Gavel Grab

Rhode Island’s use of a version of merit selection for its principal courts has gotten news media attention recently, when Common Cause Rhode Island said participants have acted in a manner that undermines it (see Gavel Grab).

John Marion, executive director for Common Cause RI, said there is a deadline of 21 days for governors to select judges from candidates listed by the Judicial Nominating Commission, but governors have “ignored” it. He also said legislators annually enact legislation that permits the governor to take nominees from outdated candidate lists.

Gavel to Gavel, a publication of the National Center for State Courts, now provides context by reporting on recent developments in the legislature.

Gavel to Gavel reported that annual bills have made eligible for gubernatorial appointment any candidates recommended by the Judicial Nominating Commission for the same court in the prior five years.

Currently, two bills  for another annual extension are “on the verge of failure,” and the existing relevant provision is set to expire June 30, according to Gavel to Gavel. Read more

In Tennessee, there is debate about whether the soon-to-expire Judicial Nominating Commission should be screening and recommending candidates for three appellate court vacancies that will occur in more than a year.

The debate comes in the wake of the legislature’s inaction this year to extend the life of the screening commission. It expires after June 30. Next year, voters will be asked to approve or reject a proposed constitutional amendment to give the governor unilateral power to pick judges, subject to confirmation by the legislature.

The three judges will retire Aug. 30, 2014. The commission currently is working to recommend candidates for the vacancies before its authorization sunsets.

“I think I can understand the nominating commission is trying its best to do its duty before it sunsets,” said state Sen. Doug Overbey, who had pushed in the legislature for an unsuccessful bill to extend the commission’s life to 2015, according to a Knoxville News Sentinel article. He supports the merit-based judicial selection plan currently used in Tennessee. Read more

The Tennessee legislature’s inaction to extend the life of the state’s Judicial Nominating Commission “puts the judicial branch at risk,” a Knoxville News Sentinel editorial warns. It urges the legislature to move next year to “fix the mess it made.”

The editorial board uses the recent retirement announcements of two appellate judges (see Gavel Grab) to drive home its point.

The legislature recently completed its work without extending the life of the commission that screens judicial candidates and makes recommendations to the governor. It expires after June 30. Next year, voters will be asked to approve or reject a proposed constitutional amendment to give the governor unilateral power to pick judges, subject to confirmation by the legislature.

“Lawmakers neglected to extend the life of the Judicial Nominating Commission beyond June 30, leaving commissioners scrambling to nominate replacements for [the judges]. A hurried nomination process shortchanges possible nominees and could result in an ill-advised appointment,” the editorial says.

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Kansas Gov. Sam Brownback, discussing accomplishments in the legislature’s completed session, cited changes to the way Kansas Court of Appeals judges are selected. The legislature dismantled a merit-based selection process for these judges and adopted a Washington-style process of direct gubernatorial appointment, with Senate confirmation.

The Kansas legislature did not approve similar changes that were sought for selection of Supreme Court justices. These changes would require a change to the state constitution as opposed to a statutory revision. The Senate approved a proposed constitutional amendment, but there was not enough support for it to advance in the House.

The Court of Appeals selection law removed the role of a judicial screening commission and added the Senate confirmation mandate.

According to the Hays (Ks.) Post, Brownback’s statement wrapping up the legislature’s achievements said this change “will restore public confidence in our judiciary and give all Kansans an equal voice, whether directly or indirectly through elected representatives, in choosing our judicial leaders.”

Justice at Stake voiced concern when the legislation was signed into law. “Kansans want their judges selected based on qualifications, not partisan politics or back-room deals,” JAS said. The politicians who eliminated merit-based selection “have chosen to disregard the views of Kansas voters,” JAS said, pointing to recent opinion polling. Read more

The time-tested, nonpartisan Kansas court system is being “decimated” by legislative attacks from “ultraconservatives” unhappy with court decisions that didn’t go their way, a Kansas City Star editorial declares.

The editorial is headlined, “Political attacks on court imperil justice in Kansas.” It presents one of the most outspoken editorial board condemnations this legislative season of changes adopted, and proposed, to the way Kansas has picked top judges through a merit-based selection system.

It begins by extolling the success of the Kansas merit plan in buffering impartial courts from politics:

“For more than a half century the Kansas nonpartisan court plan has stood as one of the state’s most responsible and respected institutions.

