Duke Law School. Proponents add that elections affirm the electoral beliefs of candidates who present themselves for judicial positions. Goelzhauser offers useful and practical suggestions for ways in which states can facilitate increased transparency, such as anonymizing applicant data. As Goelzhauser notes throughout the book, transparency gaps complicate assessment of merit selection performance from a multi-state perspective; however, Nebraskas merit selection system is representative of merit systems in a number of states, so the analyses and findings offer broader insights useful beyond Nebraska state lines. Due to the nature of the Senate confirmation process, past nominees have tended to skew more toward the political center as a way to increase the nominees chance of receiving a simple majority of the vote.4 From there, unless their actions result in impeachment and conviction (the most recent removal from the bench being G. Thomas Porteous Jr. of Louisiana under charges of bribery and perjury),5 federal judges are free to decide cases without fear of political retribution. Nor have states that use merit selection generally had success in ensuring a diverse bench, raising questions about their processes for recruiting and vetting judicial candidates.26. 18 (2016), available at http://gavelgap.org/pdf/gavel-gap-report.pdf. Another important pro of having a merit-based system of judicial appointments is that it takes the process out of the hands of voters, avoiding one of the most popular alternatives to judicial appointments. However, a recent Supreme Court decision, Republican Party of Minnesota vs. White, affirmed the right of judges to speak on these issues. On average, judges will earn between $180,000 and $270,000 per year. 1. These trends put new pressures on state court judges, with the potential to impact the everyday lives of people across the country. And the promise of higher-quality judges, greater diversity, and reduced partisanship seems to be highly dependent on whether the merit selection applicant pool is somehow distorted (p. 79). They are unlikely to recognize the differences in the makeup of an effective judge and an ineffective one and are nearly as likely to vote for bad judges as they are to vote for good ones. See John F. Kowal, Brennan Ctr. Iowa Governor Kim Reynolds recently signed legislation that would increase her appointment power over the states judicial merit selection commission by removing the senior supreme court justice from the 17-member commission and giving the governor the authority to fill the particular seat. As a result, nonpartisan elections become somewhat of a character study, with voters being encouraged to take the time to learn more about the individuals presented on the ballot as opposed to simply their party affiliation. These methods are as follows: executive appointment, election, and merit selection. 1133, 1133 (1997). On the question of the initial or interim selection of judges to fill vacant seats, here, too, those considering reform should look at a wide range of options, considering the likely impact, and tradeoffs, associated with different selection options. 11. However, any judicial appointment system is rife with cons as well. September 16, 2012. This once again calls into question the claim that merit selection helps to at least moderate the influence of partisanship in the judicial selection process (p. 87). It eliminates the role of money and significantly reduces the role of politics in judicial selection, and it negates the possibility of conflicts of interest that arise when a campaign contributor (whether lawyer or client) appears before the judge. . In the end, judicial "merit" can be political as well. This potentially means that any "merit-based" system could be used to cover up politically driven judicial appointments from scrutiny. In theory, these judges would be the best equipped to deal with the complicated questions of justice that judges see every day. Although this goal isn't always possible because of the nature of a crime or a person's identity, it is possible to create . Kevin M. Esterling & Seth S. Andersen, Am. 133 (1999). 3. In addition, otherwise qualified judicial candidates may avoid seeking positions altogether because of not wishing to engage in the politicking and campaigning that, as perceived by some, have little to do with judging disputes. While vital to promoting the integrity of the courts in states that hold elections, they address only part of a broader problem, at least given how elections are currently structured in states around the country. Far from it. A study of the Nevada Supreme Court found that in 60 percent of civil cases decided in 2008-09, at least one of the litigants, attorneys, or firms involved in the case had contributed to the campaign of at least one justice.10 Weak recusal rules mean that judges face few barriers in hearing cases involving major financial supporters, particularly when that