Carrie Severino comments at NRO's Bench Memos:

According to The Times-Picayune:

At the last possible minute - and even a little later than that - Gov. Bobby Jindal Monday entered the dispute over who will be the next chief justice, joining a motion on behalf of the state Supreme Court's power to make that decision on its own without the intervention of the federal court. It was a surprising development because as recently as Friday evening, it appeared the governor was going to stay out of the controversy over whether Supreme Court Justice Bernette Johnson has a rightful claim to be the next chief justice, with Jindal spokeswoman Shannon Bates saying, "It's an issue for the courts to decide."

But in a court pleading Monday, Jindal's executive counsel, Elizabeth Baker Murrill, joined four attorneys from the New Orleans firm of Christovich & Kearney, who had been assigned by the state to represent members of the Supreme Court aside from Johnson, and made it plain that the governor believes it is a an issue for the state, and not federal court to decide.

"The State of Louisiana, Office of the Governor, takes no position on who should become the next Chief Justice of the Louisiana Supreme Court, a Louisiana Constitutional issue which the Supreme Court of the State of Louisiana will decide. The position of the State of Louisiana, Office of the Governor, is, however, that deciding this Louisiana constitutional question is the sole province for the Louisiana Supreme Court," reads the memorandum filed Monday at one minute past the filing deadline of 5 p.m. set by federal Judge Susie Morgan. Alanah Hebert, an attorney for Johnson, said the governor's intervention also comes five days after Morgan's deadline last Wednesday for the Christovich attorneys to establish that they really were representing the state of Louisiana.

In a filing at 4:27 p.m. Monday, the Christovich attorneys, responding to Morgan's demand that they demonstrate that they truly represent the state of Louisiana, wrote that, "To avoid further ambiguity regarding the State's representation of its interests in this matter, the Governor is entering these proceedings to represent the State through undersigned counsel and the Governor's Executive Counsel."

The governor's intervention followed conversations between the lawyers for the state Supreme Court justices and the governor's counsel.

"After consulting with the courts and as stated in the pleadings filed today, it is important that this Louisiana-specific constitutional question be decided by Louisiana courts," said Bates. "As for who should be the next chief justice, that is a matter for the courts to decide."

With this, the political battle over the Louisiana Supreme Court would now appear to be fully joined, with Gov. Jindal and the U.S. Justice Department on opposite sides.

The Christovich attorneys - Kevin Tully, E. Phelps Gay, Elizabeth Cordes and H. Carter Marshall - who last week were rebuked by Attorney General Buddy Caldwell for identifying themselves in the court papers as "special assistant attorneys general," in this latest filing identify themselves as "special counsel for the state of Louisiana and the Office of the Governor."

Under the state Constitution, the most senior justice on the Supreme Court serves as chief justice. One of Johnson's colleagues, Justice Jeffrey Victory, contends that while Johnson has served with the court for more years than he has, he is actually more senior because her early years were served under the terms of the Chisom consent decree that settled a voting rights lawsuit, in which she was an appellate judge exclusively assigned to the Supreme Court.

An amicus brief filed in the case Monday by the NAACP Legal Defense and Educational Fund, echoed the U.S. Justice Department's own filing in the case, arguing that Johnson's seniority and her claim to be the next chief justice are beyond dispute.

"The issue before this Court is straightforward: whether Justice Bernette Johnson, who has undeniably served the longest on the Louisiana Supreme Court ... after Chief Catherine Justice Kimball, should succeed the Chief Justice once she retires in January 2013," reads the NAACP brief.

According to the brief, for the Louisiana Supreme Court to now create a "proceeding" to determine who is more senior would infringe on the federal court's authority to implement the Chisom consent decree, and "any legal conclusions reached by the Supreme Court that are inconsistent with this Court's authoritative interpretation of the Consent Judgment would be invalid."

The Star-Ledger reports on the alleged price New Jersey is paying for the battle between Governor Chris Christie and the state's Democratic Senators:

With the bitter political stalemate between Gov. Chris Christie and Senate Democrats over state Supreme Court nominees showing no signs of ebbing, the top rung of New Jersey’s judiciary is down two justices for more than three months — something that hasn’t happened in four decades.

Christie — who has vowed to reconfigure a court he criticizes as being too liberal and activist — has had only one of his three nominees approved as Democrats demand partisan balance.

During his first 875 days in office, New Jersey’s Supreme Court has had a full complement of seven justices for only 122 days. And for the past 101 days, there have been only five justices.

