Tennessee Amendment 2: Only 13 states give legislature any role in selection of appellate judges, only 5 give both chambers a say

Yesterday I focused on the role of the governor in the selection of appellate judges in the 50 states and compared/contrasted that with Tennessee’s Amendment 2. Today, I’ll be focusing on the second provision of that amendment: the legislature.

The second clause of Tennessee’s Amendment 2 vests with the Legislature the power to confirm those individuals appointed by the governor to an appellate judgeship

Judges of the Supreme Court or any intermediate appellate court…shall be confirmed by the Legislature

Only 13 states give the legislature any role in the selection of appellate judges, but they do so in ways that may (or may not) apply to Tennessee should Amendment 2 be adopted.

Two-chamber approval/activity

Connecticut: House and Senate via Joint Resolution adopted in one chamber then another.

Under Art. XX adopted in 1982, “The judges of the supreme court, of the appellate court and of the superior court shall, upon nomination by the governor, be appointed by the general assembly in such manner as shall by law be prescribed.” In practice this has meant that a Joint Resolution is introduced “confirming the nomination of [Name] of [Town]”. For example, when Appellate Court Judge Richard A. Robinson was elevated to the Supreme Court in 2014, his confirmation took the form of a House Joint Resolution 15 (“That the nomination by His Excellency, the Governor, of the Honorable Richard A. Robinson of Stratford, to be an Associate Judge of the Supreme Court…”) Judge Robinson testified before the legislature’s Joint Judiciary Committee (made up of House and Senate members), the resolution was forwarded on and adopted by the House followed shortly thereafter by the Senate later that same day.

Maine: Governor’s Senate Communication sent to Joint House and Senate committee, Senate “confirms” by failing to override joint committee recommendation by 2/3rds vote.

Art. V, Sec. 8 of the state constitution provides for a very detailed process of confirmation and a unique power-sharing arrangement between the House and Senate:

Procedure for confirmation.  The procedure for confirmation shall be as follows:  an appropriate legislative committee comprised of members of both houses in reasonable proportion to their membership as provided by law shall recommend confirmation or denial by majority vote of committee members present and voting.  The committee recommendation shall be reviewed by the Senate and upon review shall become final action of confirmation or denial unless the Senate by vote of 2/3 of those members present and voting overrides the committee recommendation.  The Senate vote shall be by the yeas and nays.

That committee is the Joint Standing Committee on Judiciary (no “the” in title) made up of 17 members: 3 Senate and 14 House (one non-voting) or 18% vs. 82%, which is roughly proportional to the Senate and House ratios (35 vs. 154 or 19% vs. 81%)

Under the legislature’s Joint Rules 503-505 and 3 M.R.S.A. 151-159 the Senate receives a Communication (SC) from the Governor informing them of the nomination. The Joint Standing Committee then holds a public hearing and votes. The Senate then takes up a motion to override the Joint Standing Committee’s vote. For example SC 772 of 2014, confirmed Andrew M. Mead to the Supreme Judicial Court by rejecting unanimously a motion that the confirmation recommended by the joint committee be overridden.

Rhode Island: Communication from Governor, House and Senate confirm separately.

Rhode Island is unique in that it requires two-chamber confirmation for the state’s supreme court only; lower courts (including a court of appeals, if it were ever created) would require only Senate confirmation.

Specifically, under Art. X, Sec. 4 of the state constitution “The governor shall fill any vacancy of any justice of the Rhode Island Supreme Court by nominating…by and with the advice and consent of the senate, and by and with the separate advice and consent of the house of representatives, shall appoint said person as a justice of the Rhode Island Supreme Court.”

In recent times this takes the form of a communication from the governor that

I have the honor to inform you that in accordance with the provisions of Article 10, Section 4 of the Rhode Island Constitution entitled Judicial Selection, I have made the following appointment as Associate [or Chief] Justice of the Rhode Island Supreme Court [Name of Nominee].

The associate justice/chief justice being replaced is also specified (see for example page 28 here). The communication is then sent to the House and Senate Judiciary Committee which vote to recommend confirmation. That is then forwarded to the full House and Senate separately; for example when Associate Justice Gilbert V. Indeglia was confirmed in 2010 the House voted its advice and consent on April 12, the Senate April 15.

South Carolina: Election by Joint Convention of House and Senate (Governor not involved)

South Carolina stands alone in providing that election of judges of the state’s appellate courts are done in joint convention. Put simply, the House and Senate vote together, with a senators vote equal and the same as a house member’s vote, to fill seats in the Supreme Court and Court of Appeals.

Under Art. 5, Secs. 3 & 8 of the state constitution “The members of the Supreme Court [or Court of Appeals] shall be elected by a joint public vote of the General Assembly…” Under the state’s judicial selection system (Art. 5, Sec. 27) when a vacancy occurs or a term is set to expire the Judicial Merit Selection Commission opens up an application and review process. The Commission then reduces the pool of applicants to those “qualified and nominated” and a Concurrent Resolution then adopted to set the date/time/place for the election. For example, HB 4355 of 2014 read in operative part

Be it resolved by the House of Representatives, the Senate concurring:

That the Senate and the House of Representatives shall meet in joint assembly in the Hall of the House of Representatives Wednesday, February 5, 2014, at noon to elect a successor to the Honorable Jean Hoefer Toal, chief justice of the Supreme Court, whose term will expire July 31, 2014;

The votes are then cast with a simple majority winning. Because there are 124 members of the House and 46 in the Senate, the House as a body will always have an advantage over the Senate. A tabulation of the House/Senate vote for the Chief Justice position voted on in February 2014 can be found here.

