Selection Snapshots

For the first time in more than 40 years, the Pennsylvania Supreme Court has amended its Code of Judicial Conduct. Among the new rules is a provision that requires judges to recuse themselves from hearing cases where the judge knows or learns that a party, a party's lawyer, or the law firm of a party's lawyer has made a direct or indirect contribution(s) to the judge's campaign.

A Tennessee trial court judge has ruled that the composition of the state's judicial performance evaluation commission violates the state constitution. Despite invalidating the commission's composition, the judge did not enjoin its operation, and, three days after the ruling, the commission released its final evaluations and recommendations for the appellate judges standing for retention later this year.

With the start of a new year comes the convening of state legislatures around the country, and, in a number of states, judicial selection reform is on the table. Kansas, Missouri, Oklahoma, Tennessee, Texas, Minnesota, and Pennsylvania will all consider changes in how their judges reach the bench.

According to the Michigan Campaign Finance Network (MCFN), more than $18 million was spent in two Michigan Supreme Court races in 2012. Of this, nearly $14 million was spent on candidate-focused issue advertising, but the sponsors of those ads were not required to disclose their spending or identify their donors. A bill that would codify the current non-disclosure rule has supporters and opponents who are urging the governor to take their side.

In August 2014, all of Tennessee's appellate judges will appear on the ballot, and voters will decide whether they should be retained in office. By that time, the Judicial Performance Evaluation Commission will have provided information to the public about these judges' performance on the bench. Last month, the commission announced that it may take the unprecedented step of recommending against the retention of three intermediate appellate court judges.

Republican and Democratic lawmakers have introduced a bill calling for a move to merit selection for judges of Pennsylvania's appellate courts. The proposed constitutional amendment would replace partisan elections with a commission-based gubernatorial appointment and senate confirmation process. And, the time may be right for selection reform in the state, according to a recent survey.

Pennsylvania is one of at least four states that holds judicial elections in off-years. This November, two candidates competed for a seat on the superior court (an intermediate appellate court) and four appellate judges, including two supreme court justices, stood for retention. Additionally, in New York, voters considered a proposed constitutional amendment that would have raised the mandatory retirement age for judges on the state's highest court and major trials courts.

According to a new poll, nearly nine in ten voters believe that judicial campaign support—whether in the form of direct contributions or independent spending—influences judicial decisions. This figure is a sharp increase from similar polls conducted over the last decade. These heightened concerns could be a reaction to the U.S. Supreme Court's decision in Citizens United or to a marked rise in judicial election spending, particularly by outside groups, in recent years.

Florida has a commission-based judicial appointment process wherein the governor appoints all members of the nominating commissions, with some of the governor's appointees come from candidate lists submitted by the Florida Bar. According to a new report, Governor Rick Scott often rejects the bar lists and requests additional names, unlike his predecessors Charlie Crist and Jeb Bush, who always accepted the bar's recommendations. And, the pace of these rejections is expected to rise.

According to a new analysis, justices on Wisconsin's high court tend to favor parties whose attorneys contributed to their election campaigns. With respect to campaign donations made prior to rulings, justices included in the study ruled in favor of donors 59 percent at the time. This does not establish that campaign support actually influenced decisions, but fair courts advocates worry that the public perceives this to be the case.