After 245 years, the United States has not adopted a single unified method with which to select judges. Recent research suggests, for example, that campaign spending affects judges decisions on the bench.5 Yet other problems cut across selection methods, including a lack of diversity on the bench and evidence that concerns about job security impact judges decisions in controversial cases. Latest answer posted November 14, 2019 at 7:38:41 PM. They are first nominated by the president of the United States, and then with the Advice and Consent of the U.S. Senate, confirmed pursuant to the Appointments Clause in Article II of the U.S. Constitution.2 Envisioned by the framers as a means to insulate the courts from shifts in the public consensus, life tenure is derived from the good Behaviour clause in Article III of the Constitution, a concept tracing back to England.3 This system of life tenure for Article III judges has existed, more or less uninterrupted, since the Constitution was ratified in 1788. With executive and legislative races (both federally and in the states) tending to consume the lions share of the attention during election years, few voters can invest the time, energy, or resources to fully familiarize themselves with the entire roster of judicial candidates up for election.20 Critics also point to the fact that the realities of campaigning make it nearly impossible to prevent partisan politics (and politics more broadly) from playing a role in judicial elections. Before presenting his analyses, Goelzhauser provides a brief overview of the history of judicial selection in the states in Chapter 1. Goelzhauser offers useful and practical suggestions for ways in which states can facilitate increased transparency, such as anonymizing applicant data. For now, however, it is important to recognize the significant differences in how American judges are selected, and the pros and cons of each, and to continue to think hard about the best way to select judges going forward. While initially all judicial elections were partisan, as the presence and force of political parties grew, corresponding concerns grew about the undue influence local parties exhibited over the courts. MERIT SELECTION. . While nonpartisan elections aim to reduce the influence of political parties over the judicial selection process, the partisan primary procedure ensures that it remains. 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. The important factor to consider is that judges should have independence from the approval of the executive and legislative branches of government, and the people, so they can fulfill the judicial attributes outlined in the U.S. Constitution. The second set of proposals has focused on judicial selection reform, typically urging states to replace contested elections with a merit selection system. for Justice, How Judicial Elections Impact Criminal Cases 7-11 (2015), available at https://www.brennancenter.org/publication/how-judicial-elections-impact-criminal-cases. Finally, he examines how the institutional design of merit selection affects committee capture, which could negatively affect merit selection performance. Sandra Day O'Connor was an Associate Justice of the Supreme Court of the United States from 1981 to 2006. One set of reforms focuses on mitigating the impact of money and special interests in judicial elections, typically through public financing systems and stronger recusal rules, which govern when judges have to step aside from cases. This includes 22 states that use elections for a judges initial term on the bench, and 38 states that use elections for subsequent terms on the bench. 8. Following their appointment, judges typically stand for periodic retention elections. Elections make judges more democratically accountable David Dewold. Judges are not politicians, even when they come to the bench by way of the ballot.Williams-Yulee v. The Florida Bar (Roberts, C.J.) 24. Additionally, due to the costs involved, elections discourage many well-qualified attorneys from seeking judicial office, and the merit selection process generally results in a higher number of appointments of minority and female candidates. According to Goelzhauser, merit selection supporters argue that the use of commissioners with requisite legal experience reduces the influence of partisan and patronage considerations, which presumably leads to higher-quality judicial appointees and greater access to judicial office for traditionally underrepresented groups. The chief con with appointing judges is that, paradoxically, it may be just as political as letting regular voters select their judges. While there is significant variation in merit selection systems, states generally utilize nominating commissions to screen candidates and present a slate to the governor, who must select from among the nominees. 26. 21. Retention systems often include a merit based appointment system for selecting judges, thus eliminating the politics and uncertainty of judicial selection via contested election. Prac. 13 (2008). DOWNERS GROVE I agree that something should be done to improve the judicial selection . Tony A. Freyer, American Liberalism and the Warren Courts Legacy, in 27 Revs. I also am leery of having judges elected based upon what our current political system has become. 2022 American Bar Association, all rights reserved. Indeed, scholarship suggests that when voters face low-information electionsas judicial elections typically arethey may, consciously or unconsciously, rely on racial and gender stereotypes as shortcuts in determining their choice.23. Much like arguments against the life tenure system, opponents of merit selection claim that the system is not democratic and does not select candidates fully representative of the population they are serving. In a 2001 survey of state supreme court, appellate, and trial judges, 46 percent said they believed campaign contributions had at least some impact on judges decisions.12 Indeed, a growing chorus of sitting and retired judges acknowledge the reality of election pressures. What are the strengths and weakness of the legislative branch? for State Cts., http://www.judicialselection.us (last visited June 29, 2021); see also Nonpartisan Election of Judges, Ballotpedia, https://ballotpedia.org/Nonpartisan_election_of_judges (last visited June 29, 2021). The biggest pro of having a merit-based system of appointment is simple: you get the best and most qualified judges sitting on the bench. | Website designed by Addicott Web. Press 2018). Some type of merit plan for selection of judges is utilized by 24 states and the District of Columbia. Goelzhauser assesses these metrics through an exploration of the expressive and progressive ambition of eligible attorneys and judges when vacancies emerge, and an in-depth examination of the implementation stage of merit selection (i.e., commission action when a vacancy occurs). Sherrilyn A. Ifill, Judicial Diversity, 13 Green Bag 45, 48 (2009), available at http://www.greenbag.org/ v13n1/v13n1_ifill.pdf. In light of these findings, Goelzhauser recommends that those invested in merit selection turn their attention to attendant issues such as candidate pool construction and commission decision-making (p. 127). Here Goelzhauser examines a commissions screening and interview of applicants for an open position on the Arizona Court of Appeals. These findings would seem to bode well for those who champion merit selections ability to ensure that quality jurists are nominated and appointed. While there is growing recognition of the problems facing state courts, many of the proposed solutions have not been fully responsive to these challenges. It's time to renew your membership and keep access to free CLE, valuable publications and more. Diane M. Johnsen, Building a Bench: A Close Look at State Appellate Courts Constructed by the Respective Methods of Judicial Selection, 53 San Diego L. Rev. In recent decades, and particularly since 2000, state supreme court elections have become increasingly costly and politicized. 10. Iowa Governor Kim Reynolds recently signed legislation that would increase her appointment power over the state's 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. Pros and Cons of Various Judicial Selection Methods . History has recorded cases in which certain judges of the Supreme Court have, in their single presence or in their single absence, made the difference in a ruling. In the face of mounting evidence that courts capacity to provide basic fairness is at risk in many states, a host of bar associations, scholars, task forces, and legislators have suggested reforms.24 Yet these proposals have both struggled to gain traction and failed to address many of the most troubling aspects of how judicial selection is currently functioning. Election: In nine states, judges. The way we select judges has a profound impact on the kinds of courts, judges, and, ultimately, justice that we have in our country. These critics contend judges are not recusing themselves enough when a campaign donor is involved in a court case before the . Debates over judicial selection are often framed as a choice between contested elections and merit selection, in which a nominating commission vets potential candidates who are appointed by the governor and then typically stand for periodic yes-or-no retention elections. Scott Greytak et al., Bankrolling the Bench: The New Politics of Judicial Elections 2013-14 at 21, 34-40, 63 (Laurie Kinney ed., 2015), available at http://newpoliticsreport.org/app/uploads/JAS-NPJE-2013-14.pdf. The existence of this political pressure drives the list of the pros and cons of having a merit-based appointment system for the judges on the judiciary. For example, can nominating commissions be structured in a way that more effectively promotes democratic legitimacy and diversity? Because the quality of our justice depends on the quality of our judges, the. 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. On average, judges will earn between $180,000 and $270,000 per year. However, I do not think that the voters are the ones who should decide how to interpret the laws. For example, as legal historian Jed Shugerman has observed, In the switch from one form of selection to another, judges become more independent from one set of powers but more accountable to another.30 The switch in many states from appointments to elections in the nineteenth century, for example, gave judges more independence from the governor and state legislatures, but less independence from majoritarian politics and party bosses. Jon and Jo Ann Hagler on behalf of the Jon L. Hagler Foundation. She was known for her balanced and dispassionate opinions. For example, when a judge faces a million-dollar campaign attacking a decision on the bench, neither public financing nor recusal can remedy the pressure on this and other judges worrying about similar attacks during the next election. 22. It's time to renew your membership and keep access to free CLE, valuable publications and more. A merit-based appointment system prevents voters from making this mistake. Web Site Copyright 1995-2023 WGBH Educational Foundation. 1, Everyone