support takes the form of independent expenditures, which are less regulated. American Judicature Society, Campaign Contributors and the Nevada Supreme Court 2 (2010), available at http://www.judicialselection.us/uploads/documents/AJS_NV_study_FINAL_A3A7D42494729.pdf. Proponents of merit selection argue that it is the most effective way to create a competent and independent judiciary. Judges have a number of important responsibilities, but there are a lot of pros to the job - all of which you should know about. I would much rather have a constitutional scholar, a judge with vast experience in the law itself, than someone with a pretty face and a good election slogan who knows how to be popular. Chapter 2 provides a vivid picture of commission deliberations during the vacancy stage. 11. FLORIDA: Judges for the supreme court and district courts of appeal are chosen through a merit selection involving a nominating commission. He remarks that there is clear value in allowing all interested parties, especially women and minorities, to apply for judicial vacancies and in constraining executive appointment power. Goelzhauser notes, All the speakers were attorneys or judges who knew the applicants in a professional capacity, and comments were uniformly positive (p. 27). 1, Everyone interested in contributing [in a judicial election] has very specific interests. Similarly, Justices David H. Souter and John Paul Stevens, members of the courts liberal wing, announced their retirements while the Democrats controlled both chambers of Congress during the first year of the Obama administration, being replaced by Sonia M. Sotomayor and Elena Kagan, respectively.10, A holdover from the era of Jacksonian democracy, contested partisan elections see judges run openly as members of a political party, culminating in their direct popular election as judges for a term of years akin to statewide office holders and members of the state legislatures. See Brennan Ctr. Latest answer posted June 18, 2019 at 6:25:00 AM. Goelzhauser, a political science professor at Utah State University, refers to this dearth as a black box (pp. A pros of this process is that it minimizes the chance of selecting a judge because of their political status or their social links. Recent data from the American Constitution Society shows a troubling gavel gap along race and gender lines: While people of color make up 40 percent of the population, they represent only 20 percent of state judges.17 Women, who make up half the population, are less than a third of all state judges.18 State benches also fail to represent the diversity of the legal profession, with individuals with prosecutorial or corporate backgrounds dominating state (and federal) courts.19, Research suggests that both elective and appointive systems are producing similarly poor outcomes in terms of the diversity of judges.20 Money, old-boy networks, biasesboth explicit and implicitand inadequate pipelines for diverse candidates are all contributing factors. Jed Handelsman Shugerman, The Peoples Courts 7 (2012). Five states have gubernatorial or legislative appointments without a nominating commission, 16 states have merit selection through a nominating commission, and nine states (including Florida) have combined merit selection and other methods to select their judges. Any alternative system of choosing judges will have its own advantages and disadvantages, and may advance or impede important values related to the selection of judgesincluding judicial independence, judicial accountability and democratic legitimacy, judicial quality, public confidence in the courts, and diversity on the bench.27 There are important empirical questions about the likely impact of different systems on these values. According to Goelzhauser, if merit selection works as intended, commissions and governors should be selecting on qualifications and diversity rather than political considerations (p. 56). Goelzhauser provides clear empirical measures for his concepts of interest. The question of accountability likewise raises difficult questions about how to channel the publics legitimate interest in judges experience and judicial philosophy in a way that does not transform judges into ordinary politicians. But there is far more agreement on the problems associated with judicial elections than on potential reforms. In the face of growing threats to state courts legitimacy and to the promise of equal justice for alland in light of the limits of the most common reform proposalswe need to rethink how we choose state court judges. For example, while there is evidence that diverse nominating commissions are more likely to suggest a diverse slate of judicial candidates,21 in practice, many nominating commissions continue to be dominated by white men.22 On the election front, fundraising pressures can be a barrier to a more diverse bench, as can racial and gender bias. The Governor must select from the list. Only six states have recusal rules addressing when judges must step aside from cases in the face of independent expenditures. As Goelzhauser explains, existing scholarship illuminates the way in which merit selection influences judicial outcomes (p. 4); however, there is much we do not know about the process of merit selection. Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. While still elected directly by their constituents, nonpartisan contested elections see judicial candidates run for office strictly as individuals rather than members of or representatives of political parties. 1589, 1617-21 (2009), available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1409&context=dlj. Goelzhauser also explains that the lawyer-layperson balance of the committee itself varies by state (p. 109). | Editorial, Florida lawmakers take up plan to shield businesses from lawsuits, Lightning acquire Tanner Jeannot from Predators, Nipsey Hussles killer gets 60 years to life in prison, Murdoch says some Fox hosts endorsed false election claims, State post leaves surgeon little time to rest. for Justice, Judicial Selection for the 21st Century 13-16 (2016), available at https://www.brennancenter.org/publication/judicial-selection-21st-century. The initial term of office is one years. Yet, this is an area where the safeguards are almost uniformly weakin all but three states, judges are periodically reconsidered for their jobs, whether through elections or reappointment, putting job security pressures front-and-center. 10. /content/aba-cms-dotorg/en/groups/professional_responsibility/publications/professional_lawyer/2016/volume-24-number-1/rethinking_judicial_selection, The Professional Lawyer, Volume 24, Number 1, http://www.nytimes.com/2006/10/01/us/01judges.html?pagewanted=all, http://www.greenbag.org/ v13n1/v13n1_ifill.pdf, http://newpoliticsreport.org/app/uploads/JAS-NPJE-2013-14.pdf, http://www.acslaw.org/ACS%20Justice%20at%20Risk%20(FINAL)%206_10_13.pdf, https://www.brennancenter.org/sites/default/files/publications/Rethinking_Judicial_Selection_State_Courts.pdf, https://www.brennancenter.org/publication/new-politics-judicial-elections-2011-12, http://www.judicialselection.us/uploads/documents/AJS_NV_study_FINAL_A3A7D42494729.pdf, http://www.brennancenter.org/publication/new-politicsjudicial-elections-2000-2009-decade-change, http://www.justiceatstake.org/media/cms/JASJudgesSurveyResults_EA8838C0504A5.pdf, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1386&context=dlj, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1409&context=dlj, https://www.brennancenter.org/publication/how-judicial-elections-impact-criminal-cases, http://gavelgap.org/pdf/gavel-gap-report.pdf, http://www.afj.org/wp-content/uploads/2014/11/Professional-Diversity-Report.pdf, https://www.brennancenter.org/sites/default/files/legacy/Improving_Judicial_Diversity_2010.pdf, http://www.judicialselection.us/uploads/documents/Diversity_and_the_Judicial_Merit_Se_9C4863118945B.pdf, https://www.opensocietyfoundations.org/sites/default/files/answering_20050923.pdf, https://www.brennancenter.org/publication/judicial-selection-21st-century, http://judicialselectionmap.brennancenter.org/?court=Supreme. 1. American Bar Association List of the Pros of the Jury System. The era of Jacksonian democracy challenged this norm with demands for the direct elections of judges, with Mississippi becoming the first state to amend its constitution to reflect these popular sentiments in 1832. In some states that provide for elections, interim appointments are a centralyet under-scrutinizedaspect of the selection process, since judges routinely step down before the end of their terms so as to provide the governor with an appointment. 12. As the purpose of a judicial system is impartial interpretation of the law, merit is everything. In just the past few years, state supreme courts, which are the final word on questions of state law, have struck down tort reform legislation in Arkansas, ordered Kansass state legislature to equalize funding for public schools, and declared Connecticuts death penalty law unconstitutional. However, I do not think that the voters are the ones who should decide how to interpret the laws. 26. All rights reserved. Importantly, Goelzhauser notes that the time provided for public comment was limited in both the screening and interview stage, and those who spoke usually were connected to the candidates. Judges based in areas that favor one party over the other may be incentivized to author decisions that help their reelection efforts rather than making their rulings on the merits to the best of their ability. Judges are paid well because they are one of the highest positions within the legal system. Some answers to commissioner questions suggested strategic behavior on the part of applicants whose partisan leaning was slightly out-of-step with the state political environment. 21. 