State legislators are trying to politicize their judiciaries for short-term gain. Courts, their users, and the public must speak up to stop them.
The first weeks of the 2021 legislative session have seen an extraordinary number of proposals to overhaul the selection of judges or otherwise affect the composition of state judiciaries. Among them:
In Montana, Senate Bill 140 would eliminate the state’s judicial nominating commission, giving the governor direct appointment power over district court judges and state supreme court justices. The nominating commission, in place for nearly half a century, was expressly implemented to depoliticize the judicial appointment process. Despite an outpouring of criticism for the proposal, which is widely seen as a partisan gambit by new Governor Greg Gianforte and Republican legislators, the bill passed the legislature last week. If signed by the governor, the bill would make Montana a national outlier in its refusal to use an independent nominating commission.
In Alaska, a very similar bill would eliminate the role of the state’s nominating commission for the appointment of judges on the district courts and state court of appeals. Senate Bill 14 was introduced by Republican senator Mike Shower in late January. As in Montana, the bill has been panned as “a concerted strategy to dismantle Alaska’s system of selecting judges based on merit and replace it with a process that relies primarily on politics.” Alaska’s Chief Justice, Joel Bolger, similarly criticized the bill as undermining a well-established and respected judicial selection process. Continue reading “State courts come under legislative assault”
Lawrence Friedman’s recent post lays out a compelling case for achieving educational and experiential diversity on the Supreme Court. He looks to the states for guidance, noting that courts of last resort at the state level frequently feature highly qualified justices who graduated from a wide range of law schools and who feature an extensive variety of practice experience.
It’s a tantalizing analogy, which works well in some states but doesn’t translate to the federal level. Still, there are glimmers of hope for more experiential diversity in future iterations of the Supreme Court. More below. Continue reading “Experiential diversity on the Supreme Court is a pipe dream — at least for now”
A strange story has emerged out of Florida’s 18th Judicial Circuit. The head of the Circuit Judicial Nominating Commission, attorney Alan Landman, resigned after a kerfuffle with Governor Ron DeSantis over the commission’s recommendations for an open judicial seat in Brevard County. Landman maintains that he had no choice but to resign after the Governor directly interfered with the independence of the nominating commission. The Governor’s representatives, by contrast, maintain that Landman was asked for his resignation after he inappropriately pushed his own preferred candidate.
Continue reading “The head of a Florida judicial nominating commission resigns. Who is to blame?”
Last week, Alaska Governor Mike Dunleavy refused to appoint a state trial judge from the list of nominees provided to him by the Alaska Judicial Council, expressing concern that certain qualified applicants were “inexplicably” not included on the list. In response, Alaska Chief Justice Joel Bolger defended the existing selection process.
The governor and chief justice met to discuss the impasse earlier this week, and seem to have reached an understanding. Dunleavy has now agreed that he must choose a judge from the existing list of nominees. Publicly, the governor has pushed to broaden the list of nominees in the future, which is a perfectly sensible policy discussion to take up. In the meantime, it is good news that this particular kerfuffle has ended with minimal damage.
Tennessee uses a version of the Missouri Plan to select its state appellate judges. Known (unsurprisingly) as the Tennessee Plan, it calls for an independent nominating commission to present a slate of qualified candidates to the governor, who must appoint a judge from that slate. (This is akin to most merit selection plans around the country.) The judges then stand for retention elections.
Trial court vacancies are filled using a similar process. A nominating commission (whose members are appointed by the legislature) presents a slate of names to the governor within 60 days of a judicial vacancy, and the governor must choose a new judge from that slate.
Under the current system, legislators no direct role in filling judicial vacancies, but a bill working its way through the state legislature is aiming to change that. For new trial judges, House Bill 1257 would require the governor to provide a written notice of appointment to the clerk of each legislative chamber, which would trigger a 60-day period for each chamber to confirm the nominee. If both the Senate and House reject the nominee, or if even one chamber rejects the nominee by a two-thirds majority, the appointment would fail. If neither of these things happens within 60 days, however, the appointment would be deemed valid.
