Florida Amendment 5: Merit selection but requiring Senate confirmation of Supreme Court picks. What do other states do?

Florida’s Amendment 5, like Arizona’s Proposition 115, makes a series of changes to the judicial branch. One such element involves judicial selection, specifically for the state’s Supreme Court.

Florida’s current merit selection

Since the 1970s, Florida’s appellate courts have used a merit selection system, spelled out for the most part in Article 5, Sections 10 & 11 of the state constitution. The system sets up merit selection commissions for the supreme court and one for each of the state’s district courts of appeal. Upon a vacancy, the commission for the applicable court meets and submits anywhere from 3 to 6 names to the governor to fill the vacancy. After the pick, the person serves for a short time and then is up for a yes/no retention election to serve a full term.

Amendment 5, among other things, would change the process for vacancies on the Supreme Court by requiring that after the governor makes a pick from the 3-6 names, the individual chosen be subject to Senate confirmation. The senate is authorized under Amendment 5 to call itself back into session and has 90 days to vote on the individual; if they fail to vote “the justice shall be deemed confirmed.” If the senate rejects the individual, the supreme court judicial nominating commission must go back and again submit 3-6 names to the governor (the person rejected cannot be one of the names).

How other merit selection states operate

20 states make use of a constitution-based or statute-based merit selection system for their initial selection to their court (and in the case of Oklahoma, courts) of last resort: Alaska, Arizona, Colorado, Connecticut, Florida, Hawaii, Indiana, Iowa, Kansas, Missouri, Nebraska, New Mexico, New York, Oklahoma, Rhode Island, South Dakota, Tennessee,  Utah, Vermont, and Wyoming.

Amendment 5: “Each appointment of a justice of the supreme court is subject to confirmation by the senate.”

Of these 20 states, only six provide for legislative confirmation. Hawaii, New York (court of last resort only), Rhode Island (trial judges only), Utah and Vermont require Senate confirmation. Connecticut and Rhode Island (court of last resort only) require House and Senate confirmation.

Amendment 5: “The senate may sit for the purpose of confirmation regardless of whether the house of representatives is in session or not.”

The constitutions of Hawaii (Art. 3, Sec. 10) and Utah (Art. VIII, Sec. 3)  have provisions allowing the Senate to call itself back into session specifically for confirmation purposes, although Hawaii does require two-thirds of the members of the senate write a letter to that effect for the session to be called. Connecticut’s constitution also allows the legislature generally to call itself back in “at such other times as the general assembly shall judge necessary” (Art. III) either on petition by the members or at the direction of the presiding officers or the house and senate (§ 2-6 and 2-7)

New York’s Senate can rely on a statute (Legislative Law § 34) permitting it to call itself back into session for confirmation.

According to the National Conference of State Legislatures, Rhode Island and Vermont have no provision for the legislature calling itself back into session other than by proclamation or direction of the governor.

Amendment 5: “If the senate fails to vote on the appointment of a justice within 90 days, the justice shall be deemed confirmed.”

This is similar to Hawaii’s constitution (Art. 6, Sec. 3) which gives the Senate 30 days to vote or else the appointment is deemed confirmed.

In contrast, Utah’s constitution (Art. VIII, Sec. 8(3)) provides for 60 days for confirmation or the nominee is considered rejected. Rhode Island has a similar statute (§ 8-16.1-5(c) and § 8-16.1-6(c)) which give separate time frames: 60 days for Supreme Court & 90 days for trial courts. Failure to meet the deadlines means the names are rejected.

New York  statute (Judiciary Law § 68 (3) & (4)) provides “The senate shall confirm or reject such appointment no later than thirty days after receipt of the nomination from the governor” but then goes to say (Judiciary Law § 68 (5)) “The failure of any officer or body to perform any act within a limitation of time established by this section shall not invalidate any appointment to the office of chief judge or associate judge of the court of appeals.” Thus failure to meet the deadline does not appear to result in automatic rejection or confirmation.

The remaining states (Connecticut and Vermont) do not appear to have time limits for confirmations.

Amendment 5: “If the senate votes to not confirm the appointment, the supreme court judicial nominating commission shall reconvene as though a new vacancy had occurred but may not renominate any person whose prior appointment to fill the same vacancy was not confirmed by the senate.”

Utah, like the Florida proposal, restarts the entire nominating process upon Senate rejection of a nominee (Art. VIII, Sec. 8(3)): “If the Senate fails to approve the appointment, the office shall be considered vacant and a new nominating process shall commence.”) New York’s statute on the subject (Judiciary Law § 68 (4)) says “A vacancy shall be deemed to occur upon the rejection by the senate of such an appointment”. Thus, it appears the merit selection process would have to be restarted. Given that every nominee since the process was created in 1977 has been confirmed by the Senate, the issue hasn’t come up.

Contrast this with Hawaii (Art. 6, Sec. 3), which requires the same list be reused. Such an instance occurred in August 2010: Katherine Leonard was rejected by the Hawaii Senate to serve as Chief Justice of the state’s Supreme Court. Associate Justice Mark Recktenwald, also on the list of 6 names sent to then-Governor Linda Lingle, was confirmed in September of that year. Connecticut’s statute (51-44a(h)(1)) allows for the Governor to return to the list submitted by the Judicial Selection Commission.

Rhode Island makes use of two separate methods. With respect to the Supreme Court, § 8-16.1-5(c) requires the process restart as is proposed in Florida. Lower court selections, however, are treated differently; rejection does cause the judicial nominating commission to send another set of names to the Governor under §8-16.1-6(4)(c). A separate provision of law (§8-16.1-6 (3) and (4)) also makes eligible any person who in the prior 5 years had been submitted to the governor for a previous vacancy on the same court.

It is not at all clear what occurs in Vermont if there is a rejection.

Update 8/29/12 @ 11:57 AM. Added clarifying info on NY and added slew of links.

Update 8/30/12 @ 4:58 PM. Added that it is not clear what happens in VT if there is a rejection.