Several weeks ago I looked at the historical development of why some states have legislative involvement in judicial confirmation for their appellate courts and whether it was only the state’s senate that had a role or if it was a joint process. To reiterate, one of the big presses in the last year has been to put into place something akin to the “federal model” of senate (only) confirmation. But unlike the federal model, which includes life tenure, almost all these proposals include a reconfirmation at some point.
It should be noted that of the 11 states that give their legislature some role in the confirmation of appellate judges:
- 6 give at least some appellate judges a decade or more on the bench between reconfirmations: Delaware (12 years), Hawaii (10 years), South Carolina (10 years), Utah (Supreme Court: 10 years), Virginia (Supreme Court: 12 years), and New York (Court of Appeals: 14 years)
- 3 give reconfirmation to the House and Senate: Connecticut, South Carolina, and Virginia
- 3 remove the legislature outright from reconfirmation: Hawaii (judicial nominating commission); Maryland and Utah (retention election)
- 2 at least have the option of lifetime or near-lifetime appointment: Rhode Island (life) and New Jersey (until 70 after reconfirmation)
Roles of legislatures in appellate judicial re-confirmation
Connecticut: 8 year term for Supreme Court and Appellate Court. Judicial Selection Commission evaluates incumbent judge, with statutory presumption “that each incumbent judge who seeks reappointment to the same court qualifies for retention in judicial office” and provides burden on commission to demonstrate otherwise (see 51-44a (e) and (f), of the Connecticut General Statutes). Commission sends reappoint/don’t reappoint recommendation to Governor who renominates incumbent judge. Legislature jointly reconfirms.
Delaware: 12 year term for the Supreme Court. Governor renominates. Senate reconfirms.
Hawaii: 10 year term for Supreme Court and Intermediate Appellate Court. Judicial selection commission reappoints.
Maine: 7 year term for Supreme Judicial Court. Governor renominates. Joint House/Senate legislative committee recommends reconfirmation or rejection. That recommendation is binding unless the Senate overrides with 2/3 vote.
Maryland: 1 year (at least) initial term for Court of Appeals and Court of Special Appeals. Yes/no retention election. 10 year subsequent term.
New Jersey: 7 year initial term. Governor renominates. Senate reconfirms. Service until 70 for subsequent term.
New York (Court of Appeals, state’s court of last resort): 14 year term for Court of Appeals. Commission on Judicial Nomination resubmits names along incumbent’s to Governor. Governor renominates incumbent or nominates new person. Senate confirms or reconfirms.
NOTE: the state’s primary intermediate appellate court, the Appellate Division, has no role for the legislature in terms of reconfirmation. The Governor elevates and may reappoint to the Appellate Division from the judges elected locally in partisan elections to the general jurisdiction court (confusingly called the “Supreme Court”). For example, when his 14 year term in the trial court ended in 2011, the Hon. Henry J. Scudder had to run for re-election and then be reappointed back to the Appellate Division, Fourth Department (see story here).
Rhode Island: N/A (Serve for life)
South Carolina: 10 year term for the Supreme Court, 6 year term for the Court of Appeals. Judicial Merit Selection Commission evaluates incumbent judge and all others seeking position. Commission sends names to Legislature. Legislature jointly reappoints or appoints someone else. (See Title 2, Chapter 19 S.C. Code)
Utah: 3 year (at least) initial term. Yes/no retention election. 10 year subsequent term for Supreme Court, 6 year subsequent term for Court of Appeals.
Virginia: 12 year term for the Supreme Court, 6 year term for the Court of Appeals. Legislature jointly reappoints or appoints someone else.