Legal experts say this very public dispute threatens to tarnish the Supreme Court’s national reputation for setting precedents and handing down landmark rulings. And they worry the fallout could eventually hurt New Jersey residents who rely on judges for fair decisions.

"More than for the lawyers and judges, the stakes are much higher for the citizens of the state," said Robert Williams, a law professor at Rutgers-Camden. "It’s not good for the citizens. Whatever they think of an activist court or a conservative court, they’d like to have a fair shake. They don’t want to have to wonder, ‘Will I get punished because of some larger political ax to grind?’"

Democrats say Christie started the fight when he refused to reappoint Justice John Wallace Jr., a Democrat, in May 2010, when Wallace was just one year and a few months shy of reaching the mandatory retirement age of 70. Lawyers and lawmakers were stunned and outraged — including Senate President Stephen Sweeney, who, like Wallace, is a Democrat from Gloucester County.

For more on New Jersey and other state's courts, see FedSoc's StateCourtsGuide.com.

In an effort to increase dialogue about state court jurisprudence, the Federalist Society presents the Spring 2012 State Court Docket Watch. This newsletter is one component of the State Courts Project, presenting original research on state court jurisprudence and illustrating new trends and ground-breaking decisions in the state courts. This edition contains updates on important state court decisions in Wisconsin, Arkansas, Pennsylvania, Montana, Georgia, and California.

• Wisconsin Supreme Court Rules Plaintiffs Entitled to Receive "Phantom Damages" by Andrew C. Cook
• Arkansas Supreme Court Clarifies Standard for Awarding Punitive Damages by William S.W. Chang
• Pennsylvania Supreme Court Vacates Trial Court's Denial of a Minor's Application to Obtain an Abortion by Steven J. Willis & Jordan E. Pratt
• Montana Takes on Citizens United by Edward Greim & Justin Whitworth
• Georgia Supreme Court Strikes Down Ban on Assisted Suicide Advertisements by Jack Park
• California Supreme Court Upholds Law Dissolving Redevelopment Agencies by Angela Kopolovich
• California: Traditional Marriage Proponents Have Standing When Public Officials Refuse to Defend It by Jonathan Berry

At Bench Memo's Carrie Severino highlights a Michigan judge in the spotlight for possible improprieties:

Michigan Supreme Court justice Diane Hathaway is under scrutiny for a series of financial transactions that could subject her to investigation by ethical and law-enforcement authorities. As Ross Jones of local ABC affiliate WXYZ reports:

[R]ecords show in a little over a year, [Justice Hathaway] owned four homes: one in Florida, and three in Grosse Pointe Park.

The homes are a part of a dizzying property shuffle that experts say raise ethical and legal questions, but Justice Hathaway has been ducking those questions for more than six weeks.

. . . .

[Lawyer] Howard Young says when his clients have asked about moving assets out of their names to qualify for a short sale , he’s told them to be cautious. 

“Those are typically fraudulent transfers, because they are done with the intent to delay, hinder, or defraud creditors,” said Young.

“And we are very careful to advise against making such transfers because even as an attorney, you can well be considered a co-conspirator in a fraud and that has significant ethical issues, and the state bar is going to come looking,” he said.

Judges are held to a high standard of conduct in Michigan, and according to the state judicial code, they need to avoid even the “appearance of impropriety.”

Scott Johnson at Powerline Blog relays a more detailed account of what happened, from the perspective of a lawyer who says the transactions “could well be Federal and state felony bank fraud.” Justice Hathaway seems to be referring questions to a top criminal-defense lawyer . . . .

The Des Moines Register reports:

Three Iowa justices ousted from their jobs in the wake of their decision to legalize same-sex marriage were rewarded Monday with the John F. Kennedy Profile in Courage award — something their chief critic immediately labeled as “a slap in the face to the people of Iowa.”

The awards were presented at the Kennedy presidential library in Boston to former Iowa Supreme Court Chief Justice Marsha Ternus and former justices David Baker and Michael Streit, all of whom were booted in a 2010 retention vote. Their removal marked the first time an Iowa Supreme Court justice had not been retained since 1962, when the merit selection and retention system for judges was adopted.

Ternus, Baker and Streit are the first Iowans to receive the award.

The audience at the presentation in Boston included three sitting Iowa Supreme Court justices — Chief Justice Mark Cady and Justices David Wiggins and Daryl Hecht — and enough friends and relatives of the honorees that Carolyn Kennedy, president of the library foundation’s board of directors, thanked “half the state of Iowa” for attending.

