Bills to require senate confirmation of judicial nominees finding more approval in state senates than in state houses

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.

Mid-session update: 42 bills in 20 states seek to ban court use of sharia/international law (with list and links)

Welcome ABA Journal readers! This post has been updated, here.

We are about half way through the 2011 state legislative season and so far there have been 42 bills in 2011 to ban or otherwise restrict court references or use to sharia/international law.

Prior 2011 posts on the subject can be found here, here, and here.

Below is an update on the current (as of 3/14/11) status of such efforts. Hearings coming up this week include Alaska HB 88, Missouri HB 708, Missouri SB 308, and Nebraska LB 647.

Interestingly, some of the most recently filed bills (Iowa HB 489 filed March 2;  Maine HB 811 filed March 15; West Virginia HB 3220 filed February 21) now provide that foreign law cannot be the “primary factor which a court…shall consider”.

Continue reading Mid-session update: 42 bills in 20 states seek to ban court use of sharia/international law (with list and links)

OK: Bill would require judicial candidates post all written opinions online 60 days before election

Oklahoma’s legislature has been working overtime on changes and alterations to the state’s judicial selection system (see here). This week the state’s Senate also approved SB 22 which would require, effective November 2011, all judicial officers running for election make their written rulings and opinions available online at least 60 days prior to the election.

The bill gives the candidate some options of how the information can be posted. They can designate a web site, the full address of which must be included within the declaration of candidacy. Multiple candidates can share a website, but only if the information is separated by judge/justice.

Left unspecified is how far back the opinions and rulings would have to be kept. For example, several of the justices of the state’s supreme court and court of criminal appeals (the two courts of last resort in the state) have served for 30+ years as judges of both trial and appellate courts. Supreme Court Chief Justice Steven W. Taylor, for example, served as a District Judge and Associate District Judge for 20 years (March 1984- September 2004) and has served on the Supreme Court since. Court of Criminal Appeals Presiding Judge Gary L. Lumpkin has been on that court since January 1989, having previously served as seven years as a District Judge and Associate District Judge (1982-1989).

It was approved by the full Senate March 9 on a 30-13 vote.


In last seven days, bills to tweak, modify, or end merit selection advance in the IA House, AZ Senate, and OK Senate

Merit selection has been the focus of an exceptionally large number of bills this legislative year, and a even more surprising number have advanced in their respective chambers in the last seven days. The scope of the bills range from tweaks, to modifications, to outright abandonment of merit selection.


Iowa’s HB 242, requires the state’s governor appoint at least one district judicial nominating commission member from each county unless there are fewer counties than commissioners. Given that the commissions are five member panels, and only Judicial District 7 is a 5-county district, this has the effect of prohibiting any district nominating commission from having more that two members from the same county. It was approved on March 7, having bypassed any committee hearings, on a 98-0 vote.


Arizona SCR 1040 substantially rewrites, but does not end, the state’s merit selection system:

  1. Increases to 400,000 the population requirement for a county to have merit selection for judges (currently 250,000).
  2. Increases supreme court and superior court terms to 8 years.
  3. Strips state bar’s power to fill certain vacancies on judicial nominating commissions. Requires instead state bar submit 3 names for each state-bar vacancy on commission for governor’s approval and that a majority of the 3 must be the same political party as governor.
  4. Requires attorney-members of commissions have been member of bar at least five years.
  5. Removes requirement that governor’s appointments to commission be confirmed by senate.
  6. Provides of 13 members of appellate commission, none may be currently serving as a judge, not more than two of the members may be attorneys, not more than one member may be a retired judge, not more than nine members may be members of the same political party, and not more than six members may be residents of the same county.
  7. Provides supreme court *must* adopt any rules that the commissions vote for themselves, so long as they are lawful.
  8. Expands number of names to be submitted to governor for a vacancy from 3 to 6. If fewer than 6 people apply, all eligible names must be submitted
  9. Subjects all those selected by governor to senate confirmation.
  10. Ends retention elections. Provides that at end of term governor may reappoint and senate may reconfirm judge.

SCR 1040 was approved March 8 by the Senate on 19-11 vote.

Oklahoma SB 621 requires any appointment or reappointment by the Governor to fill a Judicial Office be confirmed by a majority of the Senate. SB 621 was approved March 8 by the Senate on 30-14 vote.

End Merit Selection

Oklahoma SJR 36 repeals Section 3 of Article VII-B of the Oklahoma Constitution establishing the Judicial Nominating Commission. IT amends Section 4 of Article VII-B dealing with the Judicial Nominating Commission and replaces with provisions allowing the governor, upon a judicial vacancy, to chose anyone subject to Senate confirmation.  If the Senate is not in session when an appointment is made, the Governor may call the Senate into special session no more than once per quarter to advise and consent on any such appointments.

SJR 36 was approved earlier this evening (March 9) on a 32-15 vote.


