New Jersey's Democratic Governor Phil Murphy nominated a Republican, Douglas Fasciale, to the state's supreme court. Republican Senator Holly Schepisi says this nomination is the result of Schepsi's deal with Murphy, according Katie Sobko, writing for northjersey.com.
Sobko adds that an unwritten rule of senatorial courtesy "allows senators to block judicial nominees from their home county," which Sen. Schepisi did in blocking Gov. Murphy's nomination of Rachel Wainer Apter for a different seat on the NJ Supreme Court. The deal apparently unblocked Wainer Apter in exchange for nominating Republican Fasciale.
"These nominations — Fasciale, a Republican, and Wainer Apter, a Democrat — maintain the 70-year tradition of having a political power balance on the state’s highest court," Sobko notes.
Both nominees were confirmed by the state senate.
The Oklahoma Senate recently voted to replace the state’s
current bar-privileging method of supreme court selection with a more democratic
appointment process including senate confirmation of the governor’s nominee.
Oklahoma Supreme Court selection currently centers on judicial
nominating commission (“JNC”) with six
of its fifteen members selected by the state’s bar. The governor must appoint one
of the three finalists chosen by the JNC. Oklahoma’s JNC has been criticized
for its secrecy.
To reform this system, the Oklahoma Senate recently passed Joint
Resolution 43 which, if approved by Oklahoma’s House and voters, would
amend the Oklahoma Constitution to abolish the current JNC and instead follow the
United States Constitution in subjecting the governor’s supreme court nominee to
senate confirmation.
The Oklahoma Senate has previously sought similar change.
On May 26,
Florida Gov. Ron DeSantis (R) appointed attorneys
John Couriel and Renatha Francis to the Florida Supreme Court after missing his constitutional deadline to fill
the vacancies by March 23 due to the COVID-19 pandemic. However, state Rep.
Geraldine Thompson (D) filed a motion in the Florida Supreme Court in July
challenging Francis’ appointment because Francis would not be constitutionally
qualified to sit on the bench until September 24—ten years after she became a member
of the State Bar
Art. V, § 8
of the Florida Constitution states that “No person is eligible for the
office of justice of the supreme court or judge of a district court of appeal
unless the person is, and has been for the preceding ten years, a member of the
bar of Florida.” Thompson’s motion asserts that this “language of the Florida
Constitution requires that an individual satisfy that requirement prior to
being eligible for appointment.” (Emergency Petition for Writ of Quo Warranto
& Writ of Mandamus, 1, Thompson v.
DeSantis & Nordby, No. 110155215 (Fla. 2020)).
In contrast,
Governor DeSantis’ response argues that “appointment does not
constitute assuming office” and Francis will not assume office until the end of
her maternity leave
on September 24.
Having
anticipated that argument, Thompson also argued that “[i]f the Court concludes that
Governor DeSantis has not yet formally ‘appointed’ Judge Francis to the Florida
Supreme Court, it should issue a writ of mandamus requiring the Governor to
immediately appoint another individual who meets all the qualifications of the
Florida Constitution from a new list of qualified candidates. Pursuant to the
Florida Constitution, Governor DeSantis had a clear duty to appoint a fully
qualified nominee no later than March 23, 2020. If Governor DeSantis has not
yet made the required ‘appointment,’ he is in express violation of the Florida
Constitution” ((Emergency Petition, Thompson,
No. 110155215 at 2).
In a
previous blog post, I discussed how Florida’s constitution requires the
governor to fill supreme court vacancies within a 60 day deadline but does not
specify any repercussions if a governor passes the deadline. If the court
agrees with Thompson’s argument that DeSantis violated the Constitution by
delaying his appointments, it will be interesting to see if it also demands
that DeSantis make a new appointment. Otherwise, such a finding of
unconstitutional delay would seem toothless, as in the 2009 case of Pleus v. Crist in which the Florida Supreme Court chose not to declare any
repercussions for the governor’s unconstitutional missing of the appointment
deadline.
Thanks to Arrian
Ebrahimi for research assistance.
Georgia’s Supreme Court recently decided whether the next
member of that court would be elected by the state’s people or appointed by the
governor. With six justices
recused
(and temporarily replaced by five lower court judges),
Barrow v.
Raffensperger let stand the Georgia Secretary of State’s
cancellation of an election to fill resigning Justice Blackwell’s seat, thus
allowing Gov. Brian Kemp (R) to appoint Blackwell’s successor.
Georgia’s Constitution provides that “All Justices of the
Supreme Court ... shall be elected on a nonpartisan basis for a term of six
years. The terms of all judges thus elected shall begin the next January 1
after their election.”
(Art. 6, § 7,
Par. 1).
“Vacancies shall be filled
by appointment of the Governor,” (Art. 6, § 7,
Par. 3) and “
An appointee to an elective office shall serve until a successor is duly
selected and qualified and until January 1 of the year following the next
general election which is more than six months after such person's appointment.”