The former justices, making some of their most candid post-ouster comments since 2010, all struck warning notes in describing being fired for an unpopular decision that they continue to regard as correct.

At National Review's Bench Memos, Carrie Severino reports on important news on how Tennessee selects its judges:

I am very pleased to report that the Tennessee legislature has given overwhelming approval to a constitutional amendment that would replace Tennessee’s current method of selecting judges, the Missouri Plan, with a modified federal method.  

Under the terms of the amendment — which must be approved by a two-thirds vote in the next legislative session and then by a majority of voters in the 2014 election — judges in Tennessee would be nominated by the governor, confirmed by the legislature, and then stand for retention elections every eight years. To avoid logjam or obstruction of judicial nominees, the amendment provides for confirmation by default if a nominee is not rejected by the legislature within 60 days.

This is a significant moment in Tennessee’s history.  The state has been in some form of debate over methods of selection for nearly 40 years, with the debate growing especially intense in the last several years. As I have explained before, there are Tennesseans who feel very strongly that judges should be elected and others who are equally committed to the Missouri Plan. It has not helped matters that the state uses the Missouri Plan despite text in the Tennessee Constitution stating that “judges of the supreme court shall be elected by the qualified voters of the state.”  

So Governor Bill Haslam, House Speaker Beth Harwell, and Lieutenant Governor Ron Ramsey called for a constitutional amendment that would end the debate. After a great deal of discussion and negotiation, a modified federal method emerged as a compromise that garnered bipartisan support from more than two-thirds of the state’s legislators in both chambers.  And unlike so many compromises that take on the worst elements of all sides of an issue, this compromise took on the best elements of the method set forth in the U.S. Constitution by our nation’s Founding Fathers.  JCN is proud to have been a vocal supporter of that principled compromise.  

The Federalist Society recently created a new website devoted to covering the selection of judges in all 50 states.  You can find it at StateCourtsGuide.com.

The Federalist Society recently launched a website, State Courts Guide, dedicated to exploring how each state selects its judges.  At Bench Memos, Carrie Severino comments on the possibility that Missouri will alter its current and influential selection method, which is called, appropriately enough, the Missouri Plan:

The Missouri legislature is considering a constitutional amendment to modify the way judges in Missouri are selected. The legislation under consideration, sponsored by conservative Missouri Senator Jim Lembke, would significantly improve the judicial selection process by making some slight changes to the commission that nominates judges. Under the state’s current method of selection, known as the Missouri Plan, a seven-member commission sends the governor a list of three nominees from which he must select a judge to fill any appellate vacancy. The structure and left-wing dominance of the nominating commission (the distinctive feature of the Missouri Plan) has led many to argue that the state should amend the constitution to either directly elect judges or have them selected under something mirroring the advice/consent model set forth in the U.S. Constitution. 

The proposed constitutional amendment before the Missouri Senate falls short of either of those alternatives, but it would make some very important improvements. Primarily, it would increase the number of citizens who serve on the nominating commission and restagger the terms of those commissioners so that they would serve concurrently with the sitting governor. The governor’s judicial nominee would then go before the Missouri Senate, where the Senate would have the option to reject by a two-thirds vote. In short, whereas the balance of the authority over judicial selection currently resides in the unelected and left-leaning legal guild, these reforms would shift some authority to the chief executive and the legislature, in accordance with the principles articulated by the founding fathers in the debates over the U.S. Constitution.

Tennessee is debating how its judges are to be selected.  Carrie Severino weighs in at NRO's Bench Memos:

During the debates on the U.S. Constitution, James Madison proposed the appointment of judges by the president with the concurrence of the Senate. Madison believed “this would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.”  Alexander Hamilton echoed that statement in Federalist 76, explaining that nomination by the chief executive was superior to nomination by a collective body because:

 The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. 

By the end of this week, we will probably know whether Tennessee’s top public officials prefer that method of selecting judges, or whether they are behind the Soros-supported Missouri Plan. . . .

A modified federal method is likely the only way to avoid [a campaign for a state constitutional amendment], because it is the only method that can unite the two main factions in the debate. One faction — which includes the Soros-funded Proteus Fund and the most liberal members of the Tennessee legislature — insists that judicial elections are unacceptable. The other faction — which includes conservative organizations like Eagle Forum and the Family Action Council of Tennessee — insists that the Missouri Plan is unacceptable. Many (if not all) members of both factions are open to, if not supportive of, amending the state constitution to adopt a modified federal method of selection. 

