Judicial Selection That Fails the Separation of Powers

Authors

Stephen Ware, University of KansasFollow

Abstract

Executive power should be constrained by checks and balances. The United States’ long and strong tradition of concerns about executive power, and its complementary tradition of Madisonian checks and balances on and to the executive, include the selection of supreme court justices. Neither the U.S. Constitution nor the constitution of any state places solely in the executive the power to appoint a justice to begin a new term on the (federal or state) supreme court. However, several states fail to constrain gubernatorial power in selecting justices to finish a term already started by another justice and these interim appointments are the norm in several such states. This Article argues that states with interim supreme court appointments should subject the governor’s appointment power to a nominating commission or a confirmation vote. And this Article argues that the urgency of adopting such a constraint on the governor is highest in states—Minnesota, Georgia, and Oregon—in which the supreme court acquires most of its new members through interim appointment, and in which an interim appointment nearly always leads to a safe multi-term position on the supreme court. Supreme court appointments are simply too important to leave to the unchecked discretion of a single person.

Recommended Citation

Stephen Ware, Judicial Selection That Fails the Separation of Powers, 72 Cath. U. L. Rev. 299 (2023).
Available at: https://scholarship.law.edu/lawreview/vol72/iss3/6