On quiet judicial turnover

State judicial elections sometimes produce extreme cases of court turnover, either because interest groups target a group of judges for removal (something I explore in this article), or because an election frenzy sweeps out all (or virtually all) judges affiliated with a certain party (something I explore in more detail here). Such rapid turnover has significant consequences for the courts: the loss of institutional memory, the learning curve for an entire set of new judges, and sometimes radical changes in court culture can all result from an election sweep.

But judicial appointment systems are not immune from significant turnover as well, especially if they are combined with mandatory retirement ages. In a much quieter and more incremental way, an entire generation of state judges can be replaced by a  governor in the course of the few years. Massachusetts provides the most recent example: with yesterday’s confirmation of Scott Kafker to the state’s Supreme Judicial Court, Governor Charlie Baker has now appointed five of the court’s seven members.

Incremental change avoids many of the problems of party sweeps, and carries many direct benefits. New blood and new energy come into the system, and institutional memory is generally preserved. But the frequency of new state judicial appointments is often given little attention. For all the emphasis placed on a President’s ability to reshape the federal judiciary, it is worth remembering that mandatory retirement ages (which exist in all but three states) give governors or legislatures even more power to shape their respective state courts.

White House announces eleven new district court nominees

President Trump nominated eleven people to federal district judgeships yesterday, covering districts in Alabama, Georgia, North Carolina, Oklahoma, and Tennessee.  Once again, I am struck by the nominees’ breadth of experience. The group of eleven includes five attorneys in private practice, three state court judges, one United States Magistrate Judge, one law professor, and one state legislator.  Several of the nominees have practice experience in both the government and the private sector.

As a general matter, I have been very impressed with the quality of judicial nominees coming from the administration.  Hopefully Congress will hold swift confirmation hearings on the nominees and begin to cure the severe vacancy crisis in our federal district courts.

Philadelphia Bar’s judicial recommendations make an impact with voters

The Philadelphia Bar Association has published recommendations to voters on local judicial candidates for decades. This year, for the first time, it handed out a list of recommended candidates at selected polling places attempted to measure whether those recommendations made an impact.  The news was encouraging:

The Bar Association’s presence increased the gap between recommended and not recommended Common Pleas candidates by about 0.4 percent at the 41 polling locations, a significant impact in an election where winners needed just over 4 percent of the vote. Had the Bar Association placed volunteers all over the city, only one not-recommended judge would have won, as opposed to the three that actually did.

Some important caveats: the study was geographically limited, and several candidates who were not recommended were still elected (they were all placed in the first column on ballots). Moreover, at a time in American history when distrust of expertise is so high, some portion of the public seems likely to vote against the bar’s recommendations simply because they came from attorneys. And bar recommendations are only needed because Pennsylvania continues to insist on electing its judges in the first place. But overall, this is good news. I hope the bar association can come up with the resources to expand its distribution program for the next election cycle.

Unpacking the latest in the Maire Whelan controversy: proposed judicial appointments bill panned, government at risk

The controversial appointment of Maire Whelan to Ireland’s Court of Appeal continues to ruffle the country’s new government.  This week, Transport Minister Shane Ross proposed a bill to create a new Judicial Appointments Commission.  The new commission would have a majority of non-lawyer members, and would be chaired by a non-lawyer.  The commission would select final nominees, who would then be chosen by the government.

The bill immediately came under fire from Fianna Fail, the political party whose support is necessary to uphold the government’s confidence and supply agreement. The proposal was also publicly criticized by prominent members of the judiciary.

Continue reading “Unpacking the latest in the Maire Whelan controversy: proposed judicial appointments bill panned, government at risk”

North Carolina Chief Justice pushes merit selection for state judges

Speaking to the North Carolina Bar Association on Saturday, Chief Justice Mark Martin called for merit selection of all North Carolina judges:

Martin proposed that retention elections for Supreme Court and Court of Appeals judges be held statewide and voters in individual judicial districts decide on District Court and Superior Court judges. The elections would be held after each term of office, which Martin said could be eight years or some other period.

This is an extraordinary statement, even in light of the ugly tug-of-war between North Carolina’s governor and state legislature over judicial selection in the last few months.  With most state judges ascending to the bench through an electoral process, his call for merit selection would remove the very system that gave him and his colleagues personal and professional success.

But that, of course, is exactly the point.  The North Carolina system is broken, and whatever democratic benefits direct elections of judges may serve now seem overshadowed by concerns that may reduce the judiciary’s public legitimacy.  Chief Justice Martin’s call for merit selection was a brave first step toward a better system of justice in the state.

Irish parliamentary debate over Maire Whelan appointment “extremely heated”

This blog has been closely following the appointment of former Irish Attorney General Maire Whelan to that country’s Court of Appeal last week, which has engendered enough controversy to threaten to bring down the new government.  Whelan accepted her appointment on Monday, but that hardly ended the matter.  On Wednesday night, the Dail (Ireland’s parliament) held a lengthy debate over the propriety of the appointment.  According to one story:

A two-hour debate was held in the Dáil to discuss the appointment last night.

It became extremely heated.

New Minister for Justice Charlie Flanagan said a new bill was part of the government’s aim of “entirely reforming the judicial appointment system”.

Jim O’Callaghan dismissed the claim that Cabinet confidentiality prevented the answering of essential questions on the matter.

Sinn Féin’s Mary Lou McDonald, meanwhile, said that Micheál Martin – who wasn’t present for the debate – had serious questions to answer based on a telephone call he had with the Taoiseach on the matter last Sunday.

She questioned whether Martin attempted to use his influence on the government to prevent Whelan being appointed.

Labour leader Brendan Howlin took aim at the Independent Alliance who, he claimed, “clapped through an appointment that they now oppose”.

Clare Daly said the appointment was legal, but “political”.

Mattie McGrath said “new politics, my foot”.

Sinn Féin’s Jonathan O’Brien got into a war of words with Minister Flanagan, after asking how many others applied for the role.

Today, Taoiseach Leo Varadkar was asked if the situation had affected Fine Gael and Fianna Fáil’s confidence and supply arrangement. “Obviously the week that has gone by I don’t think has been helpful for either party,” he said. “But we have a written agreement.”

We’ll continue to watch how this plays out.

Update on the Maire Whelan controversy in Ireland

The controversial appointment of former Attorney General Maire Whelan to Ireland’s Court of Appeal last week continues to draw headlines. Minority parties in the government have alleged several improprieties with the appointment, including that Whelan never formally applied for the post through the Judicial Appointment Advisory Board, and that she remained in the Cabinet meeting while her appointment was being debated.

Continue reading “Update on the Maire Whelan controversy in Ireland”