Last Tuesday’s Supreme Court argument was the latest chapter in the Court’s struggle to balance electoral candidates’ right to solicit campaign donations against the appearance or actual threat of corruption that arises when litigants or attorneys donate to a judge’s election campaign and later appear before that same judge in court. What all the Justices seemed to agree about—that electing state court judges poses great risk to the legitimacy of the states’ judiciaries—remains beyond their power to remedy.
According to data presented by Russell Wheeler of the Brookings Institution, President Obama has seen a higher judicial confirmation rate (92 percent) after six years in office than did President George W. Bush (84 percent) and President Clinton (89 percent) at this point in their terms. President Obama is also making his mark on the federal courts in terms of diversity. The 305 Obama-nominated judges are the most diverse group ever.
In the upcoming legislative session in a handful of states, lawmakers are expected to propose legislation aimed at courts and judges. Some Washington legislators have filed a bill that would make the state’s judicial elections partisan. Two bills that Wisconsin lawmakers plan to file in 2015 would impact the Chief Justice. And, the Kansas legislature will likely take up a proposed constitutional amendment to change the way supreme court justices are chosen.
Delaware Law Weekly recently published an article discussing how judicial vacancies are filled in Delaware. Specifically, the article focused on the state’s Judicial Nominating Commission (JNC) and whether it is appropriate for members of the JNC to resign and then apply for judicial positions. IAALS’s own Malia Reddick spoke to the problems created by a process where this is allowed.
According to a recent study, Alabama should move from partisan elections of judges to commission-based gubernatorial appointment in order to ensure a stable, predictable, and fair legal system for businesses and promote long-term economic growth. The study explores the correlation between states’ methods for selecting judges and how attorneys perceive judges’ competence and impartiality, as well as other aspects of states’ legal environments.
In a historic 53.78%–46.22% decision, which is already beginning to transform the state’s judiciary in significant ways, Nevada voters elected to create an Intermediate Court of Appeals during the November 2014 election cycle. Nevada has demonstrated that, with right mindedness and well-placed determination on behalf of achieving a high-functioning and efficient legal system, change and progress will eventually prevail.
A recent article in the Denver Bar Association’s The Docket reviewed the dilemma that surrounds how states select and retain judges. In the article, Colorado’s merit selection system is highlighted as a nationally recognized model for ensuring a judiciary that is free from politics, while also affording citizen input. Colorado’s process for choosing judges mirrors the four-part O’Connor Plan, IAALS’ collaboration with Justice Sandra Day O’Connor.
IAALS provides an overview of the 2014 election outcomes that impacted state courts and judges, including a look at ballot measures, contestable elections, and retention elections.
A new study from the American Constitution Society finds a correlation between the airing of TV ads in state supreme court races and justices’ decisions in criminal cases. According to the study, the more ads that air in a state, the more likely justices on the state’s high court are to vote against criminal defendants. The study also documents the effects of the U.S. Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission.
IAALS would like to congratulate Malia Reddick, Consultant to our Quality Judges Initiative, on being named recipient of the National Association of Women Judges’ Award of Appreciation. Malia has been very involved with the NAWJ’s Informed Voters—Fair Judges Project over the years, and is being recognized for her many contributions and overall efforts to advance this important nonpartisan civics education.
The U.S. Supreme Court has agreed to settle a conflict in lower federal and state courts regarding whether judicial candidates may personally solicit campaign contributions. The nation’s highest court has not addressed the First Amendment rights of judicial candidates since 2002. Every state supreme court to address the constitutionality of these restrictions has upheld them, but federal courts of appeals have split on the issue.
Public opinion polls consistently show that voters know very little about judges and judicial candidates on the ballot and wish they had more information. Around the country, judicial branch entities, state bar associations, and other groups are working to change that. In the November judicial elections, voters in many states will have the benefit of objective assessments of the performance of incumbent judges, and in some instances, the qualifications of their challengers.
Earlier this month, Law Week Colorado published an article highlighting IAALS’ report Choosing Judges: Judicial Nominating Commissions and the Selection of Supreme Court Justices. An outgrowth of the O’Connor Judicial Selection Plan, the report examines why judicial nominating commissions are established in the first place, how their structure and operation differ across the nation, and what some of the best practices might be in building public trust in the process.
The outcome of governors’ races in at least two states—Florida and Kansas—will have meaningful implications for those states’ courts. Florida’s next governor could have the opportunity to fill four of seven seats on the supreme court. In Kansas, the gubernatorial candidates have a fundamental area of disagreement involving how state supreme court justices should be chosen.
On August 7, three Tennessee Supreme Court justices withstood a well-funded challenge to their retention on the bench for subsequent terms. Tennesseans are now looking ahead to November 4, when voters will decide whether to adopt a modified federal selection process for the state’s appellate judges. Voters in four other states will also weigh in on proposed constitutional amendments affecting judicial selection and tenure.
IAALS would like to congratulate Kansas Court of Appeals Judge Steve Leben on being named the 2014 recipient of the William H. Rehnquist Award for Judicial Excellence. The National Center for State Courts Rehnquist award is presented annually to a state court judge who embodies judicial excellence, integrity, fairness, and professional ethics. Judge Leben is a close friend of IAALS, and his impact has been felt across much of our work.
We are pleased to announce the release of a new report on the judicial nominating commissions used to select supreme court justices in 30 states and Washington, D.C. With Choosing Judges, we examine why judicial nominating commissions are established in the first place, how their structure and operation differ across the nation, and what some of the best practices might be in building public trust in the process.
New Mexico judges are chosen through a process that is truly unique. Since 1988, judicial vacancies have been filled by commission-based appointment. Appointees then face a partisan election to keep their seats. At the conclusion of their terms, judges stand for retention for subsequent terms. This year, five judges waited until after the filing deadline to announce their retirement, exemplifying what some see as an increasing trend by judges and party leaders to try to influence judicial selections.
Recent events in Arkansas have prompted some state leaders to call for an end to electing judges, in favor of commission-based gubernatorial appointment.
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.