FedSoc Blog

Governor Brownback Releases [No] Names of Judicial Applicants


by Publius
Posted July 11, 2013, 9:15 AM

Carrie Severino comments at National Review Online's Bench Memos:

[UPDATE: Governor Brownback’s office has released a statement by the governor clarifying that he will not release the names of applicants for a vacancy on the Kansas Court of Appeals, reasoning that such disclosure would discourage the best possible judges from applying. Supporters of the rule of law and high quality courts, in Kansas and elsewhere, should applaud Governor Brownback for making a sound public policy decision in the face of overwhelming criticism from the press and far left special interest groups. This post has been updated accordingly.]

As I reported last week, a coalition of partisan advocacy groups, led by Soros-funded Justice at Stake, had been throwing a temper tantrum over the fact that Kansas governor Sam Brownback would not disclose the names of applicants for a judicial vacancy. Sadly, Governor Brownback has apparently caved under the pressure and will release the names of the applicants.

No president in American history has done what these groups pushed Governor Brownback to do, and, as I have already noted, I don’t see any of them calling on President Obama to disclose the name of judicial applicants. With good reason — such a campaign would be scoffed at by judicial-selection experts on the right and the left.

As Rutgers professor Alan Tarr, a leading scholar on state judicial selection and state constitutions, explained in a statement, the front-end confidentiality of the federal method actually improves the quality of the judicial applicant pool:

I am not surprised that Governor Brownback has declined to disclose the names of all those who expressed an interest in the judicial vacancy.  In New Jersey, which has the same system of governors appointing with senate approval, neither Republican nor Democratic governors have ever released the names of applicants for judicial slots, and with good reason–many qualified persons won’t apply unless their names are kept secret, because they don’t want to jeopardize their current positions.

Has applicant confidentiality destroyed the New Jersey Supreme Court? Apparently not according to the New York Times, which has lauded (incorrectly, in my view) the court as “one of the most respected state appeals courts in the country.”

Such arguments once mattered to legal organizations who claim to care about encouraging applicant pools of the highest quality. As I explained in my last post, that is why the American Bar Association’s policy favors confidentiality.

Even liberal supporters of the commission-based Missouri Plan defend applicant confidentiality in that process. According to the American Bar Association’s “Report of the Commission on State Judicial Selection Standards”:

In an effort to reduce the fear candidates may have of exposing their private histories, commissioners should keep candidate information confidential.  In some cases, commissions may even decide to keep the names of applicants anonymous. . . .

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