The cascade effects of federal judicial nominations

Today, the Senate Judiciary Committee will consider a number of President Trump’s judicial nominees, including current Idaho state judge David Nye. In related news, the President has nominated Colorado Supreme Court Justice Allison Eid to the Tenth Circuit seat previously held by Neil Gorsuch.

Assuming that Nye and Eid are eventually confirmed by the Senate, their current state seats will become open, and will be filled by their respective state governors from a list provided by a nominating commission. (One interesting twist is that Colorado Governor John Hickenlooper, a Democrat, would be given his fourth appointment to the state supreme court, replacing a more conservative justice with presumably a more liberal one.)

The new judges in Colorado and Idaho will both serve a short, interim term before facing the voters. But the way in which they will face the voters is quite different, and highlights challenges that some states face in attracting qualified candidates for the state bench.

Colorado has a merit selection system for state judges, meaning that Justice Eid’s successor will serve a roughly two-year term before facing a retention election. In a retention election, a judge runs unopposed, and voters simply determine whether the judge should remain on the court or not. Colorado voters will be assisted by a detailed judicial performance evaluation of the judge, focusing on politically neutral criteria such as judicial temperament, clarity of communication, and impartiality.

Idaho’s judges, by contrast, face periodic nonpartisan elections. This means that a newly appointed judge can be opposed on the ballot, and may have to campaign to keep his or her seat. Idaho has no judicial performance evaluation (JPE) program, so voters do not have a neutral, official source for information on the judge’s competence or quality. And while the elections are ostensibly nonpartisan (in that the candidate’s party affiliation does not appear on the ballot), there is nothing to stop outside groups from endorsing the candidate or otherwise making clear which political party favors his or her candidacy.

There is no guarantee that an Idaho judge will be swept up in a bitter and expensive election campaign, or even that another candidate will surface.  Many state judges run unopposed for reelection on a regular basis.  But the possibility of a more politicized campaign, and the likelihood of more low-information voters (owing to the absence of a JPE program) at least marginally increases the chance that a new judge in Idaho will be removed by the voters sooner than a new judge in Colorado.

This possibility has discernible effects on the state’s ability to attract high-quality candidates for judicial service.  Federal nominees know that, if confirmed, they will have life tenure. Colorado’s attorneys know that, while they would face periodic retention elections as judges, the uncontested nature of those elections and the existence of a JPE program would increase the chances that they would be retained if they are doing a good job. Idaho attorneys, however, are less secure: they could leave a practice, hand over their clients, and within two years be off the bench and looking to start over.

The election problem is hardly unique to Idaho, and the security of Colorado’s system is not always assured, but the dichotomy between the two systems is clearly on display today.

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