Connor has received an Emmy Award in the Public Service Announcement category from the National Capital Chesapeake Bay Chapter of the National Academy of Television Arts and Sciences.
A federal judge has upheld the unusual system that Ohio uses to elect its judges, which features partisan primary elections and a nonpartisan general election. The challenge to the Ohio system was first filed in 2010 by the Ohio Democratic Party, three judicial candidates, and a public employees union, who claimed that not allowing judicial candidates to run with party labels violated their First Amendment rights.
Ending months of speculation, Governor Chris Christie re-nominated Chief Justice Stuart Rabner to the New Jersey Supreme Court. The move was part of a political compromise with senate leadership, which agreed in exchange to support the nomination of a Christie ally to the supreme court. The deal between Governor Christie, a Republican, and Democrats in the senate will fill one of two seats on a court that has had two vacancies since early 2012.
As the burgeoning campaign in opposition to the retention of the three Tennessee justices continues, those justices are responding with their own campaign. They recently gave an interview to a local news outlet in which they discussed the threat that the retention challenge poses to judicial independence. The Tennessee and Nashville bar associations have both entered the fray as well.
Late last week, the U.S. Court of Appeals for the Ninth Circuit struck down a handful of provisions in Arizona’s code of judicial conduct as they apply to the campaign behavior of judicial candidates. According to the court, “[t]o the extent states wish to avoid a politicized judiciary, they can choose to do so by not electing judges.”
Speaker of the House and Lieutenant Governor Ron Ramsey, a Republican, is leading the charge against three supreme court justices standing for retention in August. (All appellate judges in Tennessee stand for retention at the same time every eight years, but two justices on the five-member court are retiring this summer.)
Judicial independence is like freedom in that it is often taken for granted, and always at risk. Simply stated, judicial independence means that one branch of government is not subject to the will of the majority. That independent branch is charged with upholding the Constitution, even in the face of contrary majority will, and with protecting the rights of those not in power. What happens when judicial independence is threatened? We have a current all-too-disturbing example.
With many state legislatures around the country wrapping up their 2014 sessions, IAALS Online offers this update on the progress of measures related to the selection and tenure of state judges. Developments in: Alabama, Alaska, Florida, Louisiana, Minnesota, and Oklahoma.
Inter-branch tensions in Oklahoma have escalated in recent days over the state supreme court’s handling of a death penalty appeal. A member of Oklahoma’s house of representatives filed articles of impeachment against five supreme court justices who voted to stay the execution of two death row inmates. Tension was already brewing between the legislature and the high court over a 2013 decision that struck down a comprehensive lawsuit reform measure.
Last week, the Alabama legislature passed a new law that addresses judicial disqualification in cases involving campaign contributors. The state is an ideal target for recusal reform. From 2000-2009, Alabama ranked first in the nation in campaign fundraising and spending for state supreme court races. The 2006 cycle alone saw $14.5 million in contributions and expenditures.
Another voice has joined a growing chorus calling for more openness in the selection and evaluation of Hawaii’s state court judges. Critics of the lack of transparency make some valid points about the need to shine more light on these vital processes, particularly when we consider how other states address this issue.
Four of the seven seats on the North Carolina Supreme Court are on the ballot in November. The current ideological balance on the court is 4-3, with a Republican majority, and three of the four seats up for election are currently held by Democrats. Commentators anticipate millions of dollars in special interest spending in the coming months.
With state legislatures in session around the country and considering bills that would impact the selection and tenure of state judges, IAALS Online provides this summary of where things stand at the end of March. Developments in: Alaska, Florida, Hawaii, Minnesota, Oklahoma, Tennessee, Utah, and Washington.
The Wyoming Trial Lawyers Association dedicated its Winter 2014 publication to the Judiciary. As part of the WTLA’s review of the bench, IAALS Executive Director Rebecca Love Kourlis wrote an article about one way that Wyoming can enhance its selection and retention process, by conducting judicial performance evaluations.
Rhode Island’s judicial nominating commission met recently to discuss potential improvements to the commission’s work. Much of the discussion focused on the transparency of the process. The governor has allotted $7,500 to hire an expert to advise the commission on its procedures, with any proposed changes subject to a public hearing process.
The terms of three members of Florida’s seven-member supreme court are set to expire at the same time that the next Florida governor’s term expires—on January 8, 2019. Recognizing that state law is unclear as to whether the outgoing or incoming governor has the authority to fill judicial vacancies that occur on inauguration day, a Republican senator has offered a proposed constitutional amendment that would empower the outgoing governor to make these appointments.
The Kansas Supreme Court’s long-awaited school funding decision may prevent an all-out legislative assault on the state’s courts. On March 7, the high court ruled that funding disparities among the state’s school districts violate the state constitution. According to Kansas’ attorney general, the court adopted a middle ground.
Texas’ Republican primary elections on March 4 have brought together an unusual combination of candidates and campaign contributors, at least with respect to the state’s highest court. The incumbent Republican justices have received support from a typical source—advocates of tort reform and limitations on civil lawsuits—but their Republican challengers are benefiting from donations by trial attorneys and left-of-center groups, who historically have backed Democratic candidates.
Republican state legislators have proposed a bill that would increase the size of, and allow the governor to appoint a majority of members to, the Alaska Judicial Council. The AJC serves as both the judicial nominating commission and the judicial performance evaluation commission. Under the new bill, the AJC would be expanded to 16 members, and the change would require amending the constitution.