In several states, the two senators collectively create a screening committee to recommend names of local attorneys and state judges to the President for a federal judicial appointment. The committees are not mandatory, and have been used somewhat haphazardly over time, but they do allow senators to provide useful information to the President about qualified individuals for the federal bench. The committees also help lock the senators in when home-state openings arise: by pre-screening a list of possible candidates, the senators are essentially telling the President that they will support any nominee who comes from that list. Such advance agreement avoids the embarrassment that Senator Michael Bennett must have felt earlier this month when, for purely partisan reasons, he had to vote against an extremely well-qualified fellow Coloradan, Neil Gorsuch, for the Supreme Court. Continue reading “Washington’s senators ask President to honor work of their judicial screening committee”
According to this story, a special counsel for Mayor Bill de Blasio has noted the difficulty of finding qualified applicants to fill interim posts on the New York City Civil Court. It’s not hard to see why. Candidates are guaranteed only one year on the bench, after which they must stand for election to keep their positions. But in New York’s byzantine judicial election system, which is largely run by party bosses and was once flatly characterized by Justice Stevens as “stupid,” excellent service on the bench for a year is no guarantee of future employment.
Consider the problem from the perspective of potential applicants. To move to the bench, those in private practice would have to give up their clients, essentially depleting years or decades of work in developing a book of business. It would be professionally negligent, if not career suicide, to allow all your clients to move on in return for a one-year gig on the bench. Potential applicants in the District Attorney’s office or Public Defender’s office might be able to extract themselves a bit more easily, but face similar risks in moving themselves back and forth from the bench. As a result, the pool of potential applicants is likely to contain near-retirees or lawyers without much business than it is high-quality attorneys in their prime.
New York, like other states, could resolve the problem by moving away from judicial elections altogether. Appointed judges would have more confidence in their ability to stay on the bench for a while, given good behavior.
State legislatures continue to propose and advance bills that will impact their respective court systems. Here are some of the latest developments:
- Indiana’s proposal to convert Marion County (Indianapolis) to a merit selection system is heading to conference committee. The latest version of the bill calls for a 14-member nominating committee to choose three final candidates for the governor’s selection; four of the committee members would be chosen from voters. Previous coverage of the Indiana bill and its history is here.
- In Arkansas, a new bill would change the way state judges are elected in Cumberland County Superior Court. The current election system grants seats on the bench to the top two vote-getters among all candidates. The bill would require candidates to declare which of the two judicial seats they are seeking.
- The Florida House of Representatives has passed an amendment to the state constitution that would impose term limits on state appellate judges, including supreme court justices. This is a terrible idea, but happily it is still in its infancy. The state senate would also have to approve the move, and then voters would have to approve it in 2018. Similar efforts in others states have been defeated in recent years after they were exposed for the transparent political proposals that they were.
- Nebraska’s unicameral legislature has advanced a bill to raise judicial pay in the state.
I previously reported on a bill in the North Carolina legislature that would convert the state’s elections for trial judges into partisan races. The practical effect would be that judicial candidates would first have to clear party primaries, and then would appear on the ballot with a party designation.
This was a bad idea, and Governor Roy Cooper has vetoed the bill.
Although Cooper is a Democrat and the North Carolina legislature is controlled by Republicans, the acknowledged inefficacy of partisan judicial elections is not itself a partisan issue. Politicians and commentators from across the political spectrum agree that in the modern era, party labels for judicial candidates weaken the public legitimacy of the judiciary, offer little significant information to voters, and are at best extremely awkward for judges. The North Carolina proposal was a step backward.
The BNA reports here that if he is confirmed to the Supreme Court, Judge Neil Gorsuch would lose his position as Chair of the federal Advisory Committee on Appellate Rules, a role he has occupied since last October. This is only a minor administrative inconvenience for the federal court system; Chief Justice Roberts no doubt has already considered how to replace Judge Gorsuch on that committee. But the article does provide an important reminder about the considerable experience Judge Gorsuch brings to judicial administration, and lets us consider why such experience matters. Continue reading “Neil Gorsuch and judicial administration”
North Carolina used to select all of its state judges through partisan election. Judicial candidates would have to win a party primary, and would appear on the ballot with a party designation. In 1996, the state legislature eliminated the partisan designations for state superior court races, and in 2001 did the same for district courts. Judges still face contested popular elections, but do not run under any party affiliation.
North Carolina’s move put it in good company. While a handful of states still have partisan races, most states that still elect their judges long ago moved to a nonpartisan system. Nonpartisan elections are certainly not foolproof, but deliberately omitting party affiliation from the ballot at least reinforces the message that voters should expect their judges to be impartial in performing their official duties.
This week, however, the North Carolina Senate chose to revert to partisan judicial elections. The state House of Representatives passed a similar (but not identical) bill earlier in the session. There is speculation that the Governor may veto the bill. Stay tuned.
When Justice Steven Taylor recently retired from the Oklahoma Supreme Court, Governor Mary Fallin tapped 35-year-old Patrick Wyrick to fill his seat. Seats on the court are geographically distributed, and Wyrick was among three finalists from the state’s Second Judicial District whose names were submitted to the Governor for final consideration. The final nominees were chosen by the state’s Judicial Nomination Commission (JNC).
But now Justice Wyrick’s appointment is being challenged by the Oklahoma Chapter of the ACLU, on the grounds that he does not actually reside in the Second Judicial District. In preliminary arguments last week, Wyrick’s lawyer dismissed the challenge, asserting that the JNC’s selection of the three finalists is effectively unreviewable. The ACLU countered that no state entity, including the JNC, has all-powerful status.
The decision is now before the state supreme court itself, leaving the eight remaining justices to decide the fate of a potential colleague. The ACLU has further requested that any sitting justice who recommended Wyrick for a judicial position be recused from considering the case.
Certainly a fascinating example of court interdependence that bears watching.
The Wall Street Journal posted a nice article this weekend on the role of the American bar Association in reviewing and rating federal judicial nominees. (I was quoted, which was also nice!) It gives a good summary of the ABA’s rating process and the history behind it.
The ABA ratings have had their share of controversy, and in an age where everything is increasingly politicized, we should not be surprised if controversy continues. But the ABA’s overt avoidance of political/policy questions, and deliberate focus on the qualities everyone would expect of a good judge (appropriate demeanor, high level of competence, intelligence and legal skills, etc.) make it a worthwhile addition to the overall vetting process. Nor is the ABA alone: similar criteria are used by state judicial nominating commissions across the country.
The ABA’s involvement also underscores an oddity of federal judicial selection: almost everyone gets a say in the timing and substance of judicial nominations except the courts themselves. I’m hard pressed to think of another sizeable organization that is so constrained in hiring its core employees.
If you hit a subscription wall, a PDF of the article is here.