2011 on track to have most efforts to remove judges from office in recent memory

It is barely March, and already there have been more bills seeking the removal of judges in 2011 than in any year in recent memory. As I noted in a special December 2010 edition of Gavel to Gavel, while threats to impeach state court judges have increased, it has only been in the last several years that actual bills have been drafted and submitted.
All told, 10 judges (9 state, 1 federal) are the target of impeachment or removal efforts in the state legislatures this year. This is in addition to the threats to impeach Iowa’s supreme court justices made earlier in the year that have not materialized as articles of impeachment.

State Bill Form of removal Target Reason for removal request
Massachusetts HB 2172 Bill of address Supreme Judicial Court Chief Justice Roderick L. Ireland Unknown
Massachusetts HB 2172 Bill of address Supreme Judicial Court Justice Francis X. Spina Unknown
Massachusetts HB 2172 Bill of address Supreme Judicial Court Justice Judith A. Cowin Unknown
Massachusetts HB 2172 Bill of address Supreme Judicial Court Justice Robert J. Cordy Unknown
New Hampshire HR 7 Impeachment Marital Master Phillip Cross Decisions in custody/divorce cases
New Hampshire HR 7 Impeachment “any justice of the New Hampshire superior court” Decisions in custody/divorce cases
New Jersey SR 105 Impeachment Supreme Court Justice Roberto Rivera-Soto Refusal to vote in some cases
Oklahoma HR 1001 Request for removal by judicial disciplinary commission District Judge Thomas Bartheld Failure to reject negotiated plea bargain in child sex abuse case
Oklahoma HR 1005 Impeachment request to Congress U.S. District Court Judge Vickie Miles-LaGrange “Abuse of authority” for issuing an injunction against state’s sharia law ban
Oklahoma HR 1006 Request for removal by judicial disciplinary commission District Judge Tammy Bass-LeSure 36 felony counts, including four counts of perjury and 32 counts of fraudulent claim

Oklahoma: Fast track to ending merit selection in state?

It was not just Kansas acting to end merit selection last week. Oklahoma’s Senate Judiciary Committee approved SJR 36 fo 2011, which would end the state’s judicial nominating commission for appellate courts and allow the state’s governor to appoint any qualified person subject to  senate confirmation (additional coverage here, h/t Gavel Grab). As introduced, the judges so appointed would still be subject to retention election rather than re-confirmation or a contested election.

Today, the House Rules Committee announced it would take up its version (HJR 1009) March 2, possibly an indication the bill will bypass the subject matter jurisdiction committee (House Judiciary) altogether. Whereas the Senate version simply does away with any role for the state’s judicial nominating commission (JNC), the House version maintains the commission but makes their selections in effect, advisory. The governor “may appoint a person who is not one of the nominees to fill the vacancy.” Moreover, the House version retains a provision allowing the state’s chief justice to make the selection if the governor fails to do so for 60 days (the senate version jettisons this). Regardless of who picks, the individual chosen would be subject to senate confirmation and later retention elections.

This quick action may seem like a fast track, but it has been several years in building. 3 years ago SJR 36 of 2008 as introduced read very similar to SJR 36 of 2011, eliminating the judicial nominating commission outright and putting in place senate confirmation.  The House, however, heavily modified the bill. Their version would have kept the judicial nominating commission for the appellate courts and required vacancies (due to death, resignation, etc.) in the state’s trial and worker’s compensation court be subject to senate confirmation. Moreover, the House version read “Any appointment by the Governor to fill a Judicial Office shall be confirmed by a majority of the Senate.” (emphasis added) However, as noted above if the governor failed to make a nomination within 60 days, the chief justice would make the appointment and, as written in the House amendment, without the need for senate confirmation.  It is unclear if this was a glitch in drafting or by design. Regardless, the Senate rejected the House amendment and while a conference committee was appointed, time ran out before they could reach a compromise.

In 2009 it came back as HJR 1041. As introduced, it read almost exactly like SJR 36 the year before (senate confirmation for all judicial vacancies). What passed, however, was pared down again by the House to just senate confirmation for worker’s compensation court judges only (in OK, the worker’s compensation court is a court within the judiciary, not an executive branch agency).

HJR 1041 of 2009 was adopted and all ready to go for the 2010 ballot. It was withdrawn from the ballot in favor of  HJR 1041 of 2010. That bill (which became State Question 752) let the Speaker of the House and President of the Senate add 1 member to the JNC and put in a provision that non-attorney members of the JNC  could not have attorneys in their family. That was approved on the November 2010 ballot.

This created a problem: what to do with the JNC members in non-attorney designated seats who had lawyers in their family? In mid-February the state’s supreme court ruled they could stay.

Special Edition on Court Funding

The American Bar Association Task Force on Preservation of the Justice System will be holding its inaugural meeting in Atlanta today. The task force is set to address “the severe underfunding of our justice system, depletion of resources, and the courts’ struggle to render their constitutional function and provide access to justice for countless Americans.

This special edition of Gavel to Gavel looks at just some of the ways state legislatures have proposed funding courts in the last several years.

The regular, weekly edition of Gavel to Gavel will appear Thursday.