The Arizona GOP put Proposition 137 on the ballot in June, amid widespread outrage over the state supreme court’s April decision to uphold a Civil War-era abortion ban. Within weeks of that ruling, the progressive group Progress Arizona launched a campaign to unseat two of the justices who sided with the majority and are up for retention this fall, Clint Bolick and Kathryn King, providing an outlet for voters put off by the decision and the court’s ideological makeup.

Prop 137, if it passes on Nov. 5, would nullify Bolick and King’s retention races that are taking place on the same day, as well as cancel future elections. 

The proposal is “a power grab,” said Abigail Jackson, digital director of Progress Arizona. “This was responding to the energy and the anger we saw around that decision. The extremist legislators who pushed the proposal forward did it with the intention of protecting these judges.” 

She added, “It is designed to take away our voices.”

Jake Faleschini, program director for the Alliance for Justice, a national organization that works to build progressive strength in the judiciary, points to a string of changes the GOP has pushed nationwide to consolidate power in state courts. In Arizona, Republicans last decade expanded the state supreme court and secured a strong conservative majority. 

“At the end of the day, they want policy outcomes from the courts and they are willing to change the rules to achieve that,” Faleschini told Bolts.

“What we are seeing now is a bit of an awakening from the left around just how important these courts are for maintaining our rights,” he said. “As these rights have been taken away by the [U.S.] Supreme Court, some of the state supreme courts are no longer there as willing participants in proactively protecting their rights.”

Supporters of Prop 137 say it is designed to insulate judges from such blowback against their rulings so they don’t have to pander to win votes. Republican Senator David Gowan, one of the measure’s chief sponsors, says he’s worried about national groups flooding state elections.

“This proposition makes it difficult for nefarious outsiders to manipulate our judicial process,” Gowan told Bolts. “We see a lot of dollars pour in from out of state to unseat judges who can’t defend themselves because they aren’t politicians.” 

Gowan, a conservative who used to be state Speaker, has a history of proposals that would override election results. He proposed a bill in 2021 to allow lawmakers to attribute Arizona’s electoral votes to whichever presidential candidate they choose, regardless of how people vote. 

This year’s Prop 137 would cancel retention elections for supreme court justices, judges on the state’s court of Appeals, and superior court judges in counties above 250,000 residents.

Currently, all judges first make it on the court through an appointment by the governor, though the state has some guardrails for who governors can choose: They must select their nominee from a shortlist of candidates assembled by a 16-member panel, though that panel’s members are also chosen by the governor. 

Once judges are on the court, they face regular performance reviews, as well as retention elections every four to six years that give the public some say; these races are ‘up-or-down’ questions, in which Arizona judges never face an opponent. As long as they win these retention tests, judges can stay on the court—up until the mandatory retirement age of 70. 

The system was approved by Arizona voters in 1974, with support from Sandra Day O’Connor, who at the time was a Republican state senator. After she retired from the U.S. Supreme Court in 2006, O’Connor worked to bring Arizona’s system to other states.

This year, the Arizona Judges Association, a professional organization that represents hundreds of judges, advocated for the measure to end retention elections. Jonathan Paton, a former GOP lawmaker who lobbies on their behalf, told lawmakers that scrapping retention elections would improve accountability because it’s too difficult for voters to make informed decisions on judges.

“I represent the Judges Association, and I don’t know who most of these people are that appear on the ballot,” Paton testified in the legislature. “So, do we think that the average voter knows?”

Paton is married to Court of Appeals Judge Angela Paton, who is also up for retention this fall and has been targeted by a progressive group. If Prop 137 passes, it would also nullify the results of her election. 

But many Arizona jurists don’t want the public to be cut out of the process of deciding who runs the courts, and the debate over Prop 137 created large rifts within the legal community. 

Retired Chief Justice Ruth McGregor, a former president of the Arizona Judges Association, spoke against Prop 137 at the launch event of Keep Courts Accountable, a political action committee formed in August to convince voters to reject the amendment. Former Chief Justice Scott Bales and former Justice John Pelander spoke at the event as well. 

Reached for comment, Paton would not say whether the Arizona Judges Association still backs the reform. The association’s website was taken offline in the last month. Paton also told Bolts that, as a lobbyist for judges, he cannot reply to questions about an active ballot measure.

“Without the vote of the people, the judges would have no accountability,” Felicia Rotellini, who chairs the Keep Courts Accountable PAC, told Bolts. “If there is no accountability to the people, then there is a motivation to lean towards their own ideological preferences, their personal preferences, their political preferences.”

“We will lose part of our democracy,” said Rotellini, who is also a former head of the state Democratic Party.

Arizona is among the 31 states that hold elections for their justices. Ending that practice would make it an outlier in the West, where many states adopted judicial elections during the Progressive Era as part of a broader wave to end corruption and cronyism. The 19 states that have no judicial elections are heavily concentrated in the northeast of the country.

In Arizona, a commission of laypeople and legal experts periodically reviews judges’ performance to determine if they meet the standards for the bench, based on surveys collected from attorneys, fellow judges and people who have appeared before them in court. The scores are shared with voters before each election to help voters decide whether to keep them based on standards of merit, such as legal ability and integrity, rather than political issues.

If Prop 137 is approved, judges would only go before the voters if they fail their performance review, a rarity in Arizona, or if they are convicted of certain crimes, declare bankruptcy, or foreclose upon a mortgage. Gowan is making the case that this reform would help voters make decisions that are a lot more informed.

“The judicial retention portion of the ballot, that’s two pages long,” he said. “If we take the high performing judges off the ballot, it allows the people to see the low-performing judges, and they are no longer able to hide in the crowd, because those are the ones we want to knock out.”

But Prop 137 would also modify the performance review process by injecting legislators into it: The majority party in each chamber would appoint a member to the otherwise nonpartisan commission charged with assessing judges for impartiality, temperament and expertise. 

According to Bales, the former chief justice who spoke at the launch of the PAC that opposes Prop 137, the change would “make judges more susceptible to criticisms from the legislature, and perhaps a little less susceptible to the kind of public input you get through the [election process].” 

Prop 137 would also give legislators authority to order investigations against judges suspected of “a pattern of malfeasance,” though the proposal does not define what activities would warrant such an inquiry. 

Bates worries this would empower legislators to attack judges they disagree with. “What I think this really is, is a blank check for any individual legislator who has a grievance against a judge or wants to get some political milage out of asserting a grievance against a judge,” he said.

The effort to end judicial terms in Arizona comes as reformers at the federal level are pushing for the inverse change of rolling back lifetime judicial appointments. Following revelations that U.S. Justices Clarence Thomas and Samuel Alitto accepted millions of dollars in undisclosed gifts from individuals with cases before the court, groups like Alliance for Justice are making the case that federal judges are not accountable enough and that the federal system needs stronger guardrails, such as term limits and an enforceable code of ethics.  

If Prop 137 passes, Arizona judges would look a lot more like the federal bench, Falschini said. They “would have zero accountability to the people, just like federal judges.” 

Bolick, one of the two justices up for retention this fall, published an opinion article in May in the Arizona Republic, arguing that it’s the campaign to oust him that’s responsible for politicizing the judiciary and diluting the state’s emphasis on merit.

Progressives, he wrote, are “weaponizing judicial retention” and “cynically harnessing anger over our recent abortion decision to replace us with justices who will rubber-stamp their ideological agenda.”

The latest efforts over Bolick’s reelection and Prop 137 are an escalation of fights that took off last decade, though. Republicans, led by former Governor Doug Ducey, changed the norms around court appointments, helping ensure courts would lean conservative. Their maneuvers allowed Ducey to appoint five of the seven justices currently sitting on the all-Republican court.

In 2016, Republicans expanded the state supreme court by adding two seats, enabling Ducey to appoint two new judges despite unanimous opposition from sitting justices.

Then, in 2019, Ducey upended the nominating commission to ensure he’d be able to nominate his preferred candidate. Earlier that year, the commission had refused to include Bill Montgomery, Maricopa County’s conservative prosecutor, on its shortlist for a judicial vacancy. Ducey then replaced some of the commission’s members, paving the way for the new panel to recommend Montgomery and for the governor to place him on the supreme court. 

Although no Arizona justice has ever lost a retention race, progressives in 2022 mounted an unusually solid effort to oust Montgomery, questioning his ideology and ethics. The justice also received relatively low performance scores in his evaluations, but was ultimately retained. 

But in Maricopa County, the largest county in the state, voters chose to not to retain three local judges, an unusual result. One of the ousted judges, Stephen Hopkins, was the only judge that year to fail to meet the performance standards of the review process. 

In March of this year, GOP lawmakers passed a resolution to end judicial elections through the state Senate; that was right before the supreme court’s decision on abortion. The House took up the bill months later, amid the surge of pro-choice activism against Bolick and King. The vote to advance the measure was strictly along party lines in both chambers, with all Republicans supporting it. 

State Senator Shawnna Bolick, a Republican who is married to Clint Bolick, voted in favor of the resolution that would end her spouse’s future elections. 

Democrats in 2022 also flipped the governor’s mansion, and this November they have a shot at gaining the legislature and controlling the state’s government for the first time since the 1960s. 

Republicans have reacted with frustration as they’ve lost their advantage in the state, and have pursued other steps to use this year’s ballot to limit the will of voters, including a measure to make it prohibitively difficult to qualify a citizen’s initiative. In Maricopa County, GOP candidates who have spread conspiracy theories that the 2020 election was stolen are trying to win control over the elections systems. 

And if voters pass Prop 137 this fall, it would void the results of the concurrent retention races, including Bolick and King’s. 

But if they reject the amendment while ousting one or both of Bolick or King, Democratic Governor Katie Hobbs would have the power to nominate their replacements. 

Regardless, Hobbs will soon get her first appointment to the court. Justice Robert Brutinel, who was appointed to the court by Republican Governor Jan Brewer in 2010 and who dissented in the court’s decision to revive the abortion ban, announced on Tuesday that he is retiring.

For Faleschini, Prop 137 is about freezing the court’s conservative majority in place. “It’s not that they are looking for a change to the system to make it more fair and impartial,” he said. “They are seeking changes to make sure that the types of political justices they want on courts can stay.”

He added, “Republicans are concerned they will not win a statewide election again in a very long time. They think the only power they can hold onto is through the supreme court.”

The post Arizona GOP Asks Voters to Nullify the Judicial Elections They’ll Be Voting On appeared first on Bolts.

Mara Dolan, a public defender in Massachusetts, wants to shake that up. Attorneys who have represented indigent defendants, she says, bring a critical perspective to the court system since they’ve experienced the ways it fails people, and the ways it compounds social inequalities. Had she lived in some other states, Dolan could have run for the bench herself. But Massachusetts does not elect its judges and justices. Instead, they’re nominated by the governor and then confirmed by an obscure eight-person elected body, the Massachusetts Governor’s Council.

So Dolan ran for a seat on the governor’s council, and last week she prevailed, ousting a 25-year incumbent, Marilyn P. Devaney. 

Dolan won 52 to 48 percent over Devaney in the Democratic primary in the state’s third district, which covers parts of the Boston region. After narrowly losing in a first run in 2022, Dolan piled up endorsements this year in her rematch against Devaney, who has courted controversy and tense relationships with her colleagues since joining the council in 1999. 

There is no other candidate running in the general election, so Dolan is now virtually guaranteed to win in November.

I talked to Dolan on Wednesday about why she is pushing for more professional diversity on the bench, and what she thinks she can do as a councilor. She stressed that Massachusetts judges have discretion over a broad swath of decisions—how long a sentence to impose, whether to incarcerate people with addiction issues who relapse, whether to discipline prosecutors who break the rules. And she made the case that judges too often make decisions that focus on punishment and exacerbate the state’s high racial disparities in incarceration. 