“Judges selected under the plan have earned the reputation of ruling impartially and sticking closely to the law and evidence. Importantly, the plan shields the justice system from the raw politics that has stained many judges picked by partisan means.” Read more

Political deal-making in appointing top judges and court-stacking are among the dangers posed by legislation introduced in Kansas to change the way judges are selected, a Lawrence Journal World editorial says. It warns of a likely “heated ideological battle next year about the role and significance of the state’s highest court.”

The editorial dissects three late-session proposals introduced by Republican Rep. Lance Kinzer (see Gavel Grab). The proposals would eliminate merit selection for the Court of Appeals and Supreme Court and replace it with a federal-style appointment-and-Senate-confirmation system; if that fails, reduce from 75 to 65 the mandatory retirement age for these judges; and split the Supreme Court in two, with a Court of Criminal Appeals handling criminal cases and the Supreme Court handling civil cases.

The editorial sees at play the guiding hand of politicians unhappy with court rulings, and it identifies perils of the proposals:

“It’s no secret that Gov. Sam Brownback and many state legislators are upset with the Kansas Supreme Court and its decisions on a number of issues — particularly its ruling that the state isn’t fulfilling its constitutional mandate to properly fund K-12 education. Rather than work to pass legislation or amend the constitution to deal with specific issues like school finance, however, legislators are choosing to attack the courts in ways that could potentially upset the intended balance of power among the three branches of government. Read more

A Kansas legislator has introduced legislation that could develop into the most rigorous campaign so far to rein in the authority of the state Supreme Court, reports the Associated Press.

Republican House Judiciary Committee Chairman Lance Kinzer says he wants to shift to a federal-style selection system for Kansas Supreme Court justices.

Kinzer also proposed that the state Supreme Court should no longer be the final arbiter for a number of cases, effectively changing the role of the seven justices.

Democratic leaders are alarmed by Kinzer’s proposals, the article says. “It’s just an overreach,” said Senate Minority Leader Anthony Hensley. “It’s just punitive politics at its worst.” Read more

Kansas legislators must resist a proposed constitutional amendment that would politicize selection of state Supreme Court justices, a Wichita Eagle editorial warned.

Legislators voted earlier this year to change the way state Court of Appeals judges are selected, dismantling a merit selection system in the process. Gov. Sam Brownback signed the measure into law. Justice at Stake said the actions disregarded “the views of Kansas voters” (see Gavel Grab).

The editorial summed up recent legislative developments this way:

“The session has seen enough unnecessary change to the judiciary with the law politicizing appointments to the Kansas Court of Appeals. The House should resist a revised constitutional amendment still aimed at doing much the same to the state Supreme Court. Kansas’ appellate judges should be chosen because they know and will follow the law, not because of their political connections and beliefs.”

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Kansas state Rep. Lance Kinzer, chairman of the House Judiciary Committee, has introduced late-hour proposals to shift to a federal-style  selection system for Kansas Supreme Court justices and to take away some of the authority of the state Supreme Court. Still another measure would require judges to retire earlier.

State Rep. Paul Davis, the House Minority Leader, in turn, retorted that “The Republicans need to stop trying to bully the court system.” He added, according to a Topeka Capital-Journal article, that Gov. Sam Brownback and GOP legislative leaders should quit this “power grab and respect the system of checks and balances that has served Kansas well for so many years.”

The latest assault on the state’s merit selection system for choosing top judges came shortly after a different proposal, floated by a leading Republican senator, was rejected unanimously by the Kansas Bar Association’s board (see Gavel Grab).

According to a Wichita Eagle report, Kinzer signaled that his latest proposals on judicial selection and the high court’s authority are intended for consideration when the legislature comes back next year.

The Kansas Bar Association’s board voted unanimously against a proposal floated by key legislators wanting to revamp the state’s merit selection plan for choosing top judges and add state Senate confirmation as a requirement.

Not only did the vote deal a potentially fatal setback to the proposal in the legislature’s closing days, but at the same time, Kansas Chief Justice Lawton Nuss accused a key sponsor of apparently attempting to pressure judges to endorse the proposed changed to judicial selection.

An Associated Press article was headlined “Kansas court plan founders; backer faces allegation.”

Lee Smithyman, the Bar Association president, said after the board’s vote regarding the plan, “We felt it provided too much power to the executive branch.” The proposal would have kept, but altered, a nominating commission that vets candidates for the state Supreme Court and Court of Appeals while revising its composition.

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