To explore such issues, The Federalist Society recently launched StateCourtsGuide.com.  For the information on Tennessee's selection of judges, click here.

The Federalist Society's State Courts Project announces the publication of an important white paper by Chris W. Bonneau, associate professor of political science at the University of Pittsburgh.  The article's subject is "A Survey of Empirical Evidence Concerning Judicial Elections."  Professor Bonneau summarizes his paper as follows:

The election of state judges is a controversial topic. Consider, for example, this quote from a paper by Adam Skaggs et al.: “The story of the 2009-10 elections, and their aftermath in state legislatures in 2011, reveals a coalescing national campaign that seeks to intimidate America’s state judges into becoming accountable to money and ideologies instead of the constitution and the law.” Legal scholars, legal groups, and advocacy groups interested in reforming judicial selection have engaged in a coordinated effort over the past decade to try to end the popular election of judges. These efforts have been largely unsuccessful in recent years, with only two states modifying their method of selection and no states ending their method of popular election of judges. But legislation to alter the method of selection continues to be discussed in several states, and it is expected to continue to be an issue in many states.

In this paper, I evaluate the arguments made by opponents of judicial elections. Focusing primarily on state supreme court elections (since that is the level of court where most studies have been conducted), though also discussing intermediate appellate courts and trial courts where appropriate, I evaluate the arguments of judicial reform advocates in light of empirical evidence. This paper presents a synthesis of the existing literature in this area, integrating the disparate findings by scholars into a single publication.

The Weekly Standard reports that the state of California is inquiring about the sexuality of its judges:   

In order to make sure gays and lesbians are adequately represented on the judicial bench, the state of California is requiring all judges and justices to reveal their sexual orientation. The announcement was made in an internal memo sent to all California judges and justices.

“[The Administrative Office of the Courts] is contacting all judges and justices to gather data on race/ethnicity, gender identification, and sexual orientation,” reads an email sent by Romunda Price of the Administrative Office of the Courts. . . .

“Providing complete and accurate aggregate demographic data is crucial to garnering continuing legislative support for securing critically needed judgeships,” Price writes.

The process of self-revealing one’s sexual orientation is an element of a now yearly process. “To ensure that the AOC reports accurate data and to avoid the need to ask all judges to provide this information on an annual basis, the questionnaire asks that names be provided. The AOC, however, will release only aggregate statistical information, by jurisdiction, as required by the Government Code and will not identify any specific justice or judge.”

The Federalist Society just published a new white paper examining state court challenges to legislatively enacted tort reform.  Written by Andrew C. Cook and Emily Kelchen, the article begins by noting that "Over the past three decades, proponents of civil liability reform have made significant gains. Propelled by significant electoral gains in the 2010 cycle, it appears that the trend will continue this year, with 21 states so far enacting civil liability legislation."  The authors explain that their paper intends:

to provide a summary of recent state supreme court cases in which opponents of civil liability reform have challenged reform laws, mostly on constitutional grounds. Part I begins with a discussion of relatively recent cases in which civil liability reform laws were challenged and struck down. Part II discusses a recent West Virginia case upholding the state’s cap on noneconomic damages. Part III provides a summary of pending cases challenging civil liability reform laws in state courts across the country. Part IV provides an overview of recently enacted civil liability reform laws from various states.

At the Volokh Conspiracy, Ilya Somin points to an article reporting that Connecticut Supreme Court Justice Richard Palmer apologized to Susette Kelo for finding against her in the famous eminent domain case.  Writing in the Hartford Courant, Jeff Benedict described the scene last year:

If a state Supreme Court judge approaches a journalist at a private dinner and says something newsworthy about an important decision, is the journalist free to publish the statement?

I faced that situation at a dinner honoring the Connecticut Supreme Court at the New Haven Lawn Club on May 11, 2010. That night I had delivered the keynote address on the U.S. Supreme Court’s infamous 5–4 decision in Kelo v. New London. Susette Kelo was in the audience and I used the occasion to tell her personal story, as documented in my book “Little Pink House.”

Afterward, Susette and I were talking in a small circle of people when we were approached by Justice Richard N. Palmer. Tall and imposing, he is one of the four justices who voted with the 4–3 majority against Susette and her neighbors. Facing me, he said: “Had I known all of what you just told us, I would have voted differently.”

I was speechless. So was Susette. One more vote in her favor by the Connecticut Supreme Court would have changed history. The case probably would not have advanced to the U.S. Supreme Court, and Susette and her neighbors might still be in their homes.