Dolan will be just one of eight councilors but she hopes to use her leverage to change these mores. “The governor’s council is the gateway to the entire judicial branch,” she said. 

The council has several other roles, including confirming parole board members and reviewing pardons and commutations. Dolan says she wants to use her new bully pulpit to push Governor Maura Healey, a first-term Democrat, to commute more sentences, and advocate for reforms in the legislature such as increasing the size of the parole board to process more applications. 

As an institution, the governor’s council has long been decried for a lack of transparency. It has met with judicial nominees behind closed doors, and resisted streaming its meetings online, a change that Devaney pushed for. Dolan says she’s in favor of open meetings and online streaming.

The council has also drawn criticism for failing to apply any real scrutiny to nominees. During Republican Governor Charlie Baker’s eight-year tenure, the governor’s council was controlled by Democrats, yet it confirmed all but one of Baker’s 350 nominees, according to research published in The Shoestring. 

In a Q&A with Bolts, Dolan said that she wants the state judiciary to offer a strong counterpoint to the staunch conservatism of federal courts, a goal that’s become common in progressive legal circles. “In a time when our federal courts are taking away our rights,” she said, “we have to make sure that our state courts uphold them.” 

Your campaign centered on the case that the governor’s council needs a public defender. That’s not a common campaign slogan. Why was this an important message for you?

In Massachusetts, we do not elect our judges, but we elect the people who approve them: That’s the governor’s council. The governor’s council is the gateway to the entire judicial branch. 

And we have never had a public defender in the governor’s council. That’s a perspective that is badly needed and badly overdue, particularly in light of the fact that the ratio of former prosecutors to former public defenders who are judges in our trial courts is two to one. We really need a public defender being part of the approval process for judges in order to help bring more balance.

What is it about the background of a public defender that you think should be at the table in this context?

As a public defender, my clients are among our most vulnerable, and therefore the most impacted by the decisions of the governor’s council. Because I’m a public defender, I’m on the front lines. I see what’s happening in our criminal courts every day. 

I know that judges are incarcerating people for relapse all the time. I see it all the time, and whether it’s my client or somebody else’s client, it’s heartbreaking every time. The science is clear that addiction is a chronic, recurring disorder of the brain that does not respond to negative consequences. Yet that’s what we do to people in relapse. That’s what judges are doing in courts in Massachusetts and, I assume, all across the country. 

Science is also very clear that incarcerating someone for a relapse is the most harmful thing that we can do. It isolates them. It takes them away from their homes, their families, their communities, jobs and homes that they’ve worked very hard to get. It takes them away from existing treatment that they’re getting. We also know that people are most likely to overdose after they’ve been released from prison, so we are doing the single most harmful thing that we could do for someone in relapse. We’ve simply got to stop doing this. Instead of punishing people for relapse, we need to figure out where there was a break in their lines of defense, against their addiction, against their substance use disorder, and make it stronger.

You mentioned the disparity between prosecutors and public defenders among criminal court trial judges. Another recent report found an even larger gap looking at superior and appellate court judges in the state. What do you think the effects of this are?

If you are a prosecutor, you never have a conversation with a defendant. You have no way of understanding who they are, what their lives are like, what their circumstances are. As a defense attorney, I have those conversations with my clients, so I have a really good understanding of where they’re coming from. That’s why, I think, you see a very punitive attitude.

We often see sentences that are overly harsh. There are certainly instances where people need to be sent to jail; there are people who pose a danger and they should be behind bars. But we often see folks who are given overly harsh sentences which cause more problems than they solve. Someone who has been a public defender understands that in a way that a prosecutor or corporate attorney never can.

I do want to say that there are prosecutors who become wonderful judges. So I’m not anti-prosecutor. I’m simply saying that someone has to have cultural competencies, someone has to understand the issues that the people who appear before them are dealing with. We need to make sure that our judiciary really understands people, and that it really is about justice and not just about punishment. 

Incarceration in Massachusetts has one of the highest racial disparities in the nation. What responsibility do you think Massachusetts judges bear in this?

Judges play an enormous role. When people see racial disparities in our courts, they say, “Oh, look at that systemic racism, it’s terrible.” It’s like this abstract concept, systemic racism. But except for the decision on what crime someone is charged with, which is a decision that’s made by district attorneys, every other decision that contributes to our racial disparities is made by judges. It’s bail, whether someone is held on bail, whether they’re released on personal recognizance, whether there are conditions associated with their release. It’s sentencing, it’s terms of probation, it’s whether they’re found in violation. 

All of those decisions are made by judges, and in Massachusetts, in all of those instances, if you are a person of color, you anticipate a worse outcome. We’ve got to make sure that we have judges who are ready, willing and able to tackle systemic racism with every tool that the law allows. (Editor’s note: A study commissioned by the state supreme court in 2020 showed that white defendants receive shorter prison sentences in Massachusetts; other studies have shown disparities at other stages of the system, such as gaps in the rates at which white applicants and Black applicants receive medical parole.)

What is your response to people who might say this is not what judges are supposed to be thinking about, that they’re only meant to call balls and strikes?

The ‘balls and strikes’ line was famously coined by Supreme Court Chief Justice John Roberts, who turned out to do something very different from what he said that he would do. It is important for judges to follow the law, but judges interpret the law, and the interpretation of the law comes from who they are and what their values are. 

For example, we’ve got to make sure that we have judges who have a reasonable interpretation of the Second Amendment so that we can enact, uphold and enforce sensible gun safety laws. Someone can say, it’s just going to be balls and strikes and I’m just going to follow the law, but at some point, they are going to have to make a decision based on their values. 

Their values will impact how they interpret the law, and their experience, or their lack of experience, will have a profound impact on their ability to understand the person who appears before them and how insightful they are. This is critically important.

I’d like to turn to the role of the governor’s council specifically: The body does not have the power to choose judges; it can only review the governor’s nominations, and it does that on an individual basis. What authority does that give you to push this agenda? 

It has to do with the conversation that you have with nominees and what they say on the record during their confirmation hearings. Governor’s councilors don’t just vote yes or no. They also talk with nominees. So I can share with them what I know and, because the hearings are public, get the nominees on the record as to these positions and then hold them accountable if they fail to uphold the standard that they said they would.

For example, I’m very concerned about the failure of prosecutors to disclose potentially exculpatory evidence. There was just a big decision handed down by the Massachusetts Supreme Judicial Court, Graham, which found that the Hampton County DA breached its duty to disclose potentially exculpatory evidence to defendants. My question is, where were the judges while these breaches of duty were taking place? Why were judges not ordering prosecutors to turn over potentially exculpatory evidence?

Do you also think you could shape nominations before nominees get to the council?

Yes, I do. I think that when you raise standards, you are signaling to potential nominees that they need to reach that standard. And that does have a powerful influence.

In Massachusetts, the governor appoints a judicial nominating commission to review applications, and this commission then recommends people to the governor. By the time they get to the governor’s council, the vetting process has been pretty thorough. So it’s about making sure that those nominees are upholding the high standards that the people of my district want them to.

We’ve talked a lot about the governor council’s role in reviewing judicial nominees. One other important role is that it reviews pardons and commutations issued by the governor. Those have been rare in Massachusetts. Are you hoping to see or push for shifts on how these matters are handled?

Governor Healy has recommended more people for pardons than any governor in the modern era, and is to be commended for that. But in the last 14 years, we’ve had a total of four commutations, only four, and we haven’t seen any recommendations for commutation from the current governor. I would absolutely push for more commutations: Commutations can correct an unduly harsh sentence. There may be someone who has already served a number of years, is rehabilitated, does not pose a danger, is ready and willing and able to be released and to lead a good life. 

This interview has been edited for length and clarity.

The post The Public Defender Who Just Won Power Over Confirming Massachusetts Judges appeared first on Bolts.

Most obviously, these courts have become an urgent route for liberal litigants in light of conservatives’ durable majority on the U.S. Supreme Court. State courts get to interpret state constitutions, which often protect rights and liberties more expansively than the U.S. Constitution, and they’ve proven friendly to arguments that wouldn’t succeed in federal court. The right has also focused on them to expand its control over the judiciary.

But these courts have even more clout than you may realize. They can shape virtually any policy area that state and local governments touch. They’re likely to have the final word on all cases filed in state courts, and many play additional roles that extend far beyond deciding cases, from crafting the rules of criminal trials to taking part in redistricting and certifying elections.

And yet these courts’ exact powers and procedures often remain well under the radar. What justices do and how they’re selected varies widely from state to state, and it always differs from the federal system. Most states elect justices but have their own twist on electoral rules, while some courts are shaped by commissions largely out of public view—and nearly all serve some idiosyncratic function with little scrutiny. These distinctions all influence how each court acts and what might be levers of change.

Today Bolts is publishing a new state-by-state resource that plunges into the weeds of these critical judicial powers. For each of 54 courts—accounting for the highest court in all 50 states, two of which have two separate high courts, plus Puerto Rico and D.C.—we cover every nook and cranny of how they are organized, what functions they serve, and rules for judicial selection.

But here we also wanted to take a step back. Why should we care about state supreme courts? What types of cases do they even hear? And what do we know about the balance of power between liberals and conservatives foothold on these courts across the country? Below is our FAQ to answer your big questions on state supreme courts.

I follow the U.S. Supreme Court: Why also care about state supreme courts?

If state and local governments have any involvement in an issue, you can bet that state supreme courts shape public policy on it. Why is abortion more widely available in this state than in neighboring ones? Why are police officers harder to prosecute in one jurisdiction over another? Why does this state better protect the rights of employees or access to mail-in ballots? The answer often has to do with how legal cases were resolved by state supreme courts, and who was sitting on them when they did.

In fact, many cases begin and end in state court, and never interact with federal judges. That includes countless civil lawsuits, and the vast majority of criminal prosecutions. These cases are heard within each state’s separate judicial system, and then work their way to the top state court that has supreme authority over their outcomes.

That’s how state supreme courts end up with the final word on critical cases—whether a lawsuit against South Carolina’s abortion restrictions, the appeal of a death sentence in Florida, or the legal battle over Illinois pensions. Some of these high courts also have idiosyncratic roles such as drafting bail schedules or approving pardons, and they can shape the rest of the judicial branch: That’s information that Bolts’ new state-by-state resource supplies.

Why would a case end up in state courts instead of federal court?

By-and-large, federal cases involve allegations that something or someone violated federal laws or the U.S. Constitution, or involve large financial amounts, inter-state disputes, or federal agencies. 

Everything else is likely to end up in state court, and possibly escalate to a state supreme court. 

These can be civil cases—you can bring a lawsuit in state court, especially if you’re invoking your state’s laws or your state’s constitution—or they can be criminal cases. Every state has its own criminal laws, and local prosecutors can charge people for breaking them in state courts; and if you’re convicted of a crime, you can appeal all the way to your state’s high court. 

What’s the role of state constitutions?

The rights inscribed in the U.S. Constitution only set a floor. Each state has a constitution that may have different language or protect rights that the U.S. Constitution doesn’t, at least if a state supreme court interprets it that way. How receptive a given court will be to such arguments, of course, will depend on its membership.

For instance, the U.S. Constitution’s prohibition on “cruel and unusual” punishments is mirrored in many state constitutions, with some even banning “cruel or unusual” punishments, a grammatical tweak that may justify more expansive protections. And in each state, the supreme court will effectively have the final word on what exactly those clauses forbid.

In light of federal courts’ sharp turn to the right, many progressive and civil rights groups have prioritized filing state lawsuits by crafting arguments that rely on their own state’s constitution. They may argue, for instance, that its language enjoins climate action or protects reproductive rights.

But can’t the U.S. Supreme Court step in regardless? 