(Art.
6, § 7, Par. 4)
Justice Blackwell’s current term is set to end Dec. 31,
2020, and a May 19, 2020, election was scheduled to fill the next standard
six-year term for his office, which would begin on Jan. 1, 2021. However, on
Feb. 26, 2020, Justice Blackwell submitted a letter to Governor Kemp resigning
from his office effective Nov. 18, 2020. The Governor accepted Justice
Blackwell’s resignation and announced that he would appoint a successor to the
office. The Georgia Secretary of State canceled the May 19 election for the
next term of Justice Blackwell’s office on the ground that Blackwell’s
resignation, once it was accepted, created a vacancy that the Governor could
fill by appointment, and thus no election was legally required. The Georgia
Supreme Court agreed in
Barrow v. Raffensperger.
However, a dissent argued the secretary of state cannot
cancel an election “based on an expected or highly likely vacancy in the
office” and progressive
Ian Millhiser
objected to this “
scheme to
keep Blackwell’s seat in the GOP’s hands.” Millhiser predicted in Vox that “The upshot of Barrow is likely to be that when a
justice who belongs to the same party as the governor wishes to retire, they
will submit a post-dated resignation similar to the one Blackwell submitted to
Kemp. That will effectively give that justice’s party an extra two years to
hold on to the justice’s seat before the next election takes place.”
Interesting
to note that Millhiser’s characterization of the judicial seat as “in the GOP’s
hands” refers to a state with ostensibly non-partisan elections. And
Millhiser’s reference to “a justice who belongs to the same party as the
governor” conflicts with the notion that sitting justices do not identify with a political party or that using non-partisan judicial
elections, as Georgia does, can keep partisan politics from the bench.
Arizona
Governor Doug Ducey (R) just made headlines for setting a new record of 71
judicial appointments, a milestone that has drawn attention to the Arizona Commission on Appellate
Appointments. The Commission is the only check on an Arizona governor’s appellate
court appointments, because Arizona lacks confirmation of judicial nominees by
the legislature. The force of the Commission’s check depends on the number of
nominees the Commission sends the governor. “The more names you [the
Commission] give him the more it’s like he can pick whoever he wants,” said former
Arizona State University law dean Paul Bender. “The commission is there for a
reason, and it’s to narrow down the people so the governor can appoint the best
people… When you start sending in five or seven names, that doesn’t work as
well anymore.”
When an
Arizona appellate court vacancy occurs, Art. 6, Section 37(A) of the Arizona
Constitution requires the
Commission to “submit to the governor the names of not less
than three persons nominated by it to fill such vacancy,” but there is no maximum. In contrast, the constitutional
maximum from supreme court nominating commissions is three in Colorado (Art. 6, § 20), Indiana (Art. 7, § 10), Iowa (Art. V, § 15), Missouri (Art. V, § 25(a)), Oklahoma (Art. 3, § 4), and Wyoming
(Art. 5, § 4). New York’s
Constitution (Art. VI, § 2), does not specify a maximum for its highest
court, the Court of Appeals, but its statutory maximum is seven. N.Y. Judiciary Law § 63(2).
Arizona’s
legislature plays a role in selecting the Commission. Art. 6, § 36(A) of Arizona’s
Constitution states that, the sixteen commission members
shall be composed of the chief justice of the
supreme court, who shall be chairman, five attorney members, who shall be
nominated by the board of governors of the state bar of Arizona and appointed
by the governor with the advice and consent of the senate in the manner
prescribed by law, and ten nonattorney members who shall be appointed by the
governor with the advice and consent of the senate in the manner prescribed by
law.
The same
section continues to say that no more than three lawyer members and five
nonlawyer members may be from the same political party. Similar rules of
political balance apply to the commission itself. Art. 6, Section 37(A) says
that no more than 60% of the nominees submitted to the governor may be of the
same political party.
Arizona Gov.
Ducey’s second term has seen the commission offer increasingly long lists of
nominees. His recent appellate appointment of Cynthia Bailey came from a list
of ten candidates, after
the Commission only eliminated one applicant. In contrast, the average number of
nominees submitted by the Commission in 2017 was six, and Ducey’s predecessor,
Gov. Jan Brewer (R), only received lists of
three nominees for all her Supreme Court appointments. This shift seems to have
occurred after Gov. Ducey appointed five new
members to the commission in 2017, leaving the panel
with only Republicans and independents. Democrats, like state Sen. Rebecca
Rios, argue that these
appointments were “blatantly skewed.” She went on to say “[w]hen Gov. (Janet)
Napolitano was governor, I think it's important to note that she, in fact,
nominated seven Republicans” to the commission.
The governor’s
increased freedom from the commission’s large slates manifested in 2019 when Gov.
Ducey appointed Supreme Court Justice Bill Montgomery to the bench. After replacing the three
retired commissioners who voted against nominating Montgomery earlier that
year, the Commission unanimously approved adding his
name to the seven-person finalist list in July.