Selection Snapshots

Taking some lawmakers by surprise, prominent Republicans in the house and senate announced that they will continue their pursuit of a constitutional change to the process for selecting supreme court and court of appeals judges in the final days of this legislative session.

The Tennessee legislature ended its 2013 session without renewing the state’s judicial nominating commission, which screens applicants for appellate court vacancies and recommends the best qualified candidates to the governor for appointment. The commission expires on June 30, and as of July 1, there will be no process in place for filling vacancies on the supreme court, court of appeals, and court of criminal appeals.

Governor Maggie Hassan signed an executive order establishing a judicial selection commission to advise her in filling vacancies on the state’s courts. Hassan is the third New Hampshire governor to create such an entity. The first was Governor Jeanne Shaheen in 2000, a response at least in part to the impeachment of a supreme court justice.

A group of Republican members of the house of representatives have proposed cutting the pay of the four remaining Iowa Supreme Court justices who participated in Varnum v. Brien, a unanimous 2009 ruling that struck down a state law banning same-sex marriages.

Senators Ron Johnson (R) and Tammy Baldwin (D) have agreed to a restructuring of the commission that has been used in Wisconsin since 1979 to advise senators in recommending potential candidates for federal judge and prosecutor vacancies in the state. They have agreed to share the appointment authority equally, with each appointing three to a six-member commission.

Socially conservative legislators in Alaska have proposed a bill that would remove the judicial council’s authority to make recommendations regarding judges standing for retention. In Tennessee, legislators have proposed a bill that would allow them to reconstitute the nine-member performance evaluation commission with no judge members. It would also authorize the commission to rewrite existing evaluative criteria and to prevent judges who receive a recommendation “for replacement” from standing for retention.

Arizona governor Jan Brewer signed a bill calling for the state’s judicial nominating commissions to submit at least five names for each judicial vacancy. As IAALS Online reported last month, some question the constitutionality of the bill, since the state constitution allows commissions to send a minimum of three names to the governor.

Legislatures in 17 states are considering whether to increase or eliminate their mandatory retirement age for judges. Mandatory retirement ages for state judges around the country range from 70 to 75. Pennsylvania’s supreme court recently agreed to hear a case challenging that state’s maximum age of 70 as discriminatory and in violation of the state constitution.

Public financing of judicial elections is currently seeing a mixed reception in a handful of states. North Carolina is considering discontinuing the public financing program for appellate races that the legislature established in 2002, while in Kentucky, the house of representatives has approved a bill establishing public financing for supreme court campaigns. Other states include West Virginia, New Mexico, and Wisconsin.

Facing sentencing for a corruption conviction and a house resolution calling for her impeachment, Justice Joan Orie Melvin announced her resignation, effective May 1. Supporters of judicial selection reform are optimistic that these developments will lend momentum to efforts to move to merit selection of the state’s appellate judges.