Yes, if you’re unhappy with how your state supreme court decided your case, you typically can appeal to the U.S. Supreme Court. But that court hears very few cases. It’s also extraordinarily unlikely to consider a case that involves a state supreme court interpreting its own state’s constitution or statutes.

In practice, state supreme courts have the final word on what rights their state constitutions provide, and on nearly all cases and lawsuits that work their way through the state court systems. 

So what do these state supreme courts do, day-to-day?

Their primary role is to review decisions made by lower courts. Every state has its own judicial pyramid, like the federal system: there are trial courts, typically appeals courts, and a supreme court at the top. (There are variations on this structure; most notably, Oklahoma and Texas have separate high courts for criminal and civil matters.)

State supreme court justices decide whether to take up a case for review. 

But these courts also serve many other functions. Most are responsible for supervising the operations of their state’s entire judicial branch, putting them in charge of vast bureaucracies. They appoint people to key spots, and decide on rules that everyone else must follow, from attorneys to lower-court judges. In many states they also write the detailed procedures that govern any criminal case, including major matters like how bail or sentences are calculated.

Some courts have even more direct powers. In Arizona, justices witness election certification. In Nevada, they sit on the pardon board. In Tennessee, they appoint the attorney general.

Our state-by-state database highlights these unique powers for every high court, including the role each plays in crafting the rules of criminal procedures, and in various tasks relating to elections.

How do states decide who sits on their supreme courts? 

Every state sets its own rules for how justices are selected and how they remain on the court, and no two states do it exactly the same—and none do it exactly like the U.S. Supreme Court.

One rare trait that unites nearly all states is that justices serve set terms. They are on their court for defined periods of time and then must seek a new term. Only in Rhode Island do they serve for life with no age restrictions, like they do on the U.S. Supreme Court. 

This alone makes the membership of state courts far more fluid than the U.S. Supreme Court’s. To top it off, some states even impose a mandatory retirement age, often between 70 and 75. 

Otherwise, state systems differ a great deal. Broadly speaking, they fall into two big buckets as to how justices make it on the court.

Some states elect their justices from the get-go. People not yet on the court can run for a seat, and incumbents who want new terms may face challengers. States like North Carolina and Wisconsin, for instance, consistently have heated judicial elections. 

In other states like Indiana and Vermont, justices are always first appointed onto the court, typically by a governor. But these states vary on whether an appointed justice faces elections once they’re on the court. In many states, justices must face retention elections at the end of their term—up-or-down elections in which voters decide whether an incumbent can stay on the court. 

States also vary on how much latitude governors have when they select a justice: Some governors are free to choose anyone without even worrying about legislative confirmation. Governors making high court appointments in other states, like Missouri, are much more constrained and must choose from a shortlist preselected by a nominating commission over which they may have little control. And in Virginia and South Carolina, supreme court appointments are made by lawmakers with little involvement from the governor.

In practice, though, the difference between elections and appointments can get very blurry. 

Take Minnesota and Georgia, which have regular judicial elections but nearly all sitting justices first made it onto the court through an appointment. That’s because justices often resign before their term is over, letting governors select a replacement with little constraint. Once appointed, these incumbents rarely face any opposition when they run for a full term. 

Does my state have elections? 

Thirty-one states organize some sort of elections for supreme court justices. 

In some states, justices only face voters once they’ve already been on the court for a few years, and only in the form of retention elections—no named challengers, just a yes-or-no vote on whether they should stay on the court.

Other states organize regular elections for all judicial seats: Every few years, any candidate who meets the qualifications to be a judge can run for a seat whether or not there’s an incumbent, and the winner joins the court. That sounds simple enough, but each state comes with some twist. Elections may be held at odd times, they may be canceled at the drop of a hat, and they may be governed by unusual rules that don’t apply to the state’s more prominent elections. 

To complicate matters further, states may also mix up these models, using either regular or retention rules depending on the circumstances. 

Are judges partisan or political officials?

Only nine states elect judges in partisan elections. Candidates there may file to run as a Democrat or Republican. 

Still, in states that hold nonpartisan elections, parties and groups that support a political cause frequently get involved. Elections in Wisconsin are ostensibly nonpartisan, for instance, but are also very polarized. Other states with nonpartisan systems have sleepier elections. 

Similarly, in states where justices are appointed, party affiliation is not a formal factor in the process, but the political leanings of prospective appointees are often a factor on the decisions of the governors or lawmakers who make the selection—much like in the federal system.

That may be true even in states that constrain a governor to a list preselected by a nominating commission made up of legal professionals—a process that is meant to be more meritocratic but does not eliminate political considerations. The shortlist may present various options that preserve a governor’s ability to shape the court’s direction, and some commissions also have an ideological bent. There’s often backdoor maneuvering about who sits on them, with governors or legislative leaders shaping their  membership. Florida’s commission, for instance, has helped Governor Ron DeSantis move the state’s high court to the right, while New York’s has faced scrutiny for leaving jurists of color off of nominating lists. In Iowa, the GOP recently changed its commission to give the governor more control over who sits on the commission.

Can you tell me which party, or which ideological side, controls which court?

This is a difficult question. Only 12 high courts explicitly integrate justices’ party affiliation into their selection. That’s usually because the justices are elected in partisan elections, but it may also be because there’s a formal requirement (Delaware) or informal convention (New Jersey) that there be some partisan balance on the court.

In those states, it’s at least possible to say which party holds a majority of the court.

As of today, 6 of these courts have a Republican majority and 6 have a Democratic majority. (Two of those Republican majorities are in Texas, which is a rare state with two high courts.)

But judicial philosophies do not always map onto judges’ partisan affiliation.

Inversely, courts that are technically nonpartisan may have a strong ideological lean. They may have a coherent majority that constantly favors liberals or conservatives, or justices whose careers demonstrate a strong affiliation to a political cause. In Arkansas, for instance, a majority of supreme court justices now have ties with the Republican Party after Governor Huckabee Sanders appointed the chair of the state GOP to the court this summer. Wisconsin’s court flipped from a conservative majority to a liberal one as a consequence of the 2023 elections. New York’s conservative-leaning court took a step to the left this spring after a heated battle in which progressive groups fought the governor’s initial nomination. 

Assessing a court’s politics may then entail identifying other proxies for judicial ideology. In states with judicial appointments, we can start by assessing the party of the governors who selected the justices. In Minnesota, for instance, all justices as of now have been appointed by a Democrat, while in Arizona they’ve all been appointed by a Republican. 

This is a reliable predictor in some states—but it can be an imperfect proxy in others since some governors must get their choices approved by the legislature, or are constrained to choosing from a commission’s shortlist. Then again, governors can try to craft these commissions to their liking to gain more influence over the process, frequently far out of view of the general public.

The devil is in the details, which is why Bolts’ state-by-state database lays out more information on each court’s process.

How do state supreme courts affect a specific issue I care about?

On any issue, lawsuits may put a state’s statutes and practices under court scrutiny, at which point it comes down to what’s written in the state’s constitution and laws—and who has the power to interpret them. Many courts also have rulemaking powers that give them the ability to upend some matters even more directly. Here are some examples of what to watch on just six key issues.

If you care about abortion rights: The U.S. Supreme Court overturned Roe v. Wade in 2022, but state supreme courts can interpret their own constitution as recognizing a right to abortion. A Bolts analysis found that a dozen had done so by the time of the Dobbs ruling, and more since. But conservative gains can undo these rulings. In 2018, Iowa’s supreme court ruled that the Iowa constitution guarantees a right to abortion but then reversed itself in 2022 after the arrival of new conservative justices. 

If you care about criminal justice: State courts shape the rights of people accused of crimes at every stage of a criminal case, and some courts have pushed back more than others against invasive police practices or extreme sentences. Many supreme courts also write their state’s rules of criminal procedure—lengthy codes that govern how cases unfold, from the issuance of warrants to the calculation of sentences. Some courts even set bail schedules. This is an often-overlooked but potent policymaking role. In 2021, for instance, Arizona’s supreme court eliminated peremptory strikes, the practice by which attorneys can eliminate someone from the jury pool without stating a cause. Explore our state-by-state guide to learn the extent of each court’s rulemaking role with regards to criminal procedure; the guide also specifies for each court whether a court is involved in drafting sentencing guidelines and setting bail schedules.

If you care about LGBT rights: Some state constitutions provide greater protections for individual rights than the U.S. Constitution, and LGBT activists have turned to state courts when federal courts have been unwilling to affirm certain rights. In 2003, Massachusetts’ supreme court recognized marriage equality, setting off a wave of supreme courts that did the same before the U.S. Supreme Court legalized same-sex marriage nationally. And as states are now passing new anti-trans legislation, state advocates are again turning to state courts.

If you care about education: Many state constitutions contain provisions that state courts have interpreted as creating a right to education, and activists have argued in court since the 1970s that unequally or inadequately funding schools is unconstitutional.

If you care about the environment: As the climate crisis rages on, the regulatory power of environmental agencies often hinges on decisions by state supreme courts. Plaintiffs have also invoked environmental rights to push for climate action, with some success; Hawaii’s supreme courts, for instance, recently affirmed a robust interpretation of such rights in its state constitution, and a case in Montana that involves a right to a “healthful environment” could soon make its way to that state’s supreme court.

If you care about how elections are run: The shape of democracy can hinge on the composition of state supreme courts, which play a crucial role in blessing or rejecting voter suppression. Lawsuits are constantly filed in state courts challenging election law and practices, anything from voting procedures and gerrymandered maps to legislation restricting access to mail ballots. A change in the court’s membership can lead to major changes in election law, as in North Carolina this year. And some supreme courts are tasked with more direct roles in the running of elections, like supervising the drawing of new maps or participating in the certification of election results.

For more information, explore our state-by-state guide to how each state’s high court.

The post Everything You Always Wanted to Know About State Supreme Courts appeared first on Bolts.

New Jersey Governor Phil Murphy announced last month that he was nominating Michael Noriega, an immigration and criminal-defense lawyer, to the state’s supreme court. If confirmed by the Senate, as seems likely given the reception so far, Noriega would be the Democratic governor’s fourth appointment on the seven-member court. 

Noriega would also be the first former public defender to join the New Jersey Supreme Court in the state’s history.

Amol Sinha, executive director of the ACLU of New Jersey, expects this milestone to enrich the court’s deliberations. 

“Having someone like Mike Noriega, who has been a public defender, has represented people with lesser means, and has represented immigrant New Jerseyans, will bring necessary perspectives to the court,” he told Bolts. “An increase in diversity on the bench–in terms of race, immigrant history, and professional experience–is powerful.”

In his speech, Murphy didn’t shy away from Noriega’s public defender background, highlighting this work as a key reason for selecting him. “Public defenders see firsthand how the law impacts ordinary people,” Murphy said. “More often than not, they represent individuals from our most marginalized communities in their greatest moment of need.”

“That is an obligation we hold sacred because in America every defendant is guaranteed legal representation regardless of their ability to pay. It doesn’t matter if you’re rich or poor, powerful or powerless,” he added. 

He also highlighted Noriega’s background as the child of Peruvian immigrants, praising his life as a “quintessentially Jersey story.” Noriega would be the court’s only Hispanic justice.

Murphy’s selection and words were signs of how quickly the ground is shifting for judicial nominations.

Judicial nominees nationwide and historically are far likelier to have built their career as prosecutors and in corporate law firms than representing indigent defendants. But progressives have called for more professional diversity on the bench and, with particular attention given to judges with experience in public defense and civil rights litigation. President Biden has responded by considerably expanding who makes it on the federal bench, getting more former public defenders confirmed to circuit courts in two years than President Barack Obama did in eight, let alone President Donald Trump. 

