States See New Trend in Anti-O’Connor Plan Legislation

March 24, 2016

It’s that time of year again, when state legislatures are in session and lawmakers who are dissatisfied with the judiciary and some of its decisions are proposing changes in how judges are selected.

This is nothing new: the O’Connor Judicial Selection Plan, which calls for commission-based appointment (or “merit selection”) of judges, has been under attack in a number of states, and there seems to be a pattern to the attacks. Over the last decade, we have seen trends across the country in terms of the types of changes that are proposed. One such trend that was popular several years ago was an effort to expand gubernatorial authority over the process, by allowing the governor to choose more members of the judicial nominating commission and giving the governor more nominees from which to make appointments. In Arizona and Missouri, where courts are often depicted as out of step with the public, voters rejected proposed constitutional amendments along these lines in 2012.

Another recent trend has been to require senate confirmation of judicial appointments, as in the federal system. Such a proposal was turned down by Florida voters in 2012, and similar measures have failed narrowly in a number of other state legislatures in the last decade.

And, almost without fail, every year a handful of states see legislative efforts to replace commission-based appointment of judges with contested elections. A now-defeated judicial elections bill introduced in Hawaii this session was motivated by a trial judge’s decision requiring the legislature to allocate more funds to the Department of Hawaiian Home Lands. Kansas and Oklahoma have seen similar bills this session, as lawmakers respond to recent court decisions on such hot-button issues as school funding, abortion, capital punishment, and the Ten Commandments.

The 2016 legislative sessions have seen a new trend—a proposed requirement that nominating commissions submit to the appointing authority (usually the governor) the names of all applicants who meet the constitutional and statutory qualifications for serving as a judge. So far, such proposals have been introduced in Oklahoma and South Carolina, and both bills have been approved by one chamber. (A similar bill in Missouri would eliminate the cap of three nominees and allow the commission to nominate as many candidates as it sees fit.) Because we at IAALS see the impartiality, balance, and authority of the nominating commission as a key factor in the success of merit selection systems, this is of particular concern.

All of these measures are designed to chip away at apolitical systems for choosing judges—and fill the holes with partisanship. Partisanship puts a thumb on the scales of justice, and we desperately need trusted and trustworthy courts. The nominating commission has long been described as the key to the judicial merit selection process, and we hope that its supporters in the thirty-three states that use nominating commissions will work to preserve their crucial role.

On a more positive note, we at IAALS are pleased to see that a move to merit selection is under consideration in a handful of states around the country, including Arkansas, Maryland, and Pennsylvania. Check out a new resource from IAALS that addresses the ethical responsibilities of the nominating commissioners who make the merit selection process work.