Fair Courts E-Lert: Brennan Center Urges States to Abolish Elections for State Supreme Court Justices; Supreme Court of Appeals of West Virginia Halts Impeachment Trial

October 19, 2018
Brennan Center for Justice Fair Courts
Gov. Rick Scott


Florida Supreme Court Rules Gov. Rick Scott Cannot Appoint Three Supreme Court Justices

Florida Supreme Court Justices Pariente, Lewis, and Quince must leave the court in January after reaching the state’s mandatory retirement age. At the same time, Gov. Rick Scott must also leave office due to term limits, sparking a debate about whether Scott or his successor has the power to appoint the new justices.

In September, after Scott began the process of replacing the three justices, the Florida League of Women Voters and Common Cause filed suit (again), arguing only Scott’s successor has the power to appoint the justices. On Monday, the Florida Supreme Court issued an order finding that Scott does not have the power to appoint the three justices’ successors. The court found that “the governor who is elected in the November 2018 general election has the sole authority to fill the vacancies.”

But some note Scott has “already exercised enormous influence over the selections” through his appointment of members of the Judicial Nominating Commission, which vets and recommends judicial candidates to the governor. The Florida Times-Union explains, “[f]ive of the [nine] commission members were selected directly by the governor.” And because the JNC’s recommendations are binding, the incoming governor will be “bound to choos[e] among the finalists the commission certifies.”


Brennan Center Urges States to Abolish Elections for State Supreme Court Justices

Last week, the Brennan Center released a new report, Choosing State Judges: A Plan for Reform, calling on states to reform their processes for selecting state supreme court justices.

Brennan Center research has documented how million-dollar campaigns for state supreme court seats are fast becoming the national norm — in fact, one third of all elected state justices have been selected in at least one million-dollar race, and 90 percent of voters believe campaign cash affects judicial decision making, according to a 2013 poll. The report’s author, Alicia Bannon, states “elections and the money that pours through them undermine judges’ ability to perform their constitutional functions” and “threaten the independence of the judiciary.” “It’s time to do away with supreme court elections and move toward a more independent, more accountable process,” Bannon said.

In lieu of state supreme court elections, the report urges states to adopt a publicly accountable appointment process where an independent, bipartisan, and transparent commission vets candidates and creates a short list for appointment by the governor. The report also calls for the adoption of a lengthy single “one-and-done” term for state supreme court justices, rather than holding elections or a political reappointment process for subsequent terms on the bench.


Supreme Court of Appeals of West Virginia Halts Impeachment Trial

On Monday, the West Virginia Senate had planned to begin the impeachment trial for Chief Justice Margaret Workman — but last week, the acting justices on the Supreme Court of Appeals ruled that Workman’s impeachment was unconstitutional.

In September, the West Virginia House of Delegates voted to impeach four West Virginia Supreme Court Justices after questions arose about expensive, state-funded office renovations.

Chief Justice Margaret Workman sued the legislature, arguing her impeachment violated the state constitution. Five acting justices heard the case and last week unanimouslyhalted the impeachment proceedings against Workman. As Slate explains, the acting court found that this particular impeachment violated separation of powers principles because the “legislature has no power to impeach a justice based on alleged violations of the West Virginia Code of Judicial Conduct,” and that the procedure the House followed also violated due process requirements.

According to The Washington Post, “It’s not clear how Workman’s case will proceed; attorneys for the Senate had previously indicated that they planned to appeal to the U.S. Supreme Court.” Judge Paul Farrell, the presiding judge for the impeachment trial, said he would obey the court order and not preside over the case.  



Senate Confirms 15 Judicial Nominees; White House Announces Three 9th Circuit Nominees

Last week, Senate Democrats accepted Senate Republicans’ offer to confirm 15 federal judicial nominees “in exchange for the ability to go into recess through the midterms, allowing endangered Democrats to campaign,” according to Politico. “The calculation by Senate Minority Leader Chuck Schumer and his caucus was simple,” Politico explained. “That Senate Majority Leader Mitch McConnell (R-Ky.) would be able to confirm roughly 15 judges if he kept the Senate in session for the next few weeks anyway.”

With the deal, the Trump administration has now “confirmed 84 judges over the past two years, including two Supreme Court nominees,” Politico wrote.

Despite this agreement, The New York Times reported that on Wednesday, “Republicans on the Judiciary Committee convened yet another hearing to consider still more conservative federal court nominees — while the Senate was technically in recess.”

Last week, the White House also named three new nominees to the 9th Circuit Court of Appeals, which Trump has extensively criticized and Republicans have proposedbreaking up. Sen. Dianne Feinstein (D-Calif.), the ranking Democrat on the Judiciary Committee, complained that the White House moved forward without consulting her, saying that “to move forward with these nominees without consultation reflects President Trump’s desire to remake the court.” Former White House Counsel Don McGahn disputed Feinstein’s claim, saying, “We have spent nearly two years attempting to engage constructively with the Senators regarding the growing number of judicial vacancies tied to California.”