Justice Ketanji Brown Jackson, Biden’s sole U.S. Supreme Court appointment, is a former public defender, as is Judge Arianna Freeman, the first judge he selected for the U.S. Court of Appeals for the Third Circuit, which covers New Jersey.

Most governors have not followed suit and public defenders are still largely missing from state supreme courts, as Bolts reported last year, but the tide is turning in some states. Governors in Oregon and Washington added public defenders to the bench, and progressives are pushing back elsewhere. New York’s Democratic Governor Kathy Hochul recently saw her judicial nominee Hector LaSalle, a former prosecutor, defeated in the Democratic-led Senate, in part over concerns about his record on criminal justice. Nonetheless, a majority of the members of New York’s highest court are former prosecutors and none have worked as a public defender.

Similarly, in New Jersey, three of the justices are former prosecutors. Noriega would break that streak.

Parimal Garg, the governor’s chief counsel, credits Biden’s work on the issue from before he even took office. Biden stressed to senators that he would be seeking to enhance demographic and professional diversity—including, specifically, public defenders—in his judicial nominations. 

“I think if you’re looking at a seven-member body, you really want a court that reflects the totality of the legal profession,” Garg told Bolts, referring to the New Jersey high court. “It’s a recognition of the fact that, if you spent a large part of your career as a public defender, you’re going to have a very different perspective on the criminal justice system than if you had spent the majority of your career as a prosecutor.”

The absence of experiential diversity, he added, can harm the court. Without it, “it becomes challenging for that court to come up with jurisprudence that really understands where everyone is coming from in terms of the different roles that people have to play.” 

Jennifer Sellitti, training director at the New Jersey Office of the Public Defender, used to work with Noriega in the Essex County defenders’ office and says she is happy for him personally. She is also glad to see that someone who worked in a public defender’s office may join the supreme court.

“The fact that that Mike Noriega has sat next to a person to whom he was appointed, to whom he had built a relationship of trust and understanding, and handled those kinds of cases before the court, it just gives him a window and a perspective that is something that, quite frankly, up until now our court had been lacking,” she told Bolts.

If confirmed, Noriega would take the seat of Barry Albin, who was seen as a leading liberal voice on the court until he reached the mandatory retirement age of 70 in 2022. Albin worked as a prosecutor early in his career but also had substantial criminal-defense experience—though not public defender experience—before joining the court in 2002. Garg said that Murphy “thought that Mike [Noriega]’s experience and values really made him an ideal successor to Justice Albin.” Among other reasons, Albin had been president of the New Jersey Association of Criminal Defense Lawyers, and Noriega was the association’s president-elect at the time of his nomination.

Albin told Bolts that someone with Noriega’s background will benefit the court. “I believe that Michael Noriega is going to give a different, unique viewpoint—from a person who has mostly specialized in immigration work and criminal defense work,” he said. 

“Experience makes a difference,” he added. “Currently on the state supreme court, there are three former assistant United States attorneys.” 

Albin said his own work as a criminal defense attorney and other aspects of his career were important to his tenure on the supreme court. “I found that to be very helpful in the discussions that we had on the court. I was able to provide knowledge that other members of the court did not possess. And that was true of other members of the court, who had specialized in other areas of the law, who were able to inform me and others from their perspective,” he said. “That doesn’t mean that other members of the court necessarily assent to whatever somebody else is saying, who may have specialized in a particular area of law, but it certainly informs deliberations on the court, makes discussions much more rich, and much more informative.”

In a rare study of the effects that former public defenders can have on the bench, two political scientists found last year that former public defenders are less likely to sentence people to long prison sentences. In the early stages of the COVID-19 pandemic, the New Jersey Supreme Court issued important decisions that helped relieve the prison population, though it has also taken a cautious approach to issues touching criminal justice.

Adding Noriega’s perspective could be important in future cases likely to come before the court, Sellitti, from the public defender’s office, said. 

“I’m really excited about having his voice on the court when it comes to Fourth Amendment issues, cases that involve discussions of race and systemic racism,” she told Bolts, before also mentioning cases that touch police accountability, discovery, and immigration detention.

In some ways, the New Jersey Supreme Court is an easier court than most to advance this changed perspective because the court itself already has, as an essential element of its organization, an appreciation for what Albin called “institutional balance.” 

“There is an unwritten rule in New Jersey that there has to be a political balance,” he said. “So there cannot be more than four members of one party on the court at any one time. And that has been respected by every governor” since New Jersey updated and modernized its state constitution in 1947. 

What that means in practice is that Murphy has already appointed one Republican to the bench, Justice Douglas Fasciale, and is likely to appoint a second when Justice Lee Solomon reaches the mandatory retirement age of 70 in 2024. Because of this system, virtually all of the lawyers Bolts talked with about the nomination said that New Jersey’s court and nominations tend to be less partisan than at the national level and in other states. 

Still, Murphy’s earlier nomination to the court stalled for a very long time. As his first nominee to the court in 2021, the governor chose Rachel Wainer Apter, a former advocate with the ACLU, but a Republican state senator from Apter’s home county blocked her confirmation for more than a year under a convention in the state Senate known as senatorial courtesy, Bolts and The New Jersey Monitor reported last year.

Apter was confirmed in October as part of a deal that also involved the confirmation of Fasciale. 

Noriega is unlikely to face similar delays. He has the support from all of his home-county senators, including Republican Jon Bramnick, who is Noriega’s law partner. 

The governor’s office says it hopes for quick consideration of Noriega’s nomination in coming weeks, and Garg is looking forward to Noriega’s voice—and experience—being added to the court. 

“All of them bring something very different to the table,” he said, “and we think that’s really important.”

The post New Jersey Is Poised for Its First Ever Public Defender Justice appeared first on Bolts.

Associate Judge Rowan Wilson, a progressive jurist who is already a member of the court, will replace DiFiore as Chief Judge. Caitlin Halligan, a well-known private lawyer who served as New York’s solicitor general in the 2000s, will take Willson’s seat as associate judge.

Liberals hope that these changes push the court to the left. Over the past several years, they’ve watched with frustration as a bloc of four judges, enough for a majority on this seven-person court, consistently sided with corporations, police, and prosecutors, leaving progressives like Wilson to write dissents in cases that tested matters’ like workers’ ability to seek damages or law enforcement’s power to conduct warrantless searches. 

Now Wilson, the state’s first Black chief judge, will enjoy new prerogatives to shape the state’s vast judicial branch to his liking—a chief judge has influence over the rules for other courts and authority to appoint people to key positions like the Commission on Judicial Nominations—and progressives have vocally celebrated his promotion ever since Hochul announced it last month. 

“Rowan Wilson, at least in his opinions, has signaled that he’s really attuned to the needs of the most vulnerable New Yorkers,” said Noah Rosenblum, a law professor at NYU Law. “There are reasons to anticipate that he will use his powers as chief judge to try to make the administrative machinery of New York courts more responsive to those values.”

But when it comes to the raw math on upcoming rulings, it’s Halligan who matters. Hers will be the new vote with the power to flip outcomes when she votes differently than DiFiore would have. And even if she does end the conservative bloc’s predictable control of the court, how consistently she sides with its liberal members is a separate question; besides Halligan, the court presently has three more right-leaning members, two judges who typically lean left (including Wilson), and one who is often a swing vote. 

How exactly Halligan reshapes this intricate balance remains to be seen, in part due to a legal question that surrounds her nomination, and also due to her career being something of an ideological Rorschach test for court observers.

When I told Rosenblum I was setting out to ascertain how her nomination may affect the court’s future cases, he quipped, “I don’t envy you.”

Just three months ago, the landscape in the state Senate looked dramatically different. Progressive groups in December rallied against Hector LaSalle, Hochul’s first choice to replace DiFiore. Within days of Hochul’s announcement, reproductive rights organizations, unions, and criminal justice reform advocates denounced LaSalle’s past rulings on abortion, defendants’ rights, and labor. Half-a-dozen Democratic senators said they opposed him within a day; and in January, most of the Democratic caucus voted against him when the state Senate rejected him.

No such tumult greeted Halligan. Her confirmation process was comparatively very quiet, and her confirmation this week was backed by nearly all Democratic senators. (Many Republicans opposed it.) 

It’s not that progressives rallied behind her enthusiastically. When I asked LaSalle’s critics about Halligan, they often began by offering lengthy praise for Wilson, whom Hochul announced on the same day as something like a two-judge deal. In a statement this week, Senator Jessica Ramos, who had quickly opposed LaSalle from the left in December, said she was “choosing to be hopeful” that Halligan would align with Wilson’s wing of the court. So what drove the left’s widespread attitude of guarded support?

Whereas DiFiore was a former Republican politician (though she was selected for the bench by Democratic Governor Andrew Cuomo), Halligan has long been associated with Democratic or liberal legal circles. A former clerk of U.S. Supreme Court Justice Stephen Breyer, Halligan was nominated by then-President Barack Obama in 2011 to one of the nation’s most prestigious federal courts, the D.C. Circuit. But she faced a yearslong blockade by U.S. Senate Republicans, who filibustered her on nearly-perfect party line votes. 

In the absence of many other signposts, this background has served as a sort of proxy this month for Halligan’s judicial politics. It has fueled an expectation, which I heard from a number of state sources this month, that she’ll pave the way for the court to issue more liberal rulings.

“The Obama administration thought she was liberal enough,” said Vincent Bonventre, a professor at Albany Law School who studies the New York Court of Appeals, adding that Obama’s nominees to the nation’s highest courts did tend to lean left. “So you would think that the vetting has already been done.” 

Still, some of the same groups that successfully fought LaSalle expressed caution toward Halligan. As a longtime private lawyer, Halligan has taken on many cases on behalf of corporate clients, and progressive organizations raised concerns about a number of them in recent weeks. 

While working at a law firm last decade, Halligan represented Chevron when the oil company targeted human rights lawyer Steven Donziger with a racketeering lawsuit, after Donziger helped secure billions in damages due to Chevron’s polluting activities in the Amazon rainforest. 

In 2014, Halligan represented UPS in a high-profile case, heard by the U.S. Supreme Court, in which she argued that the Pregnancy Discrimination Act does not require corporations to make accommodations for pregnancy. (The court mostly ruled in favor of Penny Young, the plaintiff.) Halligan’s work on behalf of UPS drew criticism well before her nomination to New York’s high court. The legal publication The Flaw focused on Halligan’s work in Young vs. UPS in January as part of a broad jeremiad against Big Law, to make the case that attorneys who work on behalf of corporate clients should be accountable for “fueling inequality.”

After DiFiore’s resignation, prominent senators and progressive groups had urged Hochul to choose a public interest attorney or public defender to add professional diversity to the court, which mostly includes former corporate lawyers and prosecutors. (Halligan also worked as general counsel for the Manhattan DA’s office.)

One of these organizations, the Center for Community Alternatives, urged New York lawmakers to question Halligan about the “troubling” cases on which she has worked as a private attorney, while also acknowledging that her “contradictory record” contains cases where she defended more liberal positions. The New York Immigration Coalition on Wednesday called Halligan’s nomination “concerning” due to her “controversial record as a corporate attorney.”

The only Democrat who voted against Halligan on Wednesday was Jabari Brisport, a member of Democratic Socialists of America. Brisport did not reply to a request for comment.

Halligan has replied to these criticisms by distancing herself from the content of the claims she has made on behalf of her clients. These should not be taken as an indication of her own values, she has said, or of the outcomes she would prefer to see.

“In whatever capacity I represented a client, I’ve done my best to bring to the court whatever arguments there are on that client’s behalf,” Halligan said at her confirmation hearing on Tuesday.

She did not respond to a request for an interview for this story.

Halligan made the same point a decade ago, when she faced recriminations from the other direction by U.S. Senate Republicans for defending liberal policies while solicitor general in New York. The GOP zeroed in on legal work she had conducted on behalf of New York’s effort to hold gun manufacturers accountable for gun violence, calling her an “activist.”

