merit selection

Kansas Governor Sam Brownback has signed a bill making the state's nominating commission for Supreme Court justices subject to open records and open meetings laws, the Wichita Eagle's Bryan Lowry reports.

The bill also requires the governor to disclose the names of applicants for the intermediate appellate court, the Kansas Court of Appeals, and will require the clerk of the Kansas Supreme Court to submit a list of lawyers eligible to vote to the Secretary of State before elections.

The Kansas Supreme Court is under attack by conservatives, including Governor Sam Brownback, for its rulings overturning death penalty verdicts, blocking anti-abortion laws, and ruling in favor of public-school funding, The New York Times' Erik Eckholm reports.

Those efforts include: A bill was passed by the Republican-controlled Senate to authorize the impeachment of justices if the court's opinions allegedly usurp the power of the executive and legislative branches. Conservatives also hope to unseat four justices this fall during retention elections. The governor also is pushing for an amendment "that would give the governor more control over choosing new justices, who are now winnowed through a merit system."

Arkansas Governor Asa Hutchinson has come out in favor of merit selection for judges on the Supreme Court and the Court of Appeals, Arkansas News' John Lyon reports. Hutchison said "'I am willing to give that some gubernatorial support, some gubernatorial initiative to help drive that re-examination to look at how we can better elect our judges and also have the people continue to be involved in that process.”'

Last year, a constitutional amendment to create merit selection for Supreme Court justices failed in a legislative session.

The current chief justice of the Kansas Supreme Court, a former chief justice of the Texas Supreme Court, a former chief justice of the Florida Supreme Court and a former justice on the Montana Supreme Court have both come out against judicial elections in their states.

Kansas Chief Justice Lawton Nuss has come out against plans being considered by legislators to elect justices or have the governor appoint justices instead of keeping the state's 57-year-old merit selection system: "In Kansas, merit selection is a healthy competition that compares side by side the qualifications of numerous applicants. Their names and qualifications are made public, and the selection process itself is open for Kansans to see. Politics and its ever-increasing money play no role. But under the federal solution, only the name of the governor’s appointee is made known." He notes that voters get to directly play a role when voting on whether to retain justices.

In a piece published in the Montana Lawyer, former Montana Supreme Court Justice James C. Nelson says that he has changed his mind about electing judges. The $1.63 million raised in the last election cycle for the Supreme Court shows that going forward judicial elections will be "characterized by huge expenditures of dark money, attack ads, misleading mail stuffers, and the involvement of out of state money and organizations," Nelson writes. He notes that the U.S. Supreme Court's ruling lifting limitations on campaign expenditures by PACs, unions and other groups encourages unqualified attorneys to run for seats on the judiciary because they can play to "out-of-state dark money folks." In addition to changing Montana's constitution to select judges through a merit selection system, Nelson would require attorneys to have a decade of experience practicing in Montana courts.

In a piece published in the Dallas Morning News in January, Wallace B. Jefferson, Texas' former chief justice, and Barbara Pariente, former chief justice of the Florida Supreme Court, criticized the amount of special-interest funding being spent on judicial elections in the wake of the Citizens United ruling. They said judges should be selected by merit: "This method, used by 23 states to select their top judges, gives a nonpartisan commission the responsibility to evaluate the objective qualifications of judicial candidates and make recommendations to the governor for appointment. Some of these systems include retention elections, so that the voters can remove judges who have committed ethical improprieties."

Constitutional amendments have been proposed to transform the selection of Kansas appellate judges, the Topeka Capital-Journal's Tim Carpenter reports. One plan would abandon a merit-selection system in which a nominating commission forwards finalists for Supreme Court vacancies to the governor. The governor already has the power to pick Court of Appeals judges outright. Another plan would institute elections for both appellate courts.

Jeffrey Jackson, a law professor at Washburn University in Topeka, testified during a legislative hearing that "judges should not be reshaped into politicians who compete for contributions and work the campaign trail."

Tennessee voters opted to change the way that judges are selected, The Tennessean's Dave Boucher reports. The constitutional amendment tweaks the state's judicial selection process from one in which the governor appoints judges to one in which judges, after appointment by the governor, must be approved by legislators and face judicial retention vote from the general public vote every eight years.

Control of the Tennessee appellate courts has been heated this year. Three Democratic justices on the Tennessee Supreme Court were retained in the most expensive judicial campaign in the state's history. Republican Senate Speaker Ron Ramsey funded much of the effort to oust the justices. According to the AP, Ramsey promised to push for popular elections for judges if the constitutional amendment failed.

The National Law Journal's Amanda Bronstad provides an overview of ballot initiatives affecting the courts that voters will be deciding to accept or reject:

In California, voters will decide if the $250,000 statutory cap on noneconomic damages in medical malpractice cases should be annually adjusted for inflation. If approved, the cap would be raised to $1.1 million.

In Tennessee and Florida, there are initiatives to change those states' constitutions regarding the selection of judges. In Florida, the governor would be allowed to prospectively fill some judicial vacancies. In Tennessee, the governor would be able to select nominees for the appellate courts.

In Louisiana, there is an initiative that would end the requirement that judges retire at the age of 70.

In Nevada, there is an initiative to establish an intermediate court of appeals.

Even though a a federal judge has ruled the judicial election system in Marion County, Indiana, unconstitutional, the system won't be fixed anytime soon, the Indiana Lawyer reports: "Indianapolis voters will go to the polls Nov. 4 and elect 16 Marion Superior judges, but in truth there’s no contest because who will win already is decided. Eight Democrats and eight Republicans selected in their respective parties’ May primary elections appear on the ballot unopposed."

U.S. Chief District Judge Richard Young of the Southern District of Indiana ruled that the law governing the selection of judges in Marion County imposes a severe burden on the right to vote, the Indiana Lawyer reports. The judicial selection system in Marion County also "enabled slating, whereby judicial candidates who made five-figure donations to their county party organizations received ballot preference and the party’s stamp of approval during the primaries," the Indiana Lawyer also reports.

Indiana University Robert H. McKinney School of Law Professor Joel Schumm said it's likely that Marion County would adopt a merit selection system like other Indiana counties in which judges are appointed by a commission.

Tennessee voters will be deciding whether to keep the state's method of selecting appellate judges, the Associated Press reports. Under a "merit selection" system, the governor makes appointments to fill vacancies on the state's appellate courts and voters then decide whether to keep the judges and justices in retention elections. A proposed constitutional amendment would allow legislators to reject the governor's nominees.

Control of the Tennessee appellate courts has been heated this year. Three Democratic justices on the Tennessee Supreme Court were retained in the most expensive judicial campaign in the state's history. Republican Senate Speaker Ron Ramsey funded much of the effort to oust the justices. According to the AP, he will push for popular elections for judges if the constitutional amendment fails.

Bert Brandenberg, executive director of Justice at Stake, has delved into the election of judges and the problems it poses for democracy. There have been record-breaking expenditures in races for the Tennessee Supreme Court ($1.4 million) and for the North Carolina Supreme Court ($1.3 million) this year: "Left unchecked, the tidal wave of judicial campaign cash will upend justice in America by pressuring courts to answer to political influence, by turning judges into fundraisers and by convincing disillusioned citizens that justice is for sale," he opines.

How did this come about? State supreme courts are now the battleground "in the nation’s long-running tort wars, pitting business interests, which are eager to limit damage awards, against plaintiffs and their allies, who contend that big-dollar judgments are critical to holding negligent businesses accountable," Brandenberg further argues.