Supreme Weekly: Freshman governors and their 2011 Supreme Court appointments

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December 8, 2011

by: Katy Farrell

Twenty-six governors were newly elected in 2010, taking office at the beginning of this year. However, only nine of them had the opportunity to appoint a justice to the high court. In today's Supreme Weekly, we will look back at what made those appointments interesting.

Alabama

At the beginning of August, Governor Robert Bentley appointed his Chief of Staff, Charles Malone, as Chief Justice of the Alabama Supreme Court. Malone succeeded Sue Bell Cobb, the only Democrat on the court, to make the nine-member court fully Republican.

Otherwise, the governor has been very active with judicial appointments in his first year. To see the rest of the list, visit: Judges appointed by Robert Bentley.

California

Calling this year Governor Jerry Brown's first year in office is a bit of a misnomer. Brown is technically serving his third term as governor, though the second one ended in 1983.

Since taking office this year, sorting out California's budget deficit has been the major priority for the governor. Because of this, he has only made one judicial appointment, instead choosing to let other vacancies remain open as a cost-saving measure. His one appointment was an interesting one, however.

Goodwin Liu was appointed to the California Supreme Court on July 26. He succeeded Justice Carlos Moreno, who retired from the court in February. Selecting Liu for California's high court was an interesting maneuver because of his drawn-out confirmation proceedings for the United States Court of Appeals for the Ninth Circuit. President Barack Obama nominated Liu to the court originally in early 2010. In the face of opposition by the Republican members of the U.S. Senate, Liu's nomination was returned to the president twice (and resubmitted twice) before eventually being withdrawn by the nominee this March.

The contrast of the federal model for confirmations of judicial nominees and the California system would have been humorous, if it wasn't such a serious issue. After Liu's July nomination, he was swiftly confirmed by the California Commission on Judicial Appointments and sworn-in to the court on September 1st.

Colorado

One of the most recent state Supreme Court appointments was that of Brian Boatright. He was Governor John Hickenlooper's first appointment to the Colorado Supreme Court. Before joining the high court, Boatright was a judge on the Colorado 1st Judicial District.

To see more of Gov. Hickenlooper's judicial appointments during his first year in office, visit: Judges appointed by John Hickenlooper.

Connecticut

Lubbie Harper was appointed to the Connecticut Supreme Court on March 16 by Governor Dan Malloy. Harper was appointed after serving on Connecticut courts since 1997. Though he was definitely qualified to serve on the court, Harper was still an interesting choice for appointment because of his age. He will only be permitted to serve on the court for less than two years, due to the mandatory retirement age of 70.

In announcing the appointment, Governor Malloy alluded to this fact and also circumvented it be saying, "This judge based on his distinguished career, deserves to be on the Supreme court - based on his life story, deserves to be on the Supreme Court."

However, because of Justice Harper's age, Malloy has assured himself another appointment to the court. To see the other judges appointed during the governor's first year in office, visit: Judges appointed by Dan Malloy.

Hawaii

The appointments of Governor Neil Abercrombie have been the most controversial this year, though not because of the quality of the candidates. The governor appointed Sabrina S. McKenna to the Hawaii Supreme Court in January. The newspaper The Honolulu-Star Advertiser asked Abercrombie's office to release the names of the judicial candidates not selected for the position following the appointment of McKenna. The office refused, referencing a 1993 Hawaii Supreme Court ruling that the governor had sole discretion over whether to release the names.

In November, the O`ahu First Circuit Court decided that the public's right to know exceeded Abercrombie's argument that releasing the names would deter future applicants. After the ruling was announced, the governor released the names, keeping with the practice of former Governor Linda Lingle.

To see the other judges appointed to Hawaii's courts in 2011, check out: Judges appointed by Neil Abercrombie.

Iowa

So, if the appointment of Goodwin Liu was one of the year's most interesting, and the appointments of Governor Abercrombie were the most controversial, then those of Governor Terry Branstad can be considered the most anticipated. Branstad was elected in 2010, during the same election where three members of the Iowa Supreme Court were not retained. This unprecedented action by the voters in the state set off a wave of proposed changes to judicial selection across the nation. The justices were not retained based on their participation the decision Varnum v. Brien, which in effect legalized same-sex marriage in the state.

Governor Branstad appointed Edward Mansfield, Thomas Waterman, and Bruce B. Zager to succeed Marsha Ternus, David Baker and Michael Streit. The three new justices will face retention votes in 2012.

For more of Gov. Branstad's judicial appointments, visit: Judges appointed by Terry Branstad.

Michigan

Governor Rick Snyder created his own opportunity to appoint a justice to the Michigan Supreme Court when he selected Justice Maura Corrigan as the head of the Department of Human Services in the state. The Michigan court, widely considered to be one of the most partisan and contentious in the nation, maintained its conservative edge with the January appointment of Brian Zahra. Both Corrigan and Zahra shared a similar philosophy, that of "judicial restraint".

Since joining the court, Zahra has been actively sharing his judicial philosophy. To read coverage of his appearance at a Tea Party event, read: Saginaw News, "A line in the sand: Michigan Supreme Court Justice defines 'activist' judges from 'rule of law' judges in appearance before Tea Party," June 17, 2011.

Visit Judges appointed by Rick Snyder to see his other judicial appointments.

South Dakota

This August, Governor Dennis Daugaard appointed Lori Wilbur to the South Dakota Supreme Court. Wilbur was the Presiding Judge of the Sixth Judicial Circuit before joining the court. Wilbur succeed Judith Meierhenry, the first woman to serve on the high court in the state.

To see Gov. Daugaard's other judicial appointments, visit: Judges appointed by Dennis Daugaard.

Vermont

The most recent addition to a state Supreme Court this year is Beth Robinson. Robinson was appointed to the Vermont Supreme Court by Governor Peter Shumlin in October. The new justice is the first openly-gay member to serve on the court and, as an attorney, argued the case Baker v. Vermont. That case mandated that the Vermont State Legislature to legalize same-sex marriage or propose a legal equivalent.

Between arguing that case and joining the court, Robinson served as Chief Legal Adviser for Governor Shumlin. To date, this is the only appointment the governor has made to any state courts.

Comparisons

Of the eleven justices appointed to the state Supreme Courts in 2011...

Elections

• five will face elections in 2012;

• three will face elections in 2014; and

• three are in states without popular elections: Connecticut, Hawaii and Vermont.

Career before joining court

• seven were judges on other courts;

• one was an attorney in private practice;

• two worked in the office of the governor who appointed them; and

• one was a law professor.

Appointing governor's party

• five judges were appointed by Democrats; while

• six were appointed by Republicans.

See also

• Supreme Weekly: Election fever - Races in Michigan, North Carolina, Ohio and Texas
• Judgepedia's Supreme Weekly: The States