Halligan’s allies responded at the time by describing her as a moderate. They played up other work she did in that role that was more likely to appeal to GOP senators, such as a memo she issued in March 2004 advising local officials to not issue marriage licenses to same-sex couples, effectively shutting down a mayor in Ulster County who days earlier had done just that, at a time where a few local officials were sticking their neck out for same-sex marriage. They also insisted that, in cases like her work against gun manufacturers, she was merely doing her job: representing the interests of her client, which in that case was New York State. 

Since much of Halligan’s legal career has involved such work, though, putting all that to the side would leave few tea leaves in which to decipher her judicial philosophy. 

It also raises the question of what would even count as a tea leaf at all. At a time when judges and courts’ ability to set huge swaths of policy is so transparent, what are lawmakers and the public supposed to evaluate as indications of how Halligan will approach her new role?

“We don’t have a ton of information that we can evaluate that reflect her own particular political or jurisprudential belief, and that presents a genuine puzzle,” Rosenblum said, while adding that the information we do have—including her selection by what he called federal Democrats’ “judicial nominating machine”—is consistent with a cautiously liberal jurisprudence.

“It’s very difficult to predict what kind of Judge Halligan will be,” Peter Martin, director of judicial accountability at the Center for Community Alternatives, told me on Wednesday. “She has spent her entire career as an advocate, and she has written close to nothing that wasn’t on behalf of a client, meaning her personal values and understanding of the law are obscured.” 

Sam Bagenstos, a law professor at the University of Michigan, was the lawyer who represented Penny Young in her case against UPS nine years ago. Despite their work on opposite sides of that case, he cheered Halligan’s nomination earlier this month.

“I’ve known Caitlin for more than 25 years and, based on many experiences with her over that time, am convinced she’ll be a progressive judge,” he told me. (Bagenstos, who currently works as the general counsel for the U.S. Department of Health and Human Services, insisted that he was talking in his personal capacity.) “Obviously, nobody can doubt her legal brilliance.”

Asked for what specifically he would point to as a public indication of this disposition, Bagenstos pointed to Halligan’s pro bono work on behalf of New York tenants, defending the constitutionality of rent stabilization against landlord groups. (One of New York’s most left-wing senators pointed to the same case this week to explain why she backed Halligan’s nomination.) 

On its face, this case is similar to the others: Halligan was working on behalf of her clients.

But Halligan said this week that her pro bono cases can offer unique insight into her values. They are all, after all, work she is choosing to do for free. Such cases, Halligan told a legal publication in 2019, “allow the [law] firm to engage in a meaningful way with matters of true public interest.” Other pro bono work from Halligan’s includes writing briefs in defense of the Affordable Care Act or representing employees with labor recriminations against Amazon. 

“Halligan argued in her confirmation hearing that her pro bono work best illustrates the legal outcomes she personally supports,” Martin said. “We’ll find out soon enough if she was telling the truth when she said that.” 

The biggest controversy that has greeted Halligan’s nomination does not concern her record. It’s about whether it was legal of Hochul to appoint her when she did.

In New York, governors choose judges out of it on a short list presented to them by a state nominating commission. Wilson and Halligan both featured on the list prepared by the commission to fill the vacancy created by DiFiore’s resignation; but technically, Hochul selected Halligan to fill a still-hypothetical vacancy, the one that would be left by Wilson once the Senate confirmed him as chief justice. Republicans and some legal scholars argued this is unconstitutional and that Wilson’s confirmation should trigger a new vacancy and a new shortlist before Hochul can fill it. State Democrats replied by passing a law that specified that Hochul was authorized to do this; they did so after Hochul announced her nominations. 

Heading into Halligan’s confirmation hearings this week, Republicans threatened to sue to block Halligan from joining the court. But The Times Union reported on Wednesday that the GOP did not file a lawsuit before Wednesday’s vote, and that it was unknown whether they could and would still do it in the future.

Hochul’s dual move sped up the process by months, and its apparent success brings the Court of Appeals back to full capacity for the first time since July. 

Bonventre, for one, expects the combination of Wilson’s promotion and Halligan’s arrival to make a significant political difference. 

“The court in recent years has been much more conservative than in the past,” he said. “I don’t think it will become a left-wing court, but will this court be more sympathetic to the rights of the accused? I think unquestionably. Workers’ rights? Unquestionably. Consumer rights? Unquestionably. The rights of people who’ve been harmed by others? Unquestionably.”

But the highest-profile case that awaits Halligan does not fit into these categories. It’s Hochul and other New York Democrats’ recent plea in state court to have another shot at drawing the state’s political maps. Last year, the Court of Appeals struck down Democrats’ gerrymanders in a 4-3 ruling, with DiFiore in the majority and Wilson in dissent, and ordered a trial court to draw remedial maps; this greatly helped Republicans in the midterms. If Halligan approached the issue differently than DiFiore and authorized a second bite at the redistricting apple, it may swing several U.S. House seats in 2024—and it could also affect control of Congress.

With that case still on the horizon, Democratic state senators this week celebrated Halligan for joining the court. “I’m sure the court can become the best appellate court in the nation with her on the bench,” Brad Hoylman-Sigal, who chairs the Judiciary committee, said on the floor. 

It’s become a core tenet of present-day progressive legal advocacy that state appellate courts could provide an antidote to the breathtaking conservative takeover of the federal bench. That view took off during the Trump presidency but has intensified since the Dobbs ruling in June.

Halligan signaled this week that she agreed with that notion, in what may have been her strongest hint of how she’d approach her new position.

“State courts are where the issues that are most important to the day-to-day lives of New Yorkers get decided,” Halligan told the Judiciary Committee during her confirmation hearing. “And it is where the scope of the New York constitution gets hammered out, a task that is especially important at a moment when federal courts appear to be pulling back on some key constitutional protections.”

The post New York’s Highest Court Takes a Step to the Left, Maybe appeared first on Bolts.

In 2018, Kahan joined Crime Stoppers of Houston, a nonprofit organization that since 1980 has sponsored an anonymous tip line that paid out rewards of up to $5,000 for information that helped solve cases. Soon after Kahan joined, Crime Stoppers took a more aggressive stance and began targeting a new crop of Democratic, reform-minded judges, eventually blaming them for a 2020 spike in murders that was seen across the country. Kahan even started co-hosting a regular segment with the local Fox affiliate called “Breaking Bond” to shame and blame individual judges for crimes committed by defendants out on bail. 

Kahan may soon gain more power to go after Texas judges. Governor Greg Abbott nominated him last month as a “citizen member” to the state’s commission on judicial conduct, an oversight body that hears complaints about local judges and whose recommendations can lead to sanctions or even suspension. 

Kahan acknowledged that his nomination might be controversial in a social media post celebrating the news last month, writing, “I get that ‘some naysayers’ are none too happy about this but I’ve always adhered to the philosophy that when you advocate on behalf of one faction, you generally infuriate the other faction.” 

Some Houston lawyers questioned whether Kahan could fairly field complaints against judges given his track record of going after them. 

“If you’re in my shoes and you’ve watched this guy sit here and unfairly scapegoat judges for following the law for the past few years, and all of a sudden you’re moving him to a position where he could literally have the ability to influence whether or not good and fair judges keep being judges, that becomes terrifying,” said Murray Newman, the incoming president of the Harris County Criminal Lawyers Association. 

Asked by Bolts whether he would bow out of cases that involve judges that he has campaigned against or criticized, Kahan said the commission has a recusal process that he will abide by “if a conflict of interest is determined on a case by case scenario.”

Kahan’s nomination, which is subject to confirmation by the GOP-run state Senate, highlights an increasingly harsh approach to the criminal legal system under Abbott. The governor and other state Republicans have dialed up crackdowns on local officials who have proposed reforms like detaining fewer people in jail pretrial or reducing the scale of prosecutions. In 2021, the governor successfully pushed the Texas legislature to pass a law setting limits on judges’ ability to reduce bail. This year, after years of attacking local Democratic prosecutors’ decisions to downplay charges for certain low-level offenses, Republicans have introduced legislation to circumvent or preempt the authority of local DAs. 

Abbott is also likely to push for new bail legislation as state lawmakers convene this month; Kahan, who supported Abbott’s bail bill last session, has joined police and prosecutors in urging lawmakers to initiate a process to amend the state’s constitution to allow judges to deny bail in more cases, which Abbott prioritized last legislative session. 

Krishnaveni Gundu, co-founder and executive director of the Texas Jail Project, which monitors conditions in local jails and advocates for better conditions, said Kahan’s nomination captures Abbott’s punitive approach to pretrial policy. “It’s clear that the governor has no interest in meaningful bail reform,” Gundu told Bolts. “Meanwhile people with mental illness and disabilities are dying in overcrowded jails while being detained pretrial.”  

Kahan has become a celebrity of sorts among Texas Republicans and other tough-on-crime politicians for helping fuel the backlash to landmark bail reforms that Harris County judges implemented in recent years to reduce the number of poor people stuck in jail on low-level charges. A Democratic sweep in the 2018 midterms shook up the Harris County judiciary and added some judges who sided with civil rights organizations that were suing the county over its bail system. Those new judges agreed to settle the lawsuit and implement changes to reduce the number of people in jail over a misdemeanor charge, as well as pushing for other reforms like no longer jailing defendants for being late to court or testing positive for marijuana. 

While Kahan has in the past voiced support for those changes, on TV he often insinuates that those reforms have led to more crime—despite years of reports and studies showing Harris County’s misdemeanor bail reforms have improved public safety. 

“If we sit back in silence, we’re just as guilty as those who are actually promoting this type of criminal justice reform or collateral damage that we’re seeing from this,” Kahan said in a video that Crime Stoppers posted to Facebook last year responding to criticism that the organization had become too active in judicial elections.

While barred from participating in political campaigns, the nonprofit Kahan works for depends on financial support from politicians like Abbott. An investigation last year by the Marshall Project and the New York Times showed that Crime Stoppers of Houston, the largest nonprofit of its kind in the country, has received millions of dollars in grants from Abbott’s office, which helped it weather financial stress in recent years. The investigation also revealed that the changes implemented by many of the Democratic judges that Crime Stoppers and Kahan have publicly criticized have hurt the organization’s bottom line; some local judges are no longer making defendants pay a $50 fee that had once contributed to a large part of its budget. (It’s common around the country for courts to require defendants to pay fees to private organizations.) 

Harris County District Attorney Kim Ogg, a conservative Democrat who ran Crime Stoppers of Houston about a decade before Kahan joined and gave the group $500,000 in 2021, has not faced criticism by the organization or Kahan, even though some local lawyers blame her office for not making more formal requests to increase bonds. Ogg, like Crime Stoppers, has targeted judges who supported reforms in Harris County, and her office has filed complaints to the state judicial commission to which Kahan was just appointed.

Throughout 2020, Ogg’s top lieutenant, first assistant DA David Mitcham, filed several reports with the commission against Franklin Bynum, a former public defender and reform-minded judge elected to the bench in 2018 who has frequently clashed with Ogg. Mitcham complained that Bynum had released too many defendants, reduced too many sentences, and displayed “an unprofessional and irredeemable bias against the State of Texas and its prosecutors.” Elements of the complaints were personal and inflammatory: “His erratic behavior and demeanor have deteriorated to such an extent that he may be suffering from some sort of mental impairment of undetermined cause,” Mitcham wrote to the commission on Sept. 25, 2020. 

Ogg’s office attached to its complaint a photo of Bynum wearing a “Defund Chicago Police” T-shirt, which the Houston police union shared on social media. The judicial commission held a hearing about the complaints last April, a month after Bynum had already lost his primary election to a prosecutor in Ogg’s office. At the time, six of the commission’s 13 members were judges appointed by the all-Republican Texas Supreme Court, five were non-attorney “citizen members” appointed by Abbott, the Republican governor, and two were lawyers appointed by the state bar.

