By Alex Velto

The 2018 election for governor could shape Nevada’s judicial landscape for years to come.

The election of two new Supreme Court justices will leave at least one Court of Appeals seat vacant, and possibly two. Appeals Court Judge Abbi Silver will fill the seat of retiring Justice Michael Douglas. Appeals Court Judge Jerry Tao could fill the seat belonging to Justice Michael Cherry, who is also retiring. (Tao winning Cherry’s seat is far from certain. He is in a heated race that includes District Court Judge Elissa Cadish.)

With the possibility of the governor appointing two appellate judges early on in his or her term, it’s worth noting the different potential judicial outcomes. U.S Supreme Court Chief Justice John Roberts famously said that his “job is to call balls and strikes…”

But the job of an appellate judge is not always so apolitical. Appellate courts often resolve novel questions of law with rulings that could ultimately be decided by a judge’s political predisposition. Who appoints the next Appellate Court judges, and the judges’ beliefs, could shape Nevada law.

Appellate Court judges appointed by the next governor could have any number of different political views depending on who takes Nevada’s highest office. Our judicial selection process strives to filter out partisan extremes and choose only the most qualified options for the governor. All candidates are vetted through the Judicial Selection Commission, and the governor then chooses the best candidate from a group of three. That candidate is then appointed by the governor to serve the remainder of the seat’s term before the appointed judge must run for re-election.

Once appointed, judicial seats are often the safest seats to keep. Incumbents usually have institutional support of both the attorneys who want them retained, and from the governor who appointed them.

Justice Lidia Stiglich, for instance, has received immense support from Gov. Brian Sandoval, who appointed her, in her election. A scheduled fundraising event this month includes backing from Sandoval, as well as former Govs. Robert List, Richard Bryan and Bob Miller.

In her time on the Court, Justice Stiglich has also established herself as an intelligent, hardworking and capable jurist. These factors all work heavily in favor of an incumbent judge or justice.

Who could the appointments be? This is a harder question to answer. Any appointments will likely align with—to at least some extent—the political beliefs of the next governor. Attorney General Adam Laxalt would likely prefer a more traditionally conservative jurist, having been a staunch supporter of recently appointed U.S. Supreme Court Justice Neil Gorsuch. Laxalt went so far as to co-author a column for Fox News endorsing Gorsuch and started a petition on his website that advocated for an appointment “without delay.”

        Neither Democratic candidate has publicly spoken about Gorsuch’s appointment. But both candidates would likely want to appoint somewhat left-leaning judges.

Even then, there will be differences.

Clark County Commissioners Chris Giunchigliani and Steve Sisolak have varied political views that could shape their choices. Giunchigliani, being more progressive, could lean toward more progressive judges. Sisolak, more commonly associated with business interests, could lean toward more pragmatic judges. Several current District Court judges fit either of these profiles.

The Court of Appeals is also a court of limited jurisdiction. It has been set up as a pass-down model, whereby the Supreme Court takes the most significant cases and gives the Appellate Court cases that tend to not require interpreting new law. The Appellate Court hears about one-third of all appeals submitted to the Nevada Supreme Court. This is a check on any candidate whom the new governor may see as a voice for policy instead of making the right decision under the law. Simply, the Appellate Court’s influence over Nevada law is limited by its structure.

But the Nevada Court of Appeals’ time as a court of limited jurisdiction may be short lived. It was created to deal with the backload of Nevada appeals. So far, it has been immensely successful, having handled almost 700 cases in 2016 and nearly 1,000 in 2017.

Once the backlog is reduced, converting the court to a traditional pass-through model—with appeals going through the Appellate Court on their way to the Supreme Court—could be next. Out of the 39 states with appellate courts, only a handful have either used or currently use the pass-down model. And all of those states have either more Supreme Court justices or more Court of Appeals judges.

Evolving Nevada’s Court of Appeals into a more traditional pass-through court, as opposed to the current push-down model, has been a topic of conversation at several legal panel discussions in the past few years. The push-down model means 66 percent of the Appellate Court’s docket is criminal cases, as compared to 44 percent for the Supreme Court. Appellate Court opinions are not typically on ground-breaking legal issues. Changing to a pass-through model would drastically change the Appellate Court’s docket, requiring it to hear all cases on their way to the Supreme Court.

The Appellate Court would likely need to be expanded to six judges, with three sitting in a northern district and three sitting in a southern district, to accommodate the increased caseload. Such a change would give the Appellate Court more power over the cases it hears and more influence over the law in Nevada. This change could lead to a better and more effective appellate system overall. But it would also mean even more open seats that need to be filled by Nevada’s next governor.

What remains to be seen is if the Nevada Court of Appeals becomes a steppingstone to the Nevada Supreme Court, or if Appellate Court judges remain on the Appellate Court for multiple terms. If the upcoming election is any indication, it seems like the answer is clear.

The Appellate Court is a judge’s stop on the way to the Nevada Supreme Court. Two seats on the Nevada Supreme Court open, and two Nevada Appellate Court judges run for them. The opening these judges’ leave, and future openings created by a restructuring of the Court of Appeals, could be filled by very different judges depending on our next governor.

Disclosure: Steve Sisolak and Chris Giunchigliani have donated to The Nevada Independent. You can see a full list of donors here.

Alex Velto is a member of UNLV’s William S. Boyd Law School, class of 2018.