Virginia: House and Senate adopt same resolution/same names

As in South Carolina, Virginia offers no gubernatorial input when it comes to full-term appellate judgeships. Art. VI, Sec. 7 of the state constitution provides “The justices of the Supreme Court [and judges of all other courts of record, including the Court of Appeals] shall be chosen by the vote of a majority of the members elected to each house of the General Assembly…”

This has taken on the form of dueling resolutions; the House and Senate pass resolutions with a list of names and the days the terms of office start. Where the names and start of terms are identical, the judge is elected. Where they differ, a conference committee hashes out the differences. For example HR 74 and SR 17 of 2014 were identical, each naming the same three judges to the Court of Appeals and when their terms started.

This somewhat fell apart in 2011 when the House (controlled by Republicans) and the Senate (controlled by Democrats) could not come up with the same names. When two seats opened on the Court of Appeals in 2012, the House balked at a Senate pick for one of the two spots as I discussed here and here at the time.

One-chamber (Senate) approval/activity

Delaware: Senate confirms, no resolution.

Under Art. IV, Sec. 3 of the state constitution “The Justices of the Supreme Court…shall be appointed by the Governor, by and with the consent of a majority of all the members elected to the Senate… ” In recent practice this has meant a hearing before the Senate Executive (not Judiciary) Committee which itself is made of all 21 members of the Senate, as occurred earlier this year when Karen Valihura was confirmed as a justice of the state’s Supreme Court (legislative data here).

Hawaii: Senate confirms, Governor’s Message used.

Under Art. 6, Sec. 3 of the state constitution “The governor, with the consent of the senate, shall fill a vacancy in the office of the chief justice, supreme court [and] intermediate appellate court…” This takes the form of a Governor’s Message (GM) that is then referred to the Senate Committee on Judiciary and Labor and, if approved, advanced to the full Senate. A recent example of this from March 2013 was GM 580, “Submitting for consideration and confirmation as Associate Justice to the Hawaii Supreme Court, Gubernatorial Nominee, Michael D. Wilson, for a term to expire in ten years.”

Kansas (Court of Appeals only): Governor nominates, Senate confirms.

The Kansas process is relatively new; until last year the state senate played no role (for details of how and why the older merit selection system was abandoned, see coverage here). Because the court is a creation of statute alone, references to is judicial selection method are also only statutory. Under K.S.A. 20-3020 the governor sent a list of nominees to the Senate, including for the Court of Appeals. The nomination is then sent to the Senate Committee on Confirmation Oversight which submitted a report to the Senate in favor of confirmation. The report is then approved and a separate vote on confirmation takes place. This process has only occurred once so far (Caleb Stegall); details of that process can be found here, here, and here.

Maryland: Senate committee reports, Senate confirms.

Under Art. IV, Sec. 5A(b) “Upon the occurrence of a vacancy [in the office of a judge of an appellate court] the Governor shall appoint, by and with the advice and consent of the Senate, a person duly qualified to fill said office…” This takes the form of a communication from the Governor, but is it the report of the Senate Executive Nominations Committee that voted on, specifically the nominees one by one, in the form of “Question is shall the Senate advise and consent to the nominations of the Chief Executive?” For example, when Judge Shirley M. Watts was named Chief Judge of the Court of Appeals in early 2014 it came as approval Senate Executive Nominations Committee Report No. 1, Nominee #1.

New Jersey (Supreme Court only): Governor files Notice of Intent, Senate confirms.

Art. VI, Sec. VI of the state constitution provides “The Governor shall nominate and appoint, with the advice and consent of the Senate, the Chief Justice and associate justices of the Supreme Court [and] the Judges of the Superior Court…” (As noted yesterday, the judges of the intermediate appellate court are elevated from the Superior Court’s trial divisions, although neither the governor nor the legislature plays a role in that). The process takes the form of the Governor filing a Notice of Intent to nominate X of Town Y to office Z. So, for example, in 2014 a notice of intent was filed for Lee A. Solomon of Haddonfield to be an Associate Justice of the New Jersey Supreme Court. A hearing was held in the Senate Judiciary Committee and the nomination sent to the full Senate.

New York (Court of Appeals, state’s court of last resort, only): Senate committee reports, Senate confirms.

Art. VI, Sec. 2(e) provides “The governor shall appoint, with the advice and consent of the senate, from among those recommended by the judicial nominating commission, a person to fill the office of chief judge or associate judge, as the case may be, whenever a vacancy occurs in the court of appeals…” (For the state’s intermediate appellate courts, the legislature plays no role). The Senate receives the nomination, refers it to the Judiciary Committee, which then issues a report. That report is then voted on by the full Senate (see video here starting at 1:22).

Utah: Communication from Governor, Senate confirms.

Art. VII, Sec. 8 of the Utah Constitution provides “When a vacancy occurs in a court of record, the governor shall fill the vacancy by appointment…The Senate shall consider and render a decision on each judicial appointment…” This takes the form of a Communication from the Governor appointing the judge to the office. The Senate Judicial Confirmation committee then meets and recommends for or against confirmation. Finally, a motion is made before the full Senate to consent to the Governor’s appointment. For an example from 2010 and the appointment and confirmation of Judge Stephen Roth, see pages 1-2 here.

Vermont: Governor nominates, Senate confirms.

Art. 32 of the Vermont Constitution provides that “The Governor, with the advice and consent of the Senate, shall fill a vacancy in the office of the Chief justice of the State, associate justice of the Supreme Court…” The nomination is sent to the Senate Judiciary Committee which then forwards its recommendation to the full Senate. For an example of a recent process, see pages 4-5 here regarding the confirmation of Justice Beth Robinson to the Supreme Court.


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