Members of the judicial commission lingered on the photo of Bynum in the “defund” shirt. “Violence in general has increased in the cities because the police have been maligned and degraded and disparaged, and violence against them has increased,” Janis Holt, an Abbott appointee and vice chair of the commission, told Bynum before saying her son is a cop. “When I see someone who wears ‘defund the police,’ it tells me that you don’t care about my son and his family and my granddaughter.” 

The judicial commission recommended in July that Bynum be suspended, and even though he left office anyway at the end of 2022, that recommendation is still pending before the state supreme court. Bynum, who is fielding yet another complaint filed against him by another judge on his way out of office, says he’s concerned about Kahan’s involvement in any of his future hearings. 

“I do remember once that he basically accused me of being responsible for murders in the county,” Bynum said, referring to Kahan’s statements while at Crime Stoppers. “I don’t think anybody who uses that kind of language with me should ever sit on a commission that’s deciding my fate professionally, and yet now I’m looking at a situation where I may not even have a way to challenge him doing that.” 

Kahan told Bolts that he has not made public comments about Bynum. “Not sure where he is coming from,” Kahan said.

Houston lawyers say Kahan, Ogg and Abbott are reacting to a local judiciary that has started to finally incorporate more than just career prosecutors. “Before, Andy wasn’t an advocate who really had a nemesis, because he liked the DA, he liked all the judges, because they were all former prosecutors and he didn’t really have a lot to complain about,” Newman told Bolts. “It’s just a much more defendant- and constitutional rights-friendly atmosphere now than it was in the 1990s and early 2000s.” 

Newman called Kahan’s selection for a watchdog role over judges an attempt “to turn back the clock.”

“Really, in a nutshell, we’ve got judges who are not soft on crime, they’re just fucking fair,” Newman said. “And the DA’s office is so used to having that extra prosecutor sitting on a bench in a robe that they think fairness is biased against them.” 

Ogg and Kahan both testified at the legislature in favor of the restrictions on pretrial releases that passed last year, and which appear to have compounded deadly and dehumanizing conditions inside local jails. The director of a state commission tasked with oversight of county lockups in Texas warned in a meeting last November that the rise in county jail populations across the state, from 62,000 jail inmates in October 2021 to 70,000 last October, “should be raising red flags for everyone.” More people experiencing homelessness and mental health episodes are now getting stuck in jail on low-level charges like criminal trespass, one sheriff testified at the meeting. 

Kahan has dismissed the notion that new restrictions are straining local jails that already struggled to meet the state’s baseline standards for treatment—including the Harris County lockup, which saw a record number of deaths last year. “Wow—what a disingenuous stretch to blame legislation meant to keep defendants charged with certain violent crimes from getting a get out of jail free card with the amount of deaths at the Harris County Jail,” he wrote on Facebook in reaction to local media coverage. The county’s top jail official resigned earlier this month as deaths, overcrowding and staffing problems continue to plague the lockup. 

“Andy Kahan has been a voice consistently disrupting the idea that people are innocent until proven guilty,” said Jay Jenkins, an attorney with the Texas Center for Justice and Equity, which has advocated for bail reform in Harris County. Jenkins co-authored a 2021 report documenting media bias and misinformation around bail reform in Houston, which cited rhetoric by Kahan. 

“The impact of publicly disseminating views that undermine confidence in the principle of innocent-til-proven-guilty is that you get a lot of people locked up for stuff that they didn’t do,” Jenkins told Bolts. “This notion that people are guilty upon arrest, which is now even more represented on the statewide judicial council, is also at the heart of our jail overcrowding issue,” 

Kahan isn’t the only noteworthy tough-on-crime persona Abbott recently appointed to a state commission tasked with oversight of the criminal legal system. Last summer, Abbott appointed Austin police officer Justin Berry to a state police commission following his indictment on charges of assaulting protesters during the demonstrations that followed George Floyd’s murder in 2020.  

Kahan’s appointment will be taken up by the Senate’s nominations committee, a body that typically does not hold Abbott’s appointees to hard scrutiny. The committee has yet to hold a hearing for Kahan as of publication. 

Last November, he appeared on a Houston TV show to discuss a 30-year-old murder that he said helped launch his career advocating for victims of violent crime. He had been working in the parole division of the Texas prison system in 1990 when a Houston police officer named James Irby was shot and killed during a traffic stop. After seeing news of the murder, Kahan said he pulled his department’s file on the suspect, Carl Buntion, and saw that Buntion had recently been released on parole after serving only 13 months of a 15-year prison sentence for sexual assault of a child. Kahan said the discovery spurred him to meet with the officer’s widow and help her advocate for fewer parole releases and more prisons to hold people. 

The tragedy helped drive media coverage that eventually bubbled into public outcry over prison releases, spurring Texas lawmakers to rewrite sentencing laws to require prisoners to serve more time and paving the way for the state’s dramatic prison buildup at the turn of the century. 

“You hate to say, but you know something positive did happen as a result of Jim’s death,” Kahan told a host for the Houston station KPRC last year, months after Buntion was executed for the murder. “It spurred a movement. It put me on the road to doing what I’m still doing some 30 odd years later.”

The article was updated on Jan. 27 with additional comment from Kahan.

The post A Texas ‘Crime Stopper’ Targeting Reform Judges Could Gain More Power Over Them appeared first on Bolts.

She chose to push it to the right on Thursday by nominating Hector LaSalle, an appellate judge and former prosecutor who has amassed a conservative record, particularly on defendant rights and police oversight, to the New York Court of Appeals.

Hochul’s choice builds on the legacy of Andrew Cuomo, the former Democratic governor who at one point had appointed all seven court members, locking in a right-leaning majority that is now likely to live on. 

“Judge LaSalle has a sterling reputation as a consensus-builder, and I know he can unite the court in service of justice,” Hochul said in a statement. Hochul added that LaSalle, whose nomination is subject to a Senate confirmation, will also be the state’s first Latino chief judge. 

In the lead-up to Hochul’s decision, a coalition of progressive New York organizations released an assessment calling the prospect of LaSalle’s nomination “unacceptable” and zeroing in on his rulings on cases that dealt with abortion, criminal justice, and labor. Last week, a group of 46 law professors released a joint letter raising concerns about LaSalle due to what they described as his “activist conservative jurisprudence” and his “cavalier attitude towards reproductive rights, hostility to organized labor, and a worrying insensitivity to due process.”

“He’s put his judicial philosophy out there, on paper, and it strikes me he is to the right of the majority of New Yorkers,” Steve Zeidman, a professor at CUNY law school who signed onto that letter, told Bolts on Thursday.

“This is someone who is less concerned with individual civil liberties, and more concerned with siding with the government and corporations,” Zeidman added. 

Jocelyn Simonson, a professor at Brooklyn Law School, told Bolts on Thursday that she also signed the letter because she finds LaSalle’s record on issues including reproductive rights and criminal procedure to be “abysmal.” 

If he is confirmed by the state’s Democratic-run Senate, LaSalle would fill a vacancy left by Chief Judge Janet DiFiore, who abruptly resigned this summer. On the court, DiFiore was part of a bloc of four judges—all appointed by Cuomo—who have consistently banded together around rulings that strengthened the hands of law enforcement, management over labor, landlords, and prosecutors in a slew of cases, the publication New York Focus reported in June. 

DiFiore’s departure broke that bloc’s control over the court, but LaSalle’s record suggests he would reconstitute a conservative-leaning majority.

The main case highlighted by the law professors’ letter last week was a ruling, joined by LaSalle in 2017, that partially protected crisis pregnancy centers, which are run by anti-abortion groups, from an investigation into possible fraud by the New York attorney general’s office.

Another LaSalle ruling that has gained scrutiny came in a 2015 case that authorized the corporation Cablevision to sue union officials for defamation despite state laws that are meant to protect labor leaders. Communication Workers of America released a statement on Wednesday, before LaSalle’s nomination, denouncing his “anti-union stance that directly contradicts the rights of New York’s workers to organize.”

LaSalle has also drawn criticism from criminal justice reform advocates for regularly voting against defendants who brought lawsuits challenging their arrest or conviction. 

Simonson, who teaches criminal law, pointed to a 3-2 ruling in a 2014 case known as People v. Corbin, in which LaSalle sided with the majority in holding that a defendant had waived his right to challenge the constitutionality of a warrantless search when he pled guilty. “Judge LaSalle has demonstrated a troubling lack of concern for the rights of people charged with crimes, especially when it comes to the ability of courts to review unconstitutional police conduct,” she said.

LaSalle would be the fourth former prosecutor on the seven-member court. He is, in fact, the third consecutive appointment to the court who is a former prosecutor, after Cuomo-appointee Madeline Singas and Hochul-appointee Shirley Troutman.

The court currently has no member who has worked as a defense attorney.

“When you look at the federal level, it’s such a contrast with what’s happening in New York,” said Zeidman, the law professor who is himself a former public defender, pointing to President Biden’s nomination of civil rights attorneys and public defenders to the federal bench. That push has largely not been mirrored in state courts, even in blue states like New York.

“The need for that professional diversity, it’s evident in how the [New York] Court of Appeals has operated for the last several years,” Zeidman said. “When you look at criminal cases, much has been written about the fact that the court of appeals is hearing fewer and fewer criminal cases, and when they are, the majority seems to have a knee-jerk reaction of siding with the prosecutors no matter how egregious the issues raised by the defense.”

Eliza Orlins, a public defender and activist in New York City, said she is concerned about the broad powers the chief justice exercises over the court system.

“We’ve made marginal progress in New York in terms of criminal justice issues, when prior we were one of the worst states in the country on discovery, on prosecuting children as adults, on so many things,” she told Bolts on Thursday. “That can all be put in jeopardy.”

Hochul’s choice was constrained to a list of seven names selected by the state’s Commission on Judicial Nomination, a body made up in large part of appointees of Cuomo and DiFiore that created controversy for excluding some prominent liberal jurists and candidates of color. 

Still, the list presented a clear ideological choice for Hochul. Three of the jurists on the list, including LaSalle, had a record closer to that of the court’s current conservative bloc. Three others were endorsed by the progressive coalition, The Court NY Deserves, as the likeliest to counterbalance the right-leaning bloc.

LaSalle was one of three judges on that list to receive the highest qualification ratings from both the New York State Bar Association and New York State Trial Lawyers Association; the other two who did were among the jurists who were championed by progressives. LaSalle has also received strong support from Hispanic and Latino lawyers’ bar associations in New York.

After Hochul’s decision, several progressive groups in that coalition, such as the Working Families Party, quickly called on the state Senate to reject LaSalle. 

“The folks we were hoping ultimately would be considered and appointed were people whose backgrounds and histories showed they were committed to uplifting the lives of marginalized folks,” said Tolu Lawal, the co-lead organizer of Unlock The Bar. “Hochul is on notice and the Senate is also on notice that people are paying attention, and we will be watching the votes and making decisions afterward.” 

Several left-leaning New York senators announced they would oppose LaSalle on Thursday. 

“It’s indefensible to ask for Black votes and then work to incarcerate us,” Jabari Brisport, who represents Brooklyn tweeted on Thursday. “No on LaSalle.” 

Samra Brouk, who represents the Rochester area, denounced LaSalle’s judicial record as “anti-woman, anti-worker, and anti-family.” Others who voiced opposition include Michelle Hinchey, Kristen Gonzalez, Robert Jackson, and Julia Salazar. 

