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The Endless War Over How Judges Are Selected

Across the country, legislators are trying to gain more control over their states' courts. Many of the efforts are from Republicans aiming to diminish the role of judicial nominating commissions.

Florida Gov. Ron DeSantis talking at a press conference.
Florida Gov. Ron DeSantis controls judicial nominating commissions, a situation that Democrats want to change. (Joe Burbank/Orlando Sentinel/TNS)
TNS
State legislators across the country are proposing fundamental changes to how judges are chosen. Some pending bills would end judicial elections in favor of appointment. But in several states, Republicans want to limit or end the role of judicial nominating commissions in choosing nominees for judgeships.

The bills are part of a recent trend of legislators trying to gain more control over courts. The Brennan Center for Justice counted 42 bills in the 2020 legislative sessions that would have diminished "the role or independence of courts" and reported that 11 of them would have changed how judges are chosen, giving politicians more control or limiting the role of nominating commissions.

Only one of those 42 bills made it all the way through the legislative process: a proposed constitutional amendment in Pennsylvania to elect appellate judges by district rather than statewide, with the Legislature drawing the judicial districts. The Republican-backed measure would have to be approved again in the current legislative session before going on the ballot.

But many of the bills that failed to pass last year had been proposed in previous legislative sessions and are back on policymakers' agendas, along with new efforts to change judicial selection.

In Oklahoma, for example, legislators have proposed a constitutional amendment that would have the commission from which the governor nominates judges merely decide which applicants are qualified; the state constitution now requires the commission to compose a list of the most qualified applicants. Republican Gov. Kevin Stitt has suggested that he would like to directly appoint justices, without having to choose from the commission's list. But Stitt has seemed pleased with his appointees so far: When he nominated his first justice to the Oklahoma Supreme Court in 2019, Stitt said that he was fulfilling a campaign pledge to appoint a justice who opposed abortion. The governor will soon replace a retiring justice, giving the court a majority of GOP appointees.

In neighboring Missouri, Republican Sen. Dan Hegeman has also proposed an amendment to minimize the role of his state's judicial nominating commission. Similar amendments were proposed in the last five legislative sessions. Republicans in recent years have criticized the Missouri Supreme Court for decisions striking down laws that violated the right to vote under the state constitution. As in Oklahoma, an upcoming appointment by Gov. Mike Parson will create a majority of GOP-appointed justices.

Republican lawmakers in Indiana are pushing a constitutional amendment that would make major changes to the state's system for selecting appellate judges. Among other things, the measure would give legislators more appointments to the state's nominating commission, require that the governor's nominees be confirmed by the state Senate, and end retention elections. New judges would have to be reconfirmed by the state House after two years on the bench and then again every 10 years. The measure, introduced in January, quickly drew opposition from the state's legal establishment.

In Montana, Republican Rep. Barry Usher has introduced legislation that would ask voters to approve a constitutional amendment to elect Supreme Court justices in seven districts, which are laid out in the bill, rather than statewide. A similar effort in 2011 was struck down by the state high court. Another Montana bill, proposed by Republican Sen. Keith Regier, would eliminate that state's nominating commission. That would leave Republican Gov. Greg Gianforte and the GOP-led state Senate to appoint and confirm judges to fill vacancies, which could have an impact on ongoing conflicts over mining and water pollution. A similar bill is pending in Alaska, where the high court has also protected environmental rights. Republican Sen. Mike Shower sponsored the measure.

In South Carolina, one of only two states where judges are chosen by the legislature, a GOP-sponsored constitutional amendment would end the role of the commission that screens would-be judges and compiles a list of the most qualified. Another proposal would limit the commission to merely making sure that applicants meet the minimum qualifications.

The commission was created in 1997, at a time when every member of the South Carolina Supreme Court was a former state legislator. Douglas Keith of the Brennan Center for Justice, an expert in judicial selection, warned that legislative appointment can lead to nepotism. He noted that in South Carolina and Virginia, the only other state where legislators choose judges, "legislators have appointed their relatives to judgeships." Addressing that concern, a pending South Carolina bill would ban the appointment of legislators' relatives.

Not all of the efforts to change the way judges are selected have come from the GOP side of the aisle. In Florida, where Republicans in 2001 gave the governor control over nominating commissions, Democrats have introduced a bill to give the governor fewer commission appointments.

To choose judges and staff his commission, Republican Gov. Ron DeSantis has relied on local chapters of the Federalist Society, the conservative legal group whose members occupy seats on high courts around the country. The Democrats' proposal would have the governor choosing three commissioners, with the state bar association choosing the same number and those six commissioners choosing three more. The bill would also require the commission to prioritize diversity. The sponsor, Democratic Sen. Perry Thurston, said that "Floridians expect better than a governor's whim when it comes to appointing the men and women who have the power to interpret laws."

While most of the legislative action around the country has focused on limiting the role of judicial screening commissions, in some states there are efforts to move away from electing judges. Democratic legislators in New York and Maryland, for example, have proposed bills to create commissions to screen for the most qualified applicants for appointment to trial courts.

In Texas, some conservatives and progressives have long agreed on the need for a change from partisan judicial elections to an appointment system. Republican Gov. Greg Abbott adopted this stance in 2018, just after a diverse slate of Democrats swept judicial elections in Houston. A GOP legislator introduced an amendment in early 2019 that would have switched to appointments in large urban counties. When the amendment stalled in the Legislature, lawmakers set up a commission to study the issue. That panel issued a report in December but deadlocked on the issue of whether to recommend an appointment system.

It's a safe bet that the issue will come up again in Texas, particularly if Democrats become more competitive in statewide judicial races, and the study commission has asked legislators to renew its term.

It's a safe bet that the issue will come up again in Texas, particularly if Democrats become more competitive in statewide judicial races, and the study commission has asked legislators to renew its term. And it's an equally safe bet that legislatures in Texas and elsewhere will be grappling for years to come with efforts to change how judges are chosen, efforts that are often motivated by the goal of reshaping the courts with the power to interpret our state constitutions.

Billy Corriher is a writer whose work focuses on judges, voting rights and the courts. He can be reached at billy@thesupremecourts.org.
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