News & Updates

Recently, speculation has surfaced about whether judicial selection and tenure will be addressed at a special legislative session in Oklahoma, called by Governor Fallin. Although a Republican legislator wrote a letter warning judges around the state of rumors that there would be efforts to impose term limits and to eliminate the judicial nominating commission, a spokesman for the governor offered assurances that the only topic for the special session is lawsuit reform.

Richard Gabriel recently penned an article for CNN following the conclusion of the George Zimmerman trial, in which he referenced several reports that examine potential biases in the justice system. Among them was IAALS’ Leveling the Playing Field: Gender, Ethnicity, and Judicial Performance Evaluation, which explores whether there is evidence that implicit biases enter into evaluations of judges’ performances.

On September 17, 2013, IAALS and the Byron R. White Center are bringing United States Supreme Court Justice Sandra Day O’Connor (ret.) to Colorado to deliver the 3rd Annual John Paul Stevens Lecture. The Stevens Lecture brings a well-known jurist to the University of Colorado Law School each year. Registration for the lecture is now open, and can be accessed online.

In Minnesota, a broad-based group known as the Coalition for Impartial Justice, which includes more than 30 business, labor, religious, citizen, and legal groups, is working to implement the 2007 recommendations of the Quie Commission. The commission was unanimous in calling for the adoption of a "merit selection" process for judges and a performance evaluation program, with a majority of the commission favoring retention elections for subsequent terms.

In April, the Arizona legislature passed and the governor signed a bill directing the state's judicial nominating commissions to submit the names of at least five finalists for each judicial vacancy. Last week, four members of the appellate judicial nominating commission filed a petition with the state supreme court to declare the new law unconstitutional. The law is in apparent conflict with a constitutional provision calling for the commission to submit at least three names.

A new report from the Brennan Center for Justice highlights the unprecedented number of judicial vacancies in federal district courts across the United States. Approximately ten percent of federal trial court seats are currently vacant. These vacancies, largely the result of drawn-out nomination and confirmation processes, have an increasingly negative impact on the effectiveness of both the criminal and civil justice systems. The report makes three observations about these vacancies.

Last week, controversy arose in Kansas over Governor Brownback's announcement that he would not release the names of applicants for a court of appeals vacancy. The governor initially rejected a petition requesting that applicants' names be released, but he may be reconsidering that decision. Meanwhile, screening committees in Wisconsin and Florida, established to assist them in recommending potential federal judges to the White House, have differing plans on the confidentiality of applicant names.

Our recommendations for reviewing written opinions as part of a performance evaluation program for appellate judges are featured in Trends in State Courts 2013, an annual publication of the National Center for State Courts. Drawing upon insights gained from a national conference, an expert task force, and focus groups with appellate judges and attorneys, this recommended model addresses the evaluation teams who conduct the review, the selection of opinions to be reviewed, and the criteria and process for review.

Two recent appointments to Maryland's court of appeals mark "firsts" in diversity for the state's highest court. Governor Martin O'Malley's elevation of Judge Mary Ellen Barbera to be chief judge would make her the first woman to lead the high court. Shirley M. Watts, whom O'Malley appointed to fill Barbera's vacancy as associate judge, would be the first African-American woman to serve on the court of appeals.

Following an 18-month study, a Wisconsin state bar task force proposed that supreme court justices serve a single 16-year term. Justices currently serve 10-year terms and may stand for reelection. Though term limits would not stem the tide of candidate and special interest spending in the state's judicial elections, supporters believe term limits could help restore the public's trust in a court that has been plagued in recent years by alleged ethics violations and interpersonal conflicts.

Back in March, the Kansas legislature adopted a new process for choosing intermediate appellate court judges in the 2013 session. The governor will make judicial appointments with full discretion, which must then be confirmed by the senate. This process will kick into gear on July 1, but Governor Brownback has announced a new wrinkle: the names of applicants for the judicial position will not be made public.

A new poll by the Center for American Progress assesses voter support for judicial selection changes that are currently under consideration around the country. The highest level of support—80 percent—was found for stronger disclosure laws for judicial campaigns. And, though Republican legislators in North Carolina want to move from nonpartisan to partisan judicial elections, 68 percent of voters nationwide prefer nonpartisan races.

Quality Judges has just released A Credit to the Courts: The Selection, Appointment, and Reappointment Process for Bankruptcy Judges. This study provides the first in-depth examination of the process for selecting U.S. bankruptcy judges, highlighting the similarities and differences among the regional circuits. Despite the number of cases processed in these high-volume courts, and their significance in the financial lives of individuals and businesses alike, very little was known about how the judges who preside over these courts come to be on the bench, until now.

Judge Kevin Burke, a Minnesota trial judge and member of the IAALS Board of Advisors, seconded Ohio Chief Justice Maureen O'Connor's call for selection reform in her state. According to Judge Burke, selection reform in Ohio is needed for three reasons: judicial elections may negatively impact public perceptions of judges and courts, not enough voters participate in judicial elections, and more can be done to educate judicial voters.

According to new data from the Center for Public Integrity, outside interest groups spent more than $11.7 million in ten states on supreme court elections—both contested and retention—in 2012 and 2013. Forty percent of this spending came from out-of-state organizations. The Center's data also show that 75 percent of the outside spending in 2012 and 2013 stemmed from the ongoing battle between trial attorneys and business groups.

Governor Tom Corbett nominated superior court judge Correale F. Stevens to fill the supreme court vacancy created by former justice Joan Orie Melvin's resignation following her criminal conviction. At the same time, a sitting supreme court justice is now the subject of an FBI investigation. The investigation is focusing on whether Justice Seamus McCaffery and his wife, who serves as his chief aide, violated the state Ethics Act when she received fees for referring clients to personal-injury law firms.

Less than a week after the supreme court struck down a civil justice reform measure known as the Comprehensive Lawsuit Reform Act of 2009, some state legislators called for a study of term limits for appellate judges. According to House Speaker T.W. Shannon, it is lawmakers' duty to monitor the government's balance of power, but other legislators described the study as retaliation for the recent decision and other unpopular rulings.

The Tennessee legislature opted not to renew the state’s judicial nominating commission, and it is set to expire on June 30. Three appellate judges announced last week that they will not stand for retention in August 2014, with the expectation that the commission could screen applicants and nominate candidates to fill their vacancies before it ceases to exist in a few weeks. At least one legislator is concerned about setting the judicial selection process in motion more than a year before the vacancies occur.

In a recent article by Judge Kevin Burke, a member of the IAALS Board of Advisors, and Babak Armajani, they discuss several key areas in which courts are failing to meet the needs of the public, and a few states that are taking steps in the right direction. In states where careful consideration of problems and measurement of remedies is taking place, positive and dramatic changes can begin to take hold in the culture and operations of our courts.

In remarks at last week’s annual conference of the state bar association, Justice Barry Albin encouraged members of the legal profession and the public to defend New Jersey’s courts against attacks by the other two branches based on dissatisfaction with court decisions. He went on to suggest that the governor and the legislature have injected politics into the judicial appointment process.