Ricketts' judges could rival impact of Nelson's

Only three new members had to be fitted for robes between 1999 and 2015.

Mike Johanns appointed no Supreme Court judges during his six years as governor. Then Gov. Dave Heineman placed only two judges during his record-setting, decadelong run as the state's top executive.

But Nebraska's highest judicial bench now finds itself in the midst of change.

Sometime early next year, Gov. Pete Ricketts will appoint his second Supreme Court judge. And given the fact that four members of the court are age 68 or older, the Republican governor stands a chance of filling a majority of the seven seats — especially if he seeks and wins a second term.

Nebraska sets no mandatory retirement age for judges and none of the veteran members of the court were willing to discuss their retirement plans for this story. Nonetheless, Ricketts is well-positioned to have the most significant impact on the Supreme Court of any governor since Ben Nelson, the last Democrat to hold the office.

"It's really quite a legacy," said Michael Fenner, law professor at Creighton University. "Really, for the next 30 years, that person you put on the Supreme Court will be making decisions about what's constitutional and what isn't, deciding First Amendment rights, due process, the right to keep and bear arms, what criminal convictions stand."

The likelihood of additional high court turnover also raises questions about whether Ricketts will try to reshape the court to more closely mirror his conservative politics. Historically, the political affiliations of the Supreme Court appointees have matched the party of the governor making the appointment.

But those who are hopeful, or fretting, over a seismic political shift in the court should relax, said several longtime legal observers in Nebraska.

Efforts to "stack the court" with political ideologues would prove difficult for Ricketts or any governor. Primarily that's because a judicial nominating commission screens the applicants before sending the governor a list of finalists.

In addition, predicting judicial temperament isn't as simple as checking a candidate's political affiliation. More than a few presidents have been disappointed when their appointees to the U.S. Supreme Court have written major opinions out of left or right field.

"The job makes the person, it's not the person who makes the job," said Norman Krivosha, who served as chief justice of the Nebraska Supreme Court from 1978 to 1987.

Earlier this year Ricketts appointed former Lancaster County District Judge Stephanie Stacy to replace retiring Supreme Court Judge Kenneth Stephan, who served 18 years on the court. Soon the governor will choose a replacement for Judge Michael McCormack, another 18-year veteran, whose district includes parts of Douglas and Sarpy Counties.

Applicants have until 4 p.m. Wednesday to submit their names for a position that pays $166,000 a year.

The governor said in an interview that he doesn't "want the process to become politicized." Also, rather than a litmus test on hot-button issues, Ricketts said he is more interested in discerning the judicial philosophies of candidates and their attitudes toward public service.

First, the governor said he wants no activists on the court. Judges should interpret the plain meaning of the law, respect precedent and recognize the separation of powers among the executive, legislative and judicial branches.

If judges find a law unconstitutional, they should leave the job of rewriting the statute to lawmakers rather than do it themselves, the governor said. As an example of an activist decision, he mentioned Roe v. ade, the U.S. Supreme Court's 1973 landmark ruling on abortion.

"I'm looking for judges who understand the role of the judiciary in applying the law, not trying to create the law," he added.

The governor also said he wants his judicial appointees to possess high integrity and a genuine appreciation for public service. Judges who come off as rude, arrogant or condescending can damage the public perception of the judicial system, he said.

"It's important that our judges treat everybody in the courtroom with the highest level of dignity and respect," he said. "Even if people don't get the outcome they were hoping for, it really helps send the message that our system of justice works."

Several people have given Ricketts high marks for his first appointment.

Stacy, a private practice lawyer who was put on the Lancaster County District Court bench by Heineman, ran her courtroom in the friendly and accessible fashion Ricketts said he values. She also struck a modest chord when she appeared before the nominating commission, saying that while she wanted to join the high court, she also loved her job as a district judge.

But she made a decision as a district judge that some thought would have torpedoed her chances for the promotion. In early 2014 she struck down the state law that gave governors the ability to decide routes for major oil pipelines — a decision that led to delays in the government's review of the proposed Keystone XL pipeline. Ricketts is a strong supporter of the pipeline, which has since been denied a federal permit to allow its construction.

Retired lawyer and history professor James Hewitt of Lincoln said it was significant that Ricketts named Stacy to the Supreme Court despite the pipeline ruling.

"I thought it was a brave and courageous act on his part," said Hewitt, who in 2007 published "Slipping Backward: A History of the Nebraska Supreme Court."