There is nothing inherently wrong with the legislature wanting to have a say in judicial appointments, but in the absence of a pressing concern about the current process, it’s hard to see why this is a good idea. The use of an independent commission is already designed to cut down the risks of partisanship or patronage, and to ensure qualified candidates. And because a nominee may not take the bench under this bill until legislative confirmation or the passage of sixty days after nomination, the judiciary would be left with longer periods of unfilled vacancies.
The bill has only worked its way through the House Judiciary Subcommittee, and has a long road to travel before becoming law. But it’s hard to see why this idea is particularly wise, necessary, or beneficial to those who rely on Tennessee courts to be efficient and effective.
Alaska’s constitution, like that of many western states, embraces a merit selection process for judges. An independent nominating commission (here, the Alaska Judicial Council) reviews the applications of judicial aspirants and selects a slate of names, which it forwards to the governor, who in turn must choose a candidate from the slate. The system has operated without incident for sixty years … until now.
Governor Mike Dunleavy, provided with a slate of nominees for the Palmer Superior Court, has refused to name anyone to the open seat on the court. The governor’s reasoning appears to be that there were other qualified candidates who “inexplicably” (in his view) were not included among the nominating committee’s choices.
The governor has 45 days under state law to choose from among the candidates provided by the commission. Forty-five days have now passed, and no one is sure what will happen next. The state’s chief justice has defended the sanctity of the current nominating process.
The governor seems to be plainly in the wrong here. Merit selection systems deliberately divide the power of judicial appointments among multiple actors to reduce the risks of patronage and political partisanship. The governor does not appear to argue that the candidates provided by the commission were unacceptable, only that there are others he would prefer. That is not his prerogative. He should fill the seats with a qualified nominee provided by the commission, and give the state courts the judicial staffing they deserve.
Iowa has used a nominating commission to select its judges for more than half a century. As currently comprised, the commission includes a chair (the most senior justice of the state supreme court other than then chief justice) and sixteen members, half of whom are chosen by the governor and the other half of whom are chosen by the state bar association.
But new legislation, introduced by state senator Julian Garrett, would radically revise the composition of the commission, by stripping the state bar of all but one representative, and leaving the remaining members to be appointed solely by the governor. Garrett has called the existing system “unfair” and “undemocratic,” because the bar association appointees are not directly accountable to the electorate.
It’s worth emphasizing that the bill has only been introduced, and may never see passage. But it’s indicative, at least to me, of a growing skepticism of bar associations and the legal profession generally. This is likely connected to the overall skepticism of professional expertise that is on the rise on American culture. And it means that lawyers and judges will have to work harder, and in different ways, to convince legislators and citizens that their professional knowledge is used for the public good.
On Monday, the President nominated ten individuals for federal judgeships — five on the circuit courts of appeal, four on the district courts, and one on the U.S. Court of Claims. Three of the ten (Joan Larsen of Michigan, David Stras of Minnesota, and David Nye of Idaho) currently sit on state courts — Larsen and Stras on their state supreme courts, and Nye on his state’s trial bench.
The value of state court experience for federal judges has not been discussed much, but it should be. An intimate knowledge of state law and state court operations is surprisingly useful for the federal bench. And appointing federal judges from the state courts has valuable ripple effects for the states as well. More after the jump.
Continue reading “Several new federal judicial nominees have state court experience, and that’s great news”
In Florida, as in many other states, the state’s U.S. Senators have created a nominating panel to recommend potential nominees for the federal judicial openings. As part of the larger vacancy crisis, Florida currently has seven openings at the federal district court level. The state’s Lieutenant Governor, Carlos Lopez-Cantera, has been chosen as the new head of the nominating panel.
Let’s hope that the panel does good work, President Trump takes advantage of their pre-screening process, Senators Rubio and Nelson help shepherd the nominees through the Senate, and the people of Florida are able to enjoy a full-strength federal bench in short order.
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”