2011 Year in Review: Merit selection is dead (long live merit selection)

Judicial selection in general has been a bone of contention both for the Federal and state legislatures recently and no particular method of selection has been the subject of more scrutiny than merit selection. Yet while there have been several pushes to change substantially, or outright end, various merit selection systems there has been a substantial push in other states to adopt just such a judicial selection methodology.


Kansas’ HB 2101 initially replaced merit selection for the state’s Court of Appeals with a true federal system of executive appointment, Senate confirmation, and life time tenure. However, a provision of the state’s constitution prohibited life time terms and thus the version approved by the House removed the life tenure provision.

Oklahoma’s Senate also approved a plan (SJR 36) to simply end it and allow the governor to appoint any qualified person with senate confirmation.  Although the proposal flew through the Senate, it went nowhere in the House.

Finally, Tennessee is facing the possibility of legislative ending of their merit selection system by default. The existing system starts to sunset in 2012 and the legislature has to reauthorize the system.


Indiana’s HB 1266, a huge new law that reshaped much of the state’s judiciary statutes, included a provision to expand merit selection to the four judges of the Lake Superior Court, County Division.

Although Indiana’s was the only successful expansion, several efforts were made, some of which may bear fruit in the 2012 cycle.


Arizona had several efforts made to alter its merit selection system. SCR 1040 would have (among other things) ended retention elections and replaced with Senate confirmation/reconfirmation. SCR 1045 would have removed the requirement that attorney members are nominated to the Governor by the Arizona State Bar as part of the Commission appointment process. Both passed the Senate but failed in the House. What did ultimately meet with House approval and will appear on the 2012 ballot is SCR 1001:

  • Qualifications & Terms- Increases to 8 years the term of office for Supreme, Court of Appeals, and Superior Court judges starting in 2013. Increases the judicial retirement age from 70 to 75 years old.
  • Appellate and Trial Court Commissions- Removes the requirement that attorney members be nominated by the Board of Governors of the Arizona State Bar. Establishes that four attorney members are appointed by the Governor and one member be appointed by the President of the State Bar. Requires, upon an attorney member vacancy, the Arizona bar to solicit, review and forward to the Governor all applications and recommendations for appointment. Increases the time period attorney members must be admitted to practice from 5 to 10 years. Specifies that attorney members must be in good standing with the state bar, have no formal disciplinary complaints and have never been formally sanctioned as a result of disciplinary action. Requires the Commissions to submit at least eight nominees, rather than three, to the Governor to fill a vacancy in the office of a justice or judge of the Supreme Court, Appellate Court or superior court. Permits the Commissions to reject an applicant and submit less than eight nominees, unless the applicant receives a two-thirds vote. Requires the Commissions to nominate any applicant who receives a majority vote. Requires, if more than one vacancy exists in the same court at the same time, the Commissions to submit the names of at least six persons nominated to fill each vacancy and prohibits the submission of the name of the same person for more than one vacancy. Permits the Governor to make an appointment from any of the nominees presented for any of the vacancies in that court, if more than one vacancy exists in the same court at the same time.
  • Supreme Court- Must make available through its website, every written opinion or order that is issued by a judge of a court of record that resolves a contested matter of law and that is not sealed or confidential. Must transmit a copy of the judicial performance review of each justice and judge who is up for retention to the Senate President and the Speaker of the House of Representatives at least 60 days before the regular primary election.
  • Legislature- Permits a joint legislative committee consisting of the Senate and House Judiciary committees to meet and take testimony on the justices and judges who are up for retention at least 60 days prior to the general election.

Florida‘s HJR 7111, while initially introduced in order to split the state’s supreme court, was heavily amended. the version appearing on ballot in 2012 would require Senate confirmation of Supreme Court appointments, allow the legislature to reject Supreme Court rules by a majority vote, and give legislators access to judicial misconduct investigations. The proposal must be approved by 60% of voters.

Iowa‘s HB 242 was a relative minor revision approved by that state’s House. The bill would have required the 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 than two members from the same county.

In addition to trying to end its merit selection system (see above), Oklahoma SB 621 would have changed the merit selection system. Although it would not directly impact merit selection commissions or retention elections, the constitutional amendment would have required any judicial appointment be confirmed by a majority of the Senate. Although the proposal flew through the Senate, it went nowhere in the House.

Rhode Island’s HB 6242 / SB 686 makes any individual whose name was publicly submitted to the governor by the judicial nominating commission, eligible for subsequent nomination by the governor until June 30, 2012. This is an extension of a prior law that allowed for extended eligibility that was about to sunset.

Utah SB 212 allows the Judicial Performance Evaluation Commission to vote in a closed meeting on whether or not to recommend that the voters retain a judge. It removes litigants from the judicial performance evaluation survey and reduces the number of categories to be included in the performance evaluation survey.

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