In remarks at last week’s annual conference of the state bar association, Justice Barry Albin encouraged members of the legal profession and the public to defend New Jersey’s courts against attacks by the other two branches based on dissatisfaction with court decisions. He went on to suggest that the governor and the legislature have injected politics into the judicial appointment process.
It has been an eventful week judicial selection-wise in the Kansas legislature. On Monday, the chairman of the senate judiciary committee announced the details of a compromise selection reform proposal for the state’s appellate judges, which the Kansas Bar Association’s board of governors rejected on Tuesday. And on Wednesday, the house judiciary committee chair introduced three new proposals aimed at the appellate court.
As a former Chief Justice of the New Hampshire Supreme Court and a current member of the IAALS Board of Advisors, I commend Governor Maggie Hassan for her wisdom in establishing the Judicial Selection Commission to advise her in filling vacancies on our state’s courts. Such a commission ensures that political considerations take a back seat to qualifications, experience, and judicial potential in selecting judges.
In a recent speech to the Ohio State Bar Association, Chief Justice Maureen O’Connor identified eight areas in which the state’s process for electing judges might be improved. Among the reforms that O’Connor put on the table were the creation of a nominating commission to advise the governor in filling judicial vacancies between elections. O’Connor encourages public discussion of the reform proposals through a new website.
With Justice Joan Orie Melvin’s resignation from the Pennsylvania Supreme Court on May 1, Governor Tom Corbett has ninety days to fill the vacancy. Last month, Senate Democrats sent Governor Corbett—a Republican—the names of five Republicans whose appointment they would support.
Taking some lawmakers by surprise, prominent Republicans in the house and senate announced that they will continue their pursuit of a constitutional change to the process for selecting supreme court and court of appeals judges in the final days of this legislative session.
The Tennessee legislature ended its 2013 session without renewing the state’s judicial nominating commission, which screens applicants for appellate court vacancies and recommends the best qualified candidates to the governor for appointment. The commission expires on June 30, and as of July 1, there will be no process in place for filling vacancies on the supreme court, court of appeals, and court of criminal appeals.
A recent study by IAALS board member Russell Wheeler analyzes the politics behind the high number of judicial vacancies without nominees. Wheeler examines judicial nominations during the Obama administration and hypothesizes that delays from the White House, combined with tensions between the political parties, are responsible for the high number of long-lasting, nominee-less judicial vacancies and to the longer periods between vacancy and nomination.
Governor Maggie Hassan signed an executive order establishing a judicial selection commission to advise her in filling vacancies on the state’s courts. Hassan is the third New Hampshire governor to create such an entity. The first was Governor Jeanne Shaheen in 2000, a response at least in part to the impeachment of a supreme court justice.
A group of Republican members of the house of representatives have proposed cutting the pay of the four remaining Iowa Supreme Court justices who participated in Varnum v. Brien, a unanimous 2009 ruling that struck down a state law banning same-sex marriages.
Senators Ron Johnson (R) and Tammy Baldwin (D) have agreed to a restructuring of the commission that has been used in Wisconsin since 1979 to advise senators in recommending potential candidates for federal judge and prosecutor vacancies in the state. They have agreed to share the appointment authority equally, with each appointing three to a six-member commission.
Malia Reddick, Director of the Quality Judges Initiative at IAALS, was recently interviewed about the Minnesota Bar’s judicial selection policy, which may or may not be retained this summer. Reddick says that Minnesota’s system is good, and could be even better by strengthening it against against the intrusion of politics, special interests, and money. A system that emphasizes a judge’s qualifications, rather than how much money a judge can raise to get elected or their personal positions on hot-button issues, creates a more stable, open, and impartial judiciary.
Socially conservative legislators in Alaska have proposed a bill that would remove the judicial council’s authority to make recommendations regarding judges standing for retention. In Tennessee, legislators have proposed a bill that would allow them to reconstitute the nine-member performance evaluation commission with no judge members. It would also authorize the commission to rewrite existing evaluative criteria and to prevent judges who receive a recommendation “for replacement” from standing for retention.
Arizona governor Jan Brewer signed a bill calling for the state’s judicial nominating commissions to submit at least five names for each judicial vacancy. As IAALS Online reported last month, some question the constitutionality of the bill, since the state constitution allows commissions to send a minimum of three names to the governor.
Legislatures in 17 states are considering whether to increase or eliminate their mandatory retirement age for judges. Mandatory retirement ages for state judges around the country range from 70 to 75. Pennsylvania’s supreme court recently agreed to hear a case challenging that state’s maximum age of 70 as discriminatory and in violation of the state constitution.
Public financing of judicial elections is currently seeing a mixed reception in a handful of states. North Carolina is considering discontinuing the public financing program for appellate races that the legislature established in 2002, while in Kentucky, the house of representatives has approved a bill establishing public financing for supreme court campaigns. Other states include West Virginia, New Mexico, and Wisconsin.
Facing sentencing for a corruption conviction and a house resolution calling for her impeachment, Justice Joan Orie Melvin announced her resignation, effective May 1. Supporters of judicial selection reform are optimistic that these developments will lend momentum to efforts to move to merit selection of the state’s appellate judges.
Four former Pennsylvania governors, including two Democrats and two Republicans, joined together in expressing support for a proposal to change the way the state’s appellate judges are selected. A bill introduced in the senate in January calls for appellate judges to be chosen through a merit selection process rather than in partisan elections.
By a vote of 28-12, the senate gave final approval to a bill that ends the role of the nominating commission in appointing court of appeals judges and requires senate confirmation of such appointments. The house of representatives passed the bill earlier this month. The constitution need not be amended to accomplish the change.
The house of representatives approved with a 78-14 vote a proposed constitutional amendment that would alter the process for selecting Tennessee’s appellate judges. The senate approved the measure 29-2 in February. The legislature also approved the proposal in 2012, so it will be on the ballot in 2014.
Arizona’s house of representatives passed a bill that would increase from three to five the minimum number of candidates a nominating commission sends to the governor for each judicial vacancy. The constitution calls for the commission to submit at least three nominees to the governor.
Responding to a 6-3 supreme court decision that invalidated a legislative initiative requiring a two-thirds vote for tax increases, three Republican senators proposed a bill that would eliminate four justices from the nine-member court, citing the resulting salary savings.
President Obama appears to be making diversity a priority in his judicial appointments. Of the 35 federal judicial nominees awaiting a Senate confirmation vote, 17 are women, 15 are ethnic minorities, and five are openly gay. Of the judges who were confirmed during Obama’s first term, 37 percent were non-white and 42 percent were women. These figures are notably higher than those of his predecessors.
Oklahoma has joined several other states—including Florida, Illinois, Kansas, Minnesota, North Carolina, Pennsylvania, South Dakota, and Tennessee—whose legislatures are considering changes to the process for selecting judges.