Proposed changes to judicial selection

This article may not adhere to Ballotpedia’s current neutrality policies.

March 31, 2011[edit]

by Katy Farrell

This year, we've seen an increase in the proposed changes to state courts across the nation. Below, we highlight four states that have been in the news this month.

TENNESSEE

In Tennessee, judges of the appellate courts are chosen via the commission selected, political appointment method. After a judge has served at least 30 days, she or he must stand for retention in the next general election.

The Senate Judiciary Committee (SJC) yesterday narrowly voted to advance a bill requiring appellate judges to participate in standard elections. Pointing to a provision in the Tennessee Constitution that says judges should be "elected by the qualified voters of the state," opponents of the current system believe it to be unconstitutional.^[1][2]

Before the bill could be voted on in the full Senate, it would need to pass the Finance Committee. The 5-4 vote in the SJC doesn't necessarily serve as a ringing endorsement for the rest of the Senate, so the fate of the bill is still undetermined.^[2]

The tide in Tennessee varies considerably from the clamor the current Supreme Court election has created in Wisconsin.

WISCONSIN

The past few years have seen Supreme Court elections grow more costly and increasingly negative, much like campaigns for other elected officials. (To see a breakdown of costs of last year's elections, read Supreme Weekly: The cost of running for a Supreme Court.) The kneejerk reaction to these disputed contests is the call for the appointment of judges. Currently, twenty-seven states utilize some method of judicial appointment.

Editorials around the state are calling for that change, in the week before the Spring Election in the state.

Here's a sample of editorials from Wisconsin:

• The Badger Herald, "Opinion: Get rid of partisan-centric Supreme Court elections," March 28, 2011

• Milwaukee-Wisconsin Journal Sentinel, "Opinion: "A misleading ad," March 29, 2011

• The Racine Journal Times, "Opinion: Appointing judges a supreme idea," March 24, 2011

FLORIDA

Currenly, Florida has a system of appointing judges that is similar to the one in Tennessee. Nominees for vacancies are screened by a judicial nominating commission and chosen by the governor.

The House of Representatives hopes to change that. In a bill submitted this month, the legislature proposes to create a system that mirrors the federal judicial nomination process: the governor would select an appointee and the Senate would confirm (or reject) the nomination.^[3] Only Maine and New Jersey use this method. Of those states, Maine's process is relatively quiet, while New Jersey has struggled recently. (To read more about New Jersey's judicial selection woes, check out: Supreme Weekly: Vacancies in January 2011.)

The legislature is considering other changes to the courts as well, including: splitting the high court into two branches, one for criminal cases and one for civil; removing jurisdication of rulemaking; and increasing the judicial retention votes needed to 60% in the general election. Critics of the proposals see it as a power grab for the legislature, which effectively diminishes the importance of the state judicial branch. Proponents see it as an opportunity to "spread sunshine on the [judicial] process, and make it more inclusive."^[4]

One thing the proposals would certainly do is remove the Judicial Nominating Commissions from judicial selection process. The commission is commonly characterized as "Democratic-leaning trial lawyers" while the state legislature is a Republican dominated body.^[4]

WEST VIRGINIA

As discussed in a previous issue of Supreme Weekly, the House of Delegates in West Virginia passed a bill to increase public funding for the state's partisan judicial elections. The goals of public financing of elections are to reduce the amount of outside dollars in a race, attract a larger number of qualified candidates to run and eliminate the appearance of impropriety.

Earlier this month, the Senate Finance Committee killed a measure that would have almost doubled the amount of money dedicated to the program. In a year of slashed state budgets across the nation, this comes as no surprise.^[5]

Other sources of funding for the program exist in West Virginia, though supporters of the bill worry that candidates would be reluctant to sign up for public funding if they would not receive enough to run a campaign.^[6]

See also[edit]

• Supreme Weekly: Tensions mounting in the states
• Judgepedia's Supreme Weekly: The States
• Judicial selection

Footnotes[edit]