Other Democratic senators with a progressive reputation had more vague reactions to LaSalle’s nomination on Thursday. Brad Hoylman, the chair of the chamber’s Judiciary Committee, told New York Focus that he is undecided on LaSalle. Zellnor Myrie, who released a statement last month calling on the governor “to prioritize civil rights and defense experience when selecting our next top jurist,” also tweeted that he was undecided on Thursday.  

Nominations to state court typically don’t draw much attention or controversy. “Traditionally, the senate has been a rubber-stamp,” Zeidman said.

In 2021 progressives tried to organize against Cuomo’s choice to send Singas, who at the time was the district attorney of Nassau County, to the high court. But despite some recorded opposition in the senate, Singas was easily confirmed.

She went on to solidify what became the court’s conservative bloc. At least one powerful New York senator, Michael Gianaris, told Bolts and New York Focus in July that he regretted his support for Singas. On Thursday, his office pointed Bolts toward a statement he issued in September that called for “diverse legal experience.” Another New York senator who supported Singas’s nomination, Andrew Gounardes, said in July that he did not regret his vote because “no one could foresee just how important state government would be;” on Thursday, he released a statement on Thursday saying that he was “deeply concerned” by LaSalle’s record and that New York courts should be a “bulwark” against the conservative federal judiciary. 

Critics of LaSalle are intent on at least making the case this year that state institutions deserve a bright spotlight. 

“In light of the current composition of the Supreme Court and other federal courts, our state courts are more important than ever as interpreters of our laws and our rights,” Simonson said. Zeidman concurs. “I’m optimistic that there’s going to be an awful lot of attention to the confirmation process this go-around.”

Alex Burness contributed reporting.

The article was updated on Friday morning to reflect additional statements from New York senators.

The post Kathy Hochul Pushes New York’s Highest Court to the Right appeared first on Bolts.

On Monday, Janet DiFiore, the chief judge of the Court of Appeals, New York State’s highest court, announced that she will be resigning this August. The news stunned much of New York’s political establishment and offered Governor Kathy Hochul, who will nominate DiFiore’s replacement, the chance to reshape the Court of Appeals for years to come.

The court has taken a sharp turn to the right over the last year, New York Focus reported last week. DiFiore leads a group of four conservative judges who have voted as a bloc in 96 of the 98 cases in the seven-member court’s most recent term, giving it control over essentially all the court’s decisions.

In that time, this bloc has issued a slew of rulings favoring law enforcement, large corporations, and landlords over defendants, employees, consumers, and tenants. DiFiore and her three allies—Anthony Cannataro, Michael Garcia, and Madeline Singas—have also been responsible for a sharp drop in the court’s overall caseload, and particularly in the number of criminal appeals that the court hears, experts say. 

This conservative majority was expected to remain in control of the court until at least 2025, the year DiFiore would have had to leave the court due to turning 70, New York’s mandatory retirement age for judges. DiFiore offered no reason for her sudden resignation on Monday. But Law360 reported that she is currently the subject of an ethics investigation for interfering in the disciplinary process for a court officer who threatened to post flyers critical of her on court buildings.

If Hochul were to appoint a judge who is more progressive than DiFiore, it could flip the court’s ideological balance on key issues. 

“We’re clearly trying to avoid having our own version of the U.S. Supreme Court here in New York,” Deputy Majority Leader Michael Gianaris, the second-highest ranking Democrat in the state Senate, told Bolts and New York Focus. “Under DiFiore’s leadership, that’s where this Court was headed. So I’m glad she’s resigning.”

Hochul’s pick for DiFiore’s replacement will need to be confirmed by the Senate to join the bench. Democrats hold a supermajority in the chamber, and many cheered the news of DiFiore’s resignation. Prominent senators urged Hochul to nominate a liberal or progressive replacement, as did the State Assembly’s influential Speaker.

But Democrats are also largely responsible for the court’s current makeup. All four judges in its majority bloc are appointees of former Governor Andrew Cuomo. The then-GOP-run Senate acted unanimously in 2016 to approve DiFiore, who at the time was a Democratic district attorney. 

And just a year ago, Senate Democrats voted overwhelmingly to confirm Singas, another tough-on-crime prosecutor, despite a progressive effort to block her confirmation. Singas has since voted with DiFiore in every single case the two judges have ruled on. 

One prominent senator said on Monday that he regretted that vote.

“It was a mistake to support Madeline Singas’ confirmation,” said Gianaris, who last year rallied his colleagues to support her. “She has become part of a majority bloc on the Court of Appeals that is issuing decisions that move us in the wrong direction.”

Asked about DiFiore’s retirement, Lucian Chalfen, a spokesperson for the court system, sent Bolts and New York Focus a statement: “While many people in government hold on the end [sic], that is not the case here. Now it is simply time for the Chief Judge’s next challenge in her professional and personal life. It is illustrative in one’s being aware that it’s not knowing when the right time is to get on the merry go round, but knowing when the right time is to get off [sic].”

“Time for a new direction”

On Monday, numerous Democratic senators publicly called for Hochul to nominate a more liberal replacement for DiFiore, reflecting growing concern within the chamber over the court’s conservative direction as well as frustration with the court’s majority bloc for ruling that Democrat-drawn legislative maps were an unconstitutional partisan gerrymander.

“I think it’s time for a new direction on the court,” said Senator Brad Hoylman, the chair of the Senate Judiciary Committee. Hoylman called on Hochul to nominate a replacement “focused on equitable outcomes for New Yorkers.” Gianaris also said he hopes to see a nominee “more interested in and more appreciative of the struggles of everyday New Yorkers” than DiFiore.

Senator Alessandra Biaggi, a member of the Judiciary Committee, said in a statement that she “strongly urge[s]” Hochul to nominate a public defender. 

Four of the court’s current members are former prosecutors, while none have significant experience as defense lawyers. This reflects a common imbalance in state supreme courts around the country, Bolts reported in March, despite a major push in recent years to get governors to appoint more public defenders to the bench.

Multiple senators also said that the recent conservative rulings from the U.S. Supreme Court have amplified their concern over the Court of Appeals.

State Senator Andrew Gounardes, a member of the Judiciary Committee, said he hopes for a nominee who will “make New York a bulwark against the deterioration of rights” caused by recent Supreme Court rulings. Among other matters, the New York court could be called to clarify whether the state’s constitution enshrines abortion rights. 

Like Gianaris, Gounardes voted in favor of confirming Singas. Gounardes said that he has felt “disappointment with some of the decisions” issued by the majority bloc. But he said that he does not regret supporting Singas based on the information that was available at the time.

“No one foresaw what would be happening at the national level,” he said, referring to recent decisions from the Supreme Court. “No one could foresee just how important state government would be.”

At the time of her nomination last year, Singas was already known as a leading critic of the landmark 2019 criminal justice reforms that reshaped the state’s bail system and evidence rules. Reform advocates warned loudly then that her nomination could shrink the rights of criminal defendants. While their efforts were unsuccessful, they did focus public attention on the court’s increasing conservatism.

Lingering DiFiore influence?

When Hochul nominates a replacement for DiFiore, she will do so by picking a nominee from a shortlist of seven candidates prepared by the Commission on Judicial Nominations, a committee tasked with soliciting and reviewing applications for vacancies on the Court of Appeals.

DiFiore selected four of the commission’s 12 current members, and Cuomo, a close ally of DiFiore, selected another three. The term of one of the Cuomo appointees, Abraham Lackman, expired in March, but he still serves as a commissioner, according to the Commission’s website. A spokesperson for Hochul did not respond by press time to a question on whether she plans to replace Lackman before the Commission selects the shortlist for DiFiore’s replacement.

Eight votes are required to place a potential nominee on the shortlist—just one more than the number currently controlled by DiFiore’s and Cuomo’s appointees. 

“Even from beyond office, Cuomo and DiFiore will have a hand in shaping the composition of the Court of Appeals,” said Noah Rosenblum, professor at New York University Law School and a former clerk at the Court of Appeals. 

Once Hochul makes her pick from the shortlist, the nominee will go before the Senate for confirmation. The Senate has never rejected a nomination to the court, and confirmations have generally not been highly contentious—at least not until Singas’s last year.

Absent a nominee as polarizing as Singas, it’s not clear that the Senate is likely to mount significant opposition to whomever Hochul picks.

When Hochul was preparing to select her first nominee to the Court last fall, 10 Senators penned a letter calling on her to nominate a public defender to the open seat. When Hochul instead picked Shirley Troutman, then a lower court judge and previously a prosecutor, nine of those Senators still voted to confirm. (Troutman has since become the closest thing to a swing vote the court has, sometimes ruling in the majority along with the conservative bloc, and sometimes dissenting along with Jenny Rivera and Rowan Wilson, the court’s two consistent liberals.)

Gianaris declined to say whether the Senate might reject Hochul’s nominee if she nominates someone in the mold of DiFiore. “I’m more hopeful that Governor Hochul will herself appreciate the gravity of the moment and that won’t become necessary,” he said.

Steering the court

The court’s conservatism under DiFiore is out of step with its historic norm, according to Vincent Bonventre, professor at Albany Law School and an expert in the Court of Appeals. Under the three chief judges who preceded DiFiore, “the court was way out in front of most courts in the country in protecting rights and liberties,” he said.

Before Singas and Cannataro joined the court last year, DiFiore didn’t have a consistent ally other than Garcia, who is the court’s lone Republican (though he, too, was appointed by Cuomo). Singas and Cannataro replaced two judges who were known to be swing votes, and who sometimes sided with the court’s two liberal judges.

As the court has tacked to the right, it has also become less interested in explaining the reasoning behind its decisions. The court did not issue a formal opinion in the majority of last year’s cases, but instead published short “memorandums” that offer only brief explanations of the majority’s thinking.

“They are so incredibly superficial,” Bonventre said of the memorandums. “I think it doesn’t show much respect for the judges that are in dissent.”

A new chief judge will have enormous influence on the trajectory of the Court of Appeals and also on the broader practices of New York courts, since they will serve as the chief administrator of the entire system, and will have the ability to appoint administrators and set policy for hundreds of lower courts. 

“The chief judge, by and large, has been able to steer the court in the ideological direction that the chief judge prefers,” Bonventre said. 

The post New York’s Chief Judge Resigns, Breaking Up High Court’s Right-Leaning Majority appeared first on Bolts.

An unwritten rule that gives state senators virtual veto powers over gubernatorial nominees has stalled the confirmation for months or longer of top state officials nominated by Democratic Governor Phil Murphy.

Tahesha Way was renominated as secretary of state in January but lawmakers have not considered her nomination yet. There’s been no movement on acting Education Commissioner Angelica Allen-McMillan’s nomination since October 2020. Murphy’s choice for attorney general, Matt Platkin, appears headed for a similar fate.

And Rachel Wainer Apter, a former advocate with the ACLU who is Murphy’s pick for the New Jersey Supreme Court, has awaited a hearing for more than a year. And unlike non-judicial appointees, Wainer Apter cannot be seated unless her nomination goes before the full Senate. A supreme court decision against expanding the rights of defendants last month may have gone the other way had she been on the court.

Each of these nominations has run into an immovable roadblock: senatorial courtesy. The rule, which appears nowhere in New Jersey’s constitution, state law, or legislative rules, allows upper-chamber lawmakers to indefinitely block nominees from their home counties or who live in their districts. Senators don’t have to give a reason—and they often don’t.

“No governor likes senatorial courtesy, and every senator loves it,” then-Governor Chris Christie, a Republican, said in 2011.

In the cases of Way, Allen-McMillan, and Wainer Apter, two Republican senators have blocked the appointments despite Democrats’ majority in the chamber. A Democrat is behind the delay on Platkin’s nomination.

The practice is similar to one in the U.S. Senate, where court nominees can be blocked if either of their home state senators does not return what’s known as a “blue slip,” a piece of paper indicating the senator supports the nominee. Most recently, Republican Senator Ron Johnson of Wisconsin used the “blue slip” tradition to block the appointment of a federal judge in his state.

