Heineman building far-reaching judicial legacy

2013-08-11T04:00:00Z Heineman building far-reaching judicial legacyBy KEVIN O'HANLON / Lincoln Journal Star JournalStar.com

Already Nebraska's longest-serving chief executive, Republican Gov. Dave Heineman is building a legacy that will affect the state's court system for years after he leaves the governor's mansion.

When Heineman leaves office in about 17 months, there is a good chance he will have appointed about half of the state's judges, from Supreme Court Chief Justice Mike Heavican on down the line. He already has appointed 60 of Nebraska's 145 judges, including nine this year, with another appointment pending.

"That's something that lasts beyond your term as governor," Heineman said. "No doubt about it."

Heineman will have the benefit of serving two years longer than any of his predecessors, which likely will give him ample opportunity to appoint more judges.

The Nebraska Constitution limits governors from being elected to more than two consecutive four-year terms. But Heineman was lieutenant governor and ascended to the top job when then-Gov. Mike Johanns became U.S. secretary of agriculture in January 2005. That meant Heineman had about two years in office before he ran for election the first time. He was re-elected in 2010, meaning he will have served 10 years as governor when he leaves office.

Recently retired Democratic Sen. Ben Nelson, who left the governor's office in 2000 after two terms, became the first governor in Nebraska to name every member of the Supreme Court. Two of his seven appointees no longer are on the bench. Chief Justice John Hendry resigned abruptly in 2006. Judge John Gerrard became a federal district court judge last year.

That allowed Heineman to appoint Heavican and William Cassel to the high court.

But judges Lindsey Miller-Lerman, Kenneth Stephan, John Wright, Michael McCormack and William Connolly are still on the job — in addition to 41 lower-court judges appointed by Nelson.

"I considered it a legacy," Nelson said.

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Both Heineman and Nelson said political affiliation did not play a role in their appointments.

"It doesn't really enter into it at all," Heineman said. "Most of the time, I don't even know what their registration is, because it doesn't come to me on any documents."

But of the 60 judges Heineman has appointed, 56 are registered Republicans, two are registered independents, one is a Democrat and one is not registered to vote, according to records examined by the Journal Star.

"I don't ask them what their party is. I'm more interested in their philosophy," he said. "I'm looking for a common-sense Nebraska conservative who recognizes that the Legislature and the governor set the law, and the judicial branch is there to interpret it. They're not there to make law."

Nelson agreed.

"It's not about that. It's about the law. I was a stickler about that," Nelson said. "If I thought somebody was going to become a judicial activist, I wouldn't appoint them."

Lincoln trial lawyer Vince Powers, chairman of the state Democratic Party, said "lawyers understand that if the governor is not of the same party, it is usually a waste of time to apply since a governor almost always picks a lawyer from the same political party."

University of Nebraska law Professor John Lenich said it would be "extremely unlikely that Gov. Heineman is going to appoint a Democrat to the bench where there are, in his view, qualified Republican applicants."

But he said there is a marked difference between appointing someone who is aligned with your political views and appointing "political hacks."

Lenich said Nebraska's governors seem to give credence to nominees' credentials and recommendations.

"You don't see ... the overt politicization of the judiciary in the state of Nebraska," he said. "I think that's a good thing. I'd find it hard to point to anybody and say the only reason they are there is because they gave money or they knew somebody."

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Nebraska began using the so-called "Missouri Plan" to pick judges in 1962, when it eliminated their direct election. Twelve other states use the plan.

Potential judges in Nebraska are screened by a Judicial Nominating Commission made up of laymen and lawyers, which forwards names to the governor.

Once appointed, Nebraska judges face retention votes every six years, though Supreme Court judges face a retention vote three years after being appointed and every six years after that. They do not campaign. Voters simply are asked whether they should remain on the bench.

While Nebraska's judges are appointed, some states let voters decide who sits on the bench.

Critics say elected judges are beholden to campaign contributors — most disturbingly the lawyers who appear before them. In Texas, for example, Supreme Court Justice Don Willett raised about $2 million for his successful 2012 re-election campaign. Nearly half of that — about $880,000 — was given by lawyers and lobbyists, according to the American Judicature Society.

Powers said the Missouri Plan takes most — but not all — of the politics out of the judiciary.

"It eliminates the campaigning," he said. "The people who get their name passed along are qualified. It's a good system. I can't think of a better one.

And while it is widely held that governors try to appoint judges whose politics and ideals are in line with their own, most experts say judges tend to be freethinkers. And of course, there is no guarantee that a judge will remain politically loyal to the politician who appoints them.

"I doubt that when President Reagan appointed (U.S. Supreme Court) Justice Kennedy that he would have correctly predicted Justice Kennedy's votes on some very high-profile issues," said Patrick Borchers, former dean of Creighton University's law school and now director of Creighton's Werner Institute. "Although perceived ideology gets a lot of attention, in many cases, votes don't break along those lines."

When President Dwight Eisenhower appointed Republican California Gov. Earl Warren as chief justice to the U.S. Supreme Court in 1953, he said he was looking for a conservative judge and that Warren "represents the kind of political, economic and social thinking that I believe we need on the Supreme Court."

As it turned out, the Warren-led liberal majority wielded its judicial power in dramatic fashion, which reportedly prompted Eisenhower to quip that the chief justice appointment was the "biggest damn fool mistake" he ever made.

Reach Kevin O'Hanlon at 402-473-2682 or kohanlon@journalstar.com.

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