Number, gender of court appointments Heineman judicial legacy

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November 19th, 2014

Lincoln, NE – By having the opportunity to appoint more judges than any other chief executive in the state’s history, Heineman’s selections will influence the judicial system for years to come.

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In addition, his choices significantly increased the number of women running courtrooms across the state. Since 2005, Heineman added 20 female judges to county, district and appellate courts in the state for a total of 32 in active service. The state had no women on the bench until 1971.

“If you consider that is when it began in Nebraska, we’ve made great strides in a little over 40 years,” said Judge Frankie Moore, the lead judge in the Nebraska Court of Appeals.

Recently Moore presided over a session of the Nebraska Court of Appeals convened at the University of Nebraska at Kearney featuring the first three-woman panel in the court’s history. Moore called it “a special day.”

Three member Court of Appeals convenes at UNK. (Photo Courtesy Judicial Branch)

Three member Court of Appeals convenes at UNK. (Photo Courtesy Judicial Branch)

In all, Heineman selected 67 judges during his 10 year term. In the 1990s, then Gov. Ben Nelson selected the second highest number with 40 judge appointments.

Changes in the state’s constitution in 1962 and 1974 gave responsibility for selection of judge candidates in Nebraska to a non-partisan selection committee. The final choice rests with the governor. Since voters rarely use elections to remove a judge from office, the picks a governor makes can influence the legal system for years to come.

“It makes a difference,” Creighton University law professor Patrick Borchers said. “It may not make national news, but it certainly is important.”

Borchers, who has consulted for Republican office holders, notes few of Heineman’s appointments have been especially controversial.

“The judges I have seen appointed, looking at their qualifications, make perfect sense to me,” Borchers said. “I can certainly understand why the governor went the direction he did.” He added that was the case with previous Nebraska governors as well.

Heineman’s most influential selection was the Nebraska Supreme Court’s Chief Justice Mike Heavican. The chief justice also leads the entire judicial branch, which includes supervision of state and county courts, the probation system, and services like child support enforcement.

With the selection of Justice William B. Cassel, the Republican governor added two justices to the five selected by Democratic Gov. Ben Nelson.

“It’s not a particularly political court,” Borchers said. “You see a lot of unanimous decisions. I think you see a lot of perfectly reasonable decisions.”

The court’s rulings indicate the state Supreme Court routinely upholds sentences and convictions handed down in district and county courts. There are occasional challenges to police investigation methods. Shortly after Heavican took the oath as chief justice the court ruled Nebraska’s use of the electric chair was unconstitutional. Heavican wrote a lonely but sharply-worded dissent to the majority vote ending the use of electrocution.

Overall Borchers sees the Heavican court as one not inclined to make big challenges to state laws created by elected officials.

“They seem to have gravitated towards people who are accomplished lawyers and have a moderated view of what the authority of judges ought to be,” Borchers said.

Some of the judges Heineman appointed have demonstrated their independence on the bench by issuing rulings seemingly out of step with the governor’s philosophy. Most notably a Heineman appointee, Lancaster District Court Judge Stephanie Stacy, rejected the governor’s argument that he had the right to determine the route of the Keystone XL Pipeline.

“If it were Judge Heineman rather than Gov. Heineman, I suspect the ruling would not have come out that way,” Borchers said.

Stacy’s ruling supported the position of a group of landowners maintaining the governor illegally took over responsibility for selecting the pipeline’s route from the elected regulators on the state’s Public Service Commission. The Nebraska Supreme Court has the governor’s appeal under consideration.

The modest surge in the number of female judges may prove to be a significant legacy for Heineman. Earlier this month the three female judges serving on the Court of Appeals were seated together on a panel for the first time. Chief Judge Moore called it a “very special” day in the history of the court.

Moore, along with judges Francie Riedmann and Riko Bishop, make up half of the six-member Court of Appeals, established in 1990.

Susan Poser, dean of the University of Nebraska College of Law, said she is “very heartened” by the number of women serving on the Court of Appeals. “It gives me some hope that the next few appointments will be women to the (Nebraska) Supreme Court,” Poser said. She is disappointed only one woman, Justice Lindsey Miller-Lerman appointed in 1992, serves on the seven-member Supreme Court. Poser said “there seems to be some kind of glass ceiling” as far as getting women on the high court. Heineman selected two male justices since he took office in 2005.

The increasing number of women on the bench coincides with a drop in the number of women applying for law school in Nebraska and nationally. At its peak, women comprised just over half of the law school graduating classes in Nebraska. In 2013, according to figures compiled by the American Bar Association, 44 percent of students enrolled at the University of Nebraska College of Law were female. At the Creighton University Law College in Omaha, women made up only 36 percent of the class.

The percentage of African-Americans, Hispanics and Asian Americans in the state’s law schools remains in single digits. That continues to limit the pool of applicants to take on the job of judge in Nebraska. Only one African-American currently serves as a judge in Nebraska.

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