In Congress, the tradition has grown into a source of controversy. Republican leaders disregarded some absent slips by Democratic senators during the Trump administration, and now some Democrats who associate it with counter-majoritarian mechanisms like the filibuster that most of their party has come to oppose are demanding that it be done away with.

Those demands are largely not present in New Jersey. And despite national Democrats’ anger toward Republican refusal to move forward on former President Barack Obama’s nominee to the U.S. Supreme Court, Merrick Garland, there is no parallel firestorm in New Jersey over a Republican senator forcing a vacancy on the state Supreme Court.

New Jersey’s unwritten rule exists at the pleasure of the chairman of the Senate Judiciary Committee and, ultimately, the Senate president, both of whom are Democrats. Lawmakers could approve legislation or rules changes to bar the practice.

Nicholas Scutari, the chamber’s Democratic president and the former longtime chairman of the Senate Judiciary Committee, declined to comment through a spokesperson.

New Jersey governors have expressed mixed feelings about senatorial courtesy. Murphy has said he supports it. Christie didn’t nominate judges in Essex County as punishment for two of the county’s senators invoking senatorial courtesy for one of his nominees. Brendan Byrne in 2004 criticized its “abusive use.” And Tom Kean Sr. cautioned the practice empowers interest groups to stall the appointments of regulators and enables “government by corruption.”

Though officials and advocates occasionally rail against individual senators who have invoked courtesy to block a nomination, there is no formal campaign to do away with the practice.

Even groups like the New Jersey State Bar Association, which decades ago backed a constitutional amendment that would have required the Senate to vote on gubernatorial nominations within 90 days, have backed away from advocating against senatorial courtesy.

“For the most part, the system’s worked,” said Domenick Carmagnola, president of the State Bar Association. “I’m not a big believer, and the state bar’s not a big believer, in ‘let’s look at a major overhaul because of an exceptional circumstance if, for the most part, it’s worked.'”

He added any effort to do away with courtesy would likely fail to gain traction in the Legislature.

Courtesy is the greatest source of individual power for most of New Jersey’s senators. Legislators have—and continue to—use courtesy as a bargaining chip to win nominations for political allies, legislative concessions, or funds for pet projects. The late Senator Anthony Bucco used it in 2004 to force a meeting between himself and the state’s environmental protection commissioner.

Republican Senators Kristin Corrado, who represents Passaic County and has courtesy over the nominations of Allen-McMillan and Way, and Holly Schepis, who represents Bergen County has so far blocked Wainer Apter’s confirmation, did not return calls seeking comment.

Schepisi has previously said she was withholding courtesy to ensure New Jersey’s high court maintains its tradition of partisan balance.

The delay in confirming Wainer Apter has created a vacant seat on New Jersey’s high court, which now has just six members instead of its usual seven.

Chief Justice Stuart Rabner appointed Judge Jose Fuentes on a temporary basis in December to fill the seat that Murphy named Wainer Apter for. But after Justice Faustino Fernandez-Vina stepped down upon hitting the mandatory retirement age of 70 in February, Rabner said he will not make an interim appointment for Fernandez-Vina’s seat because the next judge in line for the appointment is a Democrat whose elevation would disturb the court’s partisan balance. (The Murphy administration is not naming someone to fill this new vacancy until Wainer Apter’s nomination is heard by the Senate.)

So far, the vacancy has only led to one Supreme Court ruling that might have gone a different way if the court had seven judges. In a 3-2 decision from March, justices reversed a lower court ruling that would have expanded Miranda rights for people accused of crimes. Two of the court’s three Democratic-appointed justices dissented, warning that the decision will “erode faith in our criminal justice system.”

If Wainer Apter had taken part in this case and sided with the two dissenters, the resulting tie would have left the lower court’s ruling in place.

In Platkin’s case, Democratic Senator Dick Codey has invoked courtesy. Codey declined to say why.

When asked about it last week, Codey said, “Next question.”

For officials who are appointed to executive positions like Way and Allen-McMillan, a delayed confirmation by the Senate changes little. Holding the position in an acting capacity puts no limits on their authority. But for people appointed to judgeships, state boards, and similar bodies, senatorial courtesy is consequential since they must be confirmed to take their posts.

Stalled nominees for New Jersey posts with lax residency requirements can also skirt the rule by moving to a different county or legislative district, though the sprawling nature of some legislative districts means some would have to move far. Corrado, for example, has courtesy over all of her home county of Passaic and 12 towns in Bergen, Morris, and Essex counties.

Before New Jersey adopted its 40-district legislative map in 1966, legislators only had courtesy over nominees from their home counties.

There are other ways for senators to delay or kill nominations.

The Senate president and the chair of the Senate Judiciary Committee—Democratic Senator Brian Stack is the panel’s current chairman—can withhold a committee hearing or floor vote.

Former Senate President Steve Sweeney kept the nomination of New Jersey State Police Superintendent Pat Callahan in limbo for more than two years with no invocation of courtesy (Callahan lives in Warren County, Sweeney in Gloucester). The Senate unanimously confirmed Callahan in December, after Sweeney lost re-election and shortly before Scutari replaced him as the Senate president.

Murphy, who stands to gain the most from the rule’s removal, isn’t pressing for courtesy reforms. A spokesperson for the governor declined to comment on the rule’s continued existence, deferring to comments the governor made last May.

“I have to say my bias, just being asked it for the first time, is it’s a rightful element of a balance of power, even where it may frustrate you one day or another,” Murphy said at the time. “At the end of the day, I think the notion of having the equal branches of government exercising their rights is, I think, a good thing.”

The post The Unwritten Senate Rule Blocking New Jersey Governor’s Nominees appeared first on Bolts.

Kemp’s win seemed only temporary since these appointees have to face voters in 2022 to keep their jobs. Yet this spring, as the delayed elections finally occur for both high court seats, LaGrua and McMillian will face zero opposition because nobody filed to run against them by the March 11 deadline. They are now guaranteed full six-year terms, on a court that has final say on issues ranging from election law to the death penalty. 

Barrow says the prospect of experiencing what he went through is chilling potential candidates’ interest in running. 

“Anybody who is thinking about running has to run the risk that they pull out the rug from under you,” he told Bolts. 

Andrew Fleischman, a criminal defense attorney in Atlanta, says he has also observed this fear. “People are reluctant to run because you can be ahead and still have your election canceled,” Fleischman told Bolts. “Imagine putting your families through that, taking time off, being on track to winning, and the governor can just stop you whenever he feels like it.”

Georgia law already provided a path for state officials to game the rules before 2020. When an appellate court judge resigned within the six months before an already scheduled election for their seat, the governor appointed someone to the seat and the election was postponed to the next cycle. The practice fits into a long nationwide tradition of incumbents tendering suspiciously timed resignations before an election to install a preferred successor and circumvent the will of voters.

But the dynamic dramatically escalated in 2020. Georgia Republicans established that judges do not even have to vacate their seats before their elections to get them canceled. 

Justice Keith Blackwell was set to face Barrow in June when he announced, in the run-up to that election, that he would resign in November—five months after voters were set to decide between Barrow and him, and just one month before his term was set to end anyway. (Had Blackwell not sought re-election and served out those final weeks instead of resigning, the June election would have proceeded normally, just without an incumbent.) Kemp and Secretary of State Brad Raffensperger then canceled the election as though there was a vacancy, and the state supreme court rejected Barrow’s lawsuit to force an election in a 6-2 ruling.

The pattern has repeated over the past few months. Chief Justice David Nahmias, who wrote the 2020 opinion authorizing this maneuver, and Fulton County Superior Court Chief Judge Christopher Brasher, were meant to be on the ballot in May. Both recently announced that they would retire later this year, after the scheduled election—once again postponing elections and allowing Kemp’s appointments to rule until 2024.

Critics fear the stage has been set for things to get worse. The dissent in the 2020 case warned that nothing in state law seems to prevent judges from rescinding their resignations after the date of a canceled election, leading to a perverse situation where a judge’s promise to vacate their seat could buy them extra years on the bench. The ruling also raised the possibility that, if a justice lost an election and then resigned in the lame-duck period between the election and the end of their term, the governor’s appointment could preempt the election’s result and install a different judge than the election’s winner.

Barrow calls this prospect “dysfunctional or dystopian.” Judicial candidates now must “gamble” that an election will happen, he says, and even if it does, and if they win, “there’s no guarantee.”

The latest in Georgia’s democracy crisis points to a larger pattern that belies the state’s supposedly democratic way of choosing judges. While state and local elections often go uncontested, Georgia’s high court judges are almost never challenged. As Bolts noted in early February, Georgia saw 12 consecutive supreme court elections that only drew one candidate between 2012 and 2018.

“If you don’t have an opponent, you have no incentive to talk about your position, talk about your ethics, and communicate what you do and don’t stand for,” says Alexandra Joseph, co-founder of Informed Georgians for Justice, an organization that closely follows how local officials affect the criminal legal system. “Judges in Georgia, but also nationwide, have stepped away from the public square aspect of elections.”

Verda Colvin is the only state supreme court justice up for re-election this year who faces an opponent. Colvin, who was also appointed by Kemp in 2021, will face Veronica Brinson, a Macon lawyer, in May.

Judicial elections are nonpartisan in Georgia, though in many states that does not stop parties from organizing around them, and Democratic wins in 2020 and 2021 seemed to herald a new era of political competition in Georgia. The state Democratic Party did not respond to a request for comment on whether it tries to recruit candidates for judicial office.

Georgia’s supreme court rarely grabs national headlines like its hyper-divided counterparts in states like North Carolina and Wisconsin, but it regularly issues decisions that greatly affect public policy in the state. 

Last year, the court upheld an exceptionally high threshold that death penalty attorneys say makes it all but impossible to stop the execution of people with intellectual disabilities. In another case last week, the court made it harder for defendants to recover if their attorney messes up and misses a deadline to file a petition. They will now have to go through the more burdensome habeas process, during which they are entitled to less legal assistance. “If your lawyer misses a deadline by a day, you’ve basically lost the right to an appointed counsel for your appeal through no fault of your own,” said Fleischman, warning of “massive negative effects.” 

“You can see the wings of the court playing out if you read that opinion,” Fleischman added. Justices Nels Peterson, John Ellington, and Charlie Bethel dissented in that case, and they have a record that is more amenable to defendants’ rights in criminal cases. Bethel was the only justice who dissented in the earlier death penalty case.

Peterson and Bethel are appointees of former Governor Nathan Deal. In both the 2021 death penalty case and last week’s habeas case, all of Kemp’s appointees were in the majority. While Deal and Kemp are both Republicans, their administrations are markedly different on criminal justice. Deal championed criminal justice reforms meant to lower incarceration, while Kemp has pushed for tougher laws and for weakening public defenders. 

Georgia’s court system also suffered a considerable loss of oversight in 2016 when a former judge who had moved to the legislature mounted a successful campaign to gut the state’s independent agency that monitored judges. The lawmaker had himself been investigated by the state’s independent agency while he was on the bench. Judges have since been far more free to act as they please without feeling consequence. 

“If we don’t have a judicial watchdog organization, then ALL we have are elections,” said Joseph. She is concerned that the lack of contested elections is compounding that lack of oversight and the insular nature of the profession. She believes a more robust democratic debate would enable more diverse voices to be heard and possibly elevated to the bench, including public defenders, who are currently absent from the state supreme court, but that as it stands it’s the same voices that prevail.

“These elections are viewed as not contestable, like it’s almost rude to run. It’s just not done. It’s not proper. And I think that that misconception is stifling what the court actually could be,” Joseph said. “Lawyers as a profession is the ultimate old boys’ club.”

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