Then Justice Palmer turned to Susette, took her hand and offered a heartfelt apology. Tears trickled down her red cheeks. It was the first time in the 12-year saga that anyone had uttered the words “I’m sorry.”

It was all she could do to whisper the words: “Thank you.”

Then Justice Palmer let go of her hand and walked off.

But later, Justice Palmer partially retracted the apology.  According to Benedict:

Justice Palmer sent me a “personal and confidential” letter dated Nov. 8, 2010. In it he didn’t dispute my account. Nor did he ask me not to publish. Rather, he provided some important context.

“Those comments,” he wrote, “were predicated on certain facts that we did not know (and could not have known) at the time of our decision and of which I was not fully aware until your talk — namely, that the city’s development plan had never materialized and, as a result, years later, the land at issue remains barren and wholly undeveloped.” He later added that he could not know of those facts “because they were not yet in existence....”

Q: Looking back at the Kelo decision (by the Connecticut Supreme Court), how do you see it now? In other words, has it led to good law?

A: I think that our court ultimately made the right decision insofar as it followed governing U.S. Supreme Court precedent. Whether the Kelo case has led to good statutory law is not a question for me or my court; so long as that law is constitutional, its merits are beyond the scope of our authority. Of course, judges are also citizens and, therefore, we may hold a view on the merits, but that view should not interfere with or affect our legal judgment concerning the law’s constitutionality.

Somin comments on the justice's careful choice of words:

It is not entirely clear whether Justice Palmer now believes that the court was justified in upholding the taking under the Connecticut state Public Use Clause. His statement that he and the other majority justices “made the right decision insofar as [they] followed governing U.S. Supreme Court precedent” could be interpreted to mean that they were wrong on those aspects of the case that were not governed by US Supreme Court precedent, including the question of whether the New London takings were justifiable under the Connecticut Constitution.

Our State Courts project draws your attention to an editorial in today's Wall Street Journal lamenting the effect of the Missouri Plan for judicial selection in, fittingly enough, Missouri.  Many states use the plan, which was intended to be an improvement over choosing judges via elections.  Under the system, a non-partisan commission selects the "best qualified" among the candidates for a judicial vacancy, a slate that is then forwarded to the state's governor.  The governor may choose his selection from the pre-selected candidates. If he does not do so within a particular timeframe, the commission itself chooses the selection.

According to the article, "The Missouri Plan was intended to get politics out of the courtroom but has instead handed disproportionate power to trial lawyers and state bar associations. The effect has been to insulate the backroom-dealing from public scrutiny while stocking state courts with liberal judges."  As a case in point, the editors describe the slate of candidates recently selected in Missouri:

Leading the trio sent to Governor Jay Nixon is Joe Jacobson, a trial lawyer whose firm, Green Jacobson, is known for its work in securities fraud, lender liability and consumer class actions. A second nominee, County Circuit Judge Michael Manners, spent two decades as a trial lawyer himself, eventually serving as president of the Missouri Association of Trial Lawyers. Rounding out the trio is George Draper III, a state appeals-court judge and African-American who received the fewest votes (four) from the seven nominators.

Should you wish to explore this subject in far greater detail, see the dueling white papers the Federalist Society published in 2003: one arguing the case for judicial appointments, the other arguing the case for partisan judicial elections.

UPDATE: For a more recent analysis that examines the constitutionality of appointment plans, see George Mason University law professor Nelson Lund's 2011 article "May Lawyers be Given the Power to Elect Those Who Choose Our Judges? ‘Merit Selection’ and Constitutional Law."

The New York Times published an op-ed yesterday by Erwin Chemerinsky and James J. Sample arguing that, given the fact that judicial elections are likely to continue in many states, these states should seek to limit financial contributions and expenditures on judicial election campaigns. They also write that the Supreme Court should find that what they deem is a compelling interest in having an impartial bench is enough to permit campaign spending restrictions that would not be allowed for nonjudicial elections under the Constitution.

In other state court selection news, the Chicago Tribune ran a story last week reporting on the influence Michael Madigan, the Illinois House Speaker, has on the selection process there, termed "merit selection," in which a judicial committee selects a list of candidates for the bench from which the governor then chooses. Credit to Jonathan H. Adler, who linked to this story on The Volokh Conspiracy yesterday.

For more on judicial merit selection versus election, click here to read Judicial Elections and Their Opponents in Ohio by Jacob H. Huebert, published by the Federalist Society in November.