A big trend in recent weeks, and for that matter years, has been to target for elimination of merit selection systems for selecting judges (see here). A related often parallel set of bills seek to interject Senate confirmation of whomever the governor, working off the list of names given by a nominating commission, appoints. These efforts are proving as or more effective in gaining legislative approval that attempts to outright end merit selection. However, somewhat interestingly, most such bills are thus far being introduced and active in state senates with less interest shown by the lower chambers, who would have no role in any such confirmation process.
Earlier today, for example, the Florida Senate Judiciary Committee approved SJR 1664 which, while maintaining the state’s existing merit selection system for appellate judges, would add to the state’s constitution a requirement those chosen for the supreme court only be approved by the state’s senate as well. Interestingly, unlike other similar bills (some discussed below), there is no authorization for the Senate to bring itself into session in case a confirmation is needed. However the state’s constitution does allow for special sessions to be called by the governor and “convened as provided by law”. Presumably this later provision would be used if the constitutional amendment itself were approved by Florida voters.
Similar to Florida’s SJR 1664, Oklahoma’s SB 621 would require senate confirmation, but does not include a provision allowing the senate to convene itself for those purposes. The state’s constitution allows the entire legislature to be called back in by two-thirds of both chambers, but it is not clear of that means two-thirds of the senate can call just itself back in. SB 621 was approved by the Senate on March 8.
Arizona SCR 1040 massively restructures, but does not formally end, the merit selection system in the state. Included is a provision requiring senate confirmation. The senate president or a majority of senators are explicitly authorized to convene the chamber for the confirmation. Moreover, there is a built in presumption and default of confirmation: the senate must explicitly reject the appointee within 60 days or the person takes judicial office “as if the appointee had been confirmed. ” The bill also ends retention elections and puts in place a system of reappointment and reconfirmation, again with the same 60-days-to-reject rule. SCR 1040 was also approved by the Senate on March 8.
Finally, Pennsylvania is once again considering changing to a merit selection system for its appellate courts with a senate confirmation provision. SB 842 would be the implementing statutes for the constitutional amendment in SB 843, if approved. As for senate reconvening, the state’s constitution is already mostly prepared. The state’s governor may fill a judicial vacancy caused by death, resignation, etc. and the senate must confirm when it comes back into session (if recessed or adjourned) within a certain number of days or else the appointment is deemed confirmed. The same provisions would be duplicated for cases involving an appellate merit selection system.
Not only would there be a presumption or default of confirmation, but should the senate reject three nominations made for a specific vacancy, the nominating commission itself, without interference by the governor or the senate, would pick a fourth person who would automatically take office (no appointment or confirmation necessary). The two Pennsylvania bills were introduced March 15 and are pending in the Senate Judiciary Committee.
As I noted at the start, senate-confirmation bills are often dead-letters in the various houses/lower chambers in the states. Bills going nowhere so far include Arizona HCR 2020, Iowa HB 429 and HJR 12, Kansas HCR 5015, and Oklahoma HJR 1009. All include senate confirmation in addition to, or in lieu of, merit selection. In addition, a Rhode Island House bill (HB 5675) would transfer the existing power to confirm from the Senate to the House.
That said, some senate-confirmation bills are finding house approval.
Kansas HB 2101 ends merit selection system for the state’s court of appeals judges and instead creates a governor appoints/senate confirms system. The senate president could call the senate into session for the confirmation process. The bill was approved by the full House February 25.
A similar Florida House bill (HJR 1097) would outright end merit selection for appellate judges and make use of senate confirmation only was approved by the House Judiciary Committee’s Civil Justice Subcommittee on March 17.