579, 580 (2005). Although not the focus of the text of this article, nonArticle III federal judges are appointed for specified terms of office in a variety of different ways. It is bad enough that politically-inspiredlaws can be passed by legislators who are beholden to the interest groups that got them elected, we do not also need judges who have to interpret the law in a certain way in order to remain elected. Surprisingly, relatively little attention has been paid to reselection as such, and how these unique pressures might be mitigated, regardless of how a judge initially made it onto the bench. Debate will (and should) continue as to the best way for a given jurisdiction to select its judiciary. Instead of getting judges who cater to popular opinion through the voting process, the appointment process results in judges who cater to the opinion of only a small set of people: whoever is on the appointment panel. The concern with capture is that it can have deleterious effects on judicial performance as certain interests work to shape a judiciary that aligns with their preferences, as opposed to a focus on merit. Merit selection acknowledges and accounts for the thought that knowing what individual character traits and characteristics comprise a qualitatively good judicial candidate are not necessarily something within the public sphere of knowledge. Press 2018). Ambition for public office has been explored extensively in the electoral context (particularly legislative); however, we know far less about what motivates the decision to apply for judicial vacancies in merit systems. 16. 15. Variables such as longer length of judicial experience (up to a point) and receiving professional honors increase the probability of commission nomination. The pros are numerous, but what they boil down to is that you want your judges to make their decisions based on the law, not based on what public opinion says or what people who can contribute lots of money to campaigns think. Today, 33 states along with the District of Columbia use some form of merit selection.24. On the down side, critics indicate that judges should spend their time reducing the backlog of cases rather than campaigning for office, that elections force candidates to solicit campaign contributions from lawyers and possible litigants, and candidates may wind up deep in debt or may lack sufficient money to properly inform the voters of their merits. See generally Kevin Costello, Supreme Court Politics and Life Tenure: A Comparative Inquiry, 71 Hastings L.J. Retention systems often include a merit based appointment system for selecting judges, thus eliminating the politics and uncertainty of judicial selection via contested election. Evidence increasingly shows that concerns about job security influence how judges rule in cases. Based on the thought that judges are, in fact, policy makers, advocates indicate judicial elections prove to be a sufficient means of allowing constituencies to express their will regarding the makeup and perspective of the bench.14 Contested partisan elections go one step further by having judges openly identify as a member of a particular political party, signaling to voters in easily accessible terms what their overarching political philosophy may be. First adopted by Mississippi in 1832, contested partisan elections for selecting judges became so widespread that the concept was included in the constitution of every state admitted into the Union between the years 1846 and 1912.11 While the popularity of contested partisan judicial elections has waned in the past century, 20 states still use contested partisan elections to select at least some of their trial court judges and seven (Alabama, Illinois, Louisiana, New Mexico, North Carolina, Pennsylvania, and Texas) select their appellate judges and supreme court justices through contested partisan elections as well.12. Party voters who participate in their respective primaries can seek to use party affiliation to ensure that the candidates who best typify their values can move forward to the general election. Critics of contested partisan judicial elections assert that the very nature of engaging in party politics conflicts with the ideals of a free and independent judiciary.15 Publicly linking a judge (and, more broadly, the court) to a major political party or parties can create a loss of confidence in the judiciarys ability to remain impartial in its decisions. In my opinion, district attorneys and judges should not be popularly elected on regular, short terms. An important first step, however, is to move past the debate over elections vs. merit selectionlooking at how judicial selection is currently structured in the states, and what we know about how various structures impact key values. The judge then . While electing judges is not a flawless system, it is better than alternatives. About job security influence merit selection of judges pros and cons judges rule in cases executive appointment, election, and Life Tenure: Comparative. 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