Legislators and bar association weigh in on Indiana merit selection plan

We previously reported that Indiana legislators are considering a merit selection plan for the judges of Marion County (the Indianapolis area), in light of a Seventh Circuit decision holding the previous election slating process unconstitutional.  Recently, both state legislators and the Indianapolis Bar Association have offered their own opinions of the proposed legislation.



Indiana legislature considers expanding merit selection for state judges

Merit selection refers to a method of choosing state judges through a nominating commission, which typically selects three candidates and forwards the names to the governor for final selection.  Judges chosen through merit selection are therefore pre-vetted for qualifications, skill, and judicial temperament.  Most states with merit selection protect accountability to the public by appointing judges to set terms on the bench, after which they must seek reappointment or retention before the voters.

I have long championed merit selection as the best process for balancing quality judges and public accountability.  The process is not perfect, but if done thoughtfully — with a balanced and inclusive nominating commission, sufficiently lengthy terms to allow a judge to grow professionally on the bench, and retention elections coupled with a transparent judicial evaluation process — they have proven to be very effective.

Many states around the country choose some or all of their judges through merit selection.  And Indiana, which uses merit selection for trial judges in three large counties (Allen, Lake, and St. Joseph), is now poised to expand the system to Marion County as well.

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North Carolina House overrides veto on partisan judicial elections bill

As I reported previously, North Carolina Governor Roy Cooper vetoed a bill that would require state trial court elections to be partisan.  Candidates would have to participate in party primaries and run under a specific party affiliation.  Disappointingly, the state House of Representatives voted to override the veto yesterday.  The issue now moves to the state Senate.

UPDATE: The Senate has completed the veto override.  All North Carolina judicial elections will be partisan going forward.

Leib and Brudney on legislative underwriting of judicial decisions

Over at Prawfsblawg, Ethan Leib has called attention to his new article (coauthored with James Brudney) on legislative underwrites: As the first part of the abstract explains:

This article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions as part of an interbranch dialogue when they disagree with judicial rulings and doctrine; they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites that reflect more collaborative dimensions of the interbranch dialogue. This article begins to fill that void, and in so doing it frames practical and theoretical lessons for legislative, judicial, and scholarly audiences.

This is a very interesting piece, and I encourage you to read the whole thing.  Lieb and Brudney identify an important area of communication and cooperation between the legislative and judicial branches.  Interbranch communication as a general matter is understudied, and (as the authors note) when it is examined, it it usually in the context of collisions between the branches.

I do wish Leib and Brudney had given more substantial credit (beyond a brief mention) to a little-known but important “statutory housekeeping” program initiated nearly thirty years ago by Robert Katzmann when he was still heading the Governance Institute (an arm of the Brookings Institution). Through that program, the federal appellate courts transmitted to Congress selected judicial opinions identifying problems in the text of a statute — for example, statutory provisions containing ambiguous language, or statutes whose text required the court to fill a gap to determine their appropriate scope. The transmissions were purely informational: the courts did not comment on the enclosed opinions other than to say they might be of interest, and Congress was under no obligation to make any modifications to the statute.  A 2007 review of the program concluded that Congress was making sufficient use of the opinions to justify the program’s continuation.

The program itself was the product of close collaboration between the federal courts, key members of Congress, the administrative staffs of both the judicial and legislative branches, and the Governance Institute. As importantly, it set the stage for open communications between the Congress and the judiciary that was reasonably benign and suspicion-free.  Given the judiciary’s reluctance to engage Congress directly on most matters unless expressly invited to do so, the housekeeping protocols allowed courts to flag important statutory glitches for legislators without concern that they would be viewed as overstepping their bounds.  It was, in a sense, the equivalent of pointing out that someone’s shoe is untied — a small gesture, typically meant to gently assist, but which could be viewed as suspicious or even mocking if a relationship is strained or unfamiliar.

The legislative underwriting that Leib and Brudney identify is broader in scope and much more ambitious than mere “housekeeping” measures.  Among other things, they imagine transmissions that travel not just from the courts to Congress, but back the other way.  This is fair enough, but the eventual success of any more expansive underwriting program will owe a significant debt to the groundwork laid by the “statutory housekeeping” program. By exchanging information and communications frequently when the stakes are small, both entities have begun to build the trust to communicate and collaborate when the stakes are larger.


Updates on cameras in the courtroom

This has been a busy week for policies governing the use of courtroom cameras.

  • Senators Charles Grassley (R-IA) and Dick Durbin (D-IN) introduced S.643, which I have seen alternately referred to as the Cameras in the Courtroom Act of 2017 or the Sunshine in the Courtroom Act of 2017.  The Act would require open proceedings in the United States Supreme Court to be televised.  Similar legislation has already been introduced in the House. Variations of this Act have been introduced for many years, without success.
  • Several media outlets declared this week “Sunshine Week,” leading to editorials calling for allowing cameras into both state and federal courtrooms.
  • On its own volition, the Third Circuit Court of Appeals has started posting video of its oral arguments online. The always terrific Howard Bashman has the details in a new column for the Legal Intelligencer. The Third Circuit’s press release, which provides more context for its decision to make videos available,  is here.

NC governor vetoes judicial election bill

I previously reported on a bill in the North Carolina legislature that would convert the state’s elections for trial judges into partisan races.  The practical effect would be that judicial candidates would first have to clear party primaries, and then would appear on the ballot with a party designation.

This was a bad idea, and Governor Roy Cooper has vetoed the bill.

Although Cooper is a Democrat and the North Carolina legislature is controlled by Republicans, the acknowledged inefficacy of partisan judicial elections is not itself a partisan issue.  Politicians and commentators from across the political spectrum agree that in the modern era, party labels for judicial candidates weaken the public legitimacy of the judiciary, offer little significant information to voters, and are at best extremely awkward for judges.  The North Carolina proposal was a step backward.

Intra-court feud brewing in Texas over online records access

For the past five years, Texas’s Office of Court Administration has worked to develop a statewide online database of court filings. The database, called re:SearchTX, covers all 254 counties in the state and is intended to provide a unified, centralized system for access to court filings, similar to the PACER system used by the federal courts. Texas Chief Justice Nathan Hecht has advocated for the new system, noting in particular its ability more quickly and inexpensively to self-represented litigants.

But a smooth launch of re:SearchTX has been stymied by the local courts themselves. And now a bill has been filed in the state House that would allow individual counties to opt out of the system, radically weakening its utility.

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