Gov. Janet Mills could appoint all seven justices on the Maine Supreme Judicial Court if she’s reelected in November, making her most likely the first governor to do so since Maine became a state.
The first-term governor has already appointed four of the justices, with her most recent appointment, Rick Lawrence, being sworn in last week. With the retirement next month of Associate Justice Thomas Humphrey, the last original appointee of former Gov. Paul LePage still on the court, Mills will be able to name a fifth judge before the November election.
After Humphrey, Mills could name replacements for associate justices Joseph Jabar and Andrew Mead during a second term if they decide to retire. Jabar’s term is up in 2023. Mills reappointed Mead last year.
The prospect of a governor making the initial appointments of all seven high court justices highlights a period of more turnover than usual on the high court, as well as in the broader legal profession, as baby boomers retire. It also highlights a chance for Mills to push the court in a more progressive direction, as some have urged her to do with the U.S. Supreme Court dominated by a decisively conservative 6-3 majority.
But court watchers in Maine aren’t concerned that the governor would pack the court with liberal judges who politicize the institution, as governors of all parties have stuck to the same selection process for nominees. Plus, about 40 percent of the cases the Supreme Judicial Court takes up are family matters that don’t address major political questions.
So far, all of Mills’ judicial appointees have received unanimous support from Republicans and Democrats on the Legislature’s judiciary committee, noted Portland lawyer John Hobson, who chairs the governor’s bipartisan Judicial Nomination Advisory Committee, which screens judicial candidates and advises the governor on them.
“This broad support for Gov. Mills’ Supreme Court nominees is no accident,” he said. “It is the result of the care and attention that Gov. Mills has paid to the nomination process in order to ensure that only individuals with high qualifications and great integrity are nominated to positions of such importance to Maine’s citizens.”
Mills did not comment on the possibility that she could appoint a full court and be the first governor to do so in two centuries. A spokesperson said Mills “takes very seriously her constitutional responsibility to nominate highly qualified, well-regarded candidates to the bench who will deliver fair and impartial justice.”
Jason Savage, the executive director of the Maine GOP, which hopes to defeat Mills in November, acknowledged that Mills and former Gov. Paul LePage — her November rival — have appointed similar judges during their tenures.
However, “it is never good to have one governor appoint all justices, especially when that governor has shown she has a bias towards liberal ideology,” Savage said.
The governor appoints all judges in Maine except for county Probate Court judges, who are elected.
Maine is one of 25 states where voters do not elect high court justices. That practice has come under increased criticism as judicial elections have become more politicized and the cost of running for election has increased dramatically, according to the Brennan Center for Justice, which has worked to eliminate the election of judges.
The legislative confirmation process includes a hearing before the Judiciary Committee and a final vote by the Senate. Judicial terms are for seven years, and reappointments are pro forma.
The last time there was a full turnover on the court was between August 1976 and August 1981, according to retired Justice Donald Alexander, who last year published a book on the history of Maine’s judiciary. That included the addition of a seventh justice in 1977.
The only other recent governor to fill five of the seven seats on the court — as Mills is expected to do in the coming months — was Joseph Brennan, who served from 1979 to 1987, Alexander said.
Because it was not until 1957 that Maine governors served four-year rather than two-year terms, it is highly likely that Mills would be the first governor to appoint all of the court if reelected, Alexander said.
Even Maine’s first governor, William King, only appointed three justices, the number of judges on the court in 1820, the year Maine became a state. They traveled throughout Maine on horseback presiding at trials and hearing appeals. Chief Justice Prentiss Mellen of Portland was paid $1,800 a year. His associate justices, William Pitt Preble of Portland and Nathan Weston Jr. of Augusta, were each paid $1,500 per year.
The number of judges on the court has fluctuated over the last two centuries, with eight serving between 1852 and 1930, six serving between 1930 and 1977 and seven serving ever since. The Legislature decides how many justices serve on the court.
Alexander described the recent turnover on the court as similar to a generational shift that took place in the Maine judiciary in the late 1970s and early 1980s. By the end of 1984, all 16 Superior Court Justices were in their first seven-year terms. On the District Court, 13 of the 22 judges were in their first terms as well.