Nebraska Bar Association Blames GOP for Shrinking Judicial Pool

by John Gage

(Picture courtesy of the Office of Governor Jim Pillen)

The Nebraska State Bar Association (NSBA) released a report stating that Nebraska had seen a decline in the number of lawyers applying to be judges and blamed Republican politics for the decline. The report, done in partnership with the Nebraska Judicial Branch, was a result of a survey done of NSBA members.

“Over the past 10 years Nebraska has seen a continual decline in the number of lawyers applying for state appellate and trial court Judicial vacancies,” stated Judge John M. Gerrard, who wrote the report titled “The Shrinking Judicial Applicant Pool.”

Gerrard, whose report was presented Friday to the Judicial Resources Commission, added that “this trend raises important questions about the factors influencing lawyers’ decisions to apply—or not apply—for these vital positions.”

Gerrard, who is a senior United States district judge in Nebraska appointed in 2011 by then-President Barack Obama, blamed the Republican Party and Governor Jim Pillen for the shrinking pool.

“There is a widely held perception that candidates who do not share the Governor’s political party are unlikely to be appointed as judges in Nebraska,” he said. “Many respondents indicated that this belief is a significant deterrent to applying.”

In a section of the survey, respondents were asked for several “deterring factors for those who have not previously considered applying.” Results show less than 11% of respondents put “positive impact” when asked, “whether my political party was the same as the Governor’s.” In contrast, nearly 60% of respondents put “negative impact.”

When asked about “the level of political involvement in the application process,” less than 3% of respondents put “positive impact,” while nearly 80% put “negative impact.”

Nebraska has a “merit selection” system that is used to pick judges where a judicial nominating committee recommends candidates which the governor picks from. The committees are composed of nine members – four of which are lawyers picked by the NSBA and four of which are nonlawyers picked by the governor and the ninth member, who chairs the commission, is a member of the Nebraska Supreme Court.

State law dictates that the nominating commissions be politically diverse with neither of the groups of four having more than two members be from the same political party. Additionally, all Nebraska judges are subjected to retention votes every six years and are not allowed to campaign for office.

The Nebraska Judicial website touts that the system “allows lawyers to apply for judgeships based on the merit of their work” and “is the most effective way to ensure that Nebraska has fair and impartial courts.”

In the NSBA report, Gerrard complained that the nominating committees were not forwarding onto the governor, candidates that the bar believed were qualified.

“When lawyers who are perceived as being qualified by the practicing bar are not forwarded to the Governor by the Judicial Nominating Commission, it erodes trust in the process and discourages other candidates from applying,” he said. “Respondents noted variability in how commissions interpret their role — whether to advance all qualified candidates, or only those deemed the highest quality.”

The report suggested that “more objective criteria” could improve candidates confidence in the process.

The Plains Sentinel has reached out to Governor Pillen’s office for comment on the story.

John Gage is the executive editor of The Plains Sentinel.

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