With Stacy's appointment, the court has three Republicans, three Democrats and one nonpartisan.

State Sen. Ernie Chambers of Omaha, who holds a law degree, has been a vocal critic of many of Ricketts' policies and actions during the governor's first year in office. But the senator said he's not worried about the prospect of a Ricketts court. The institution seems to have always had a way of pushing aside politics in favor of impartiality and fidelity to the law, Chambers added.

Most new judges quickly realize they have assumed a role that is bigger than themselves and unlike any other in the legal profession, Chambers said.

"A sense of independence and responsibility will drape itself over that person just like the robe that they wear when they sit on the bench," he said.

Certainly, politics appears muted in the Nebraska Supreme Court as compared with the U.S. Supreme Court, which often seems to issue controversial decisions along sharply partisan divides.

Dissenting opinions occur in the Nebraska court, but when they do, they usually involve one or two judges. Four-three splits are notable because they occur so rarely.

In part that's because of differences in the way the two courts operate, said Anthony Schutz, associate professor at the University of Nebraska College of Law. The U.S. Supreme Court receives about 10,000 petitions annually but hears only about 80. And many of those cases involve some of the most polarizing issues of the time — gay marriage, the Affordable Care Act and affirmative action.

The Nebraska court hears closer to 200 cases annually, and many involve routine disputes over contracts, wills, leases, insurance coverage, child custody and employment.

With the exception of the recent pipeline appeal, death penalty cases appear to generate the most intense public interest in the Nebraska court.

"In the run of cases the Nebraska Supreme Court gets, there aren't that many that involve questions that are decided on politically ideological grounds," Schutz said. "Individual rights cases are more likely to raise cries of activism."

Hewitt, who wrote the book on the court, and Fenner, the Creighton professor, read lots of Supreme Court opinions. Each said he would be hard pressed to predict how any Nebraska judge would rule on a given case.

"For one thing, they're real lawyers," Fenner said. "They don't think of themselves as philosopher kings. They're open-minded. When you appear in front of them as a lawyer, you feel like you have a chance."

NU law professor Richard F. Duncan tackled the question of judicial activism in the State Supreme Court in a paper published in 2009. He reviewed decisions made by the court during the late 1990s to the late 2000s.

Duncan, a self-described libertarian conservative, said that although nearly all of the judges were appointed by Nelson, they conducted themselves more like umpires than judicial activists. The only decision he labeled as activist was the 2008 opinion in State v. Mata, which struck down Nebraska's use of the electric chair.

Chief Justice Mike Heavican, the only Republican appointee at the time, was the lone dissenting judge.

Nebraska has built-in mechanisms intended to blunt the influence of politics on the judiciary. The merit system the state has used since 1962 for appointing Supreme Court judges requires candidates to undergo screening by a nine-member nominating commission. Political affiliation must be balanced on the commission, and members must forward at least three finalists to the governor.

For the U.S. Supreme Court, the president makes the nomination, and that person then appears before the Senate Judiciary Committee. If the nomination makes it out of the committee, approval is by a simple majority vote of the full Senate.

In Nebraska, Supreme Court judges also face retention votes no sooner than three years after their appointment, and then every six years thereafter.

Justices on the U.S. Supreme Court have lifetime tenure, whereas in some states the judges campaign like politicians for election to the bench.

The merit system generally seems to have the intended effect, said Kim Robak, an attorney who served as lieutenant governor in the Nelson administration.

"There is a natural buffer that I think prevents our court from becoming too political, or at least not more political than the mainstream," she said.

No one knows more about appointing judges to the Nebraska court than Nelson, the former U.S. senator who served two terms as governor, starting in 1991. Nelson appointed eight judges to the high court, which is more than any governor in the state's history.

The criteria Nelson said he used in making selections sounded quite similar to the current governor's.

"A judge is not in a position to be the law, only to apply the law," Nelson said, adding that he has been pleased with the performances of the judges he selected, three of whom remain on the court.

As Nelson thought back on the appointment process, he said he could not recall feeling political pressure to select one name over another.

When asked what advice he'd give to Ricketts, he didn't hesitate.

"Put aside partisan politics. Don't have a litmus test. Seek people with integrity and honesty and a trusted track record who will apply the law."

Contact the writer: 402-473-9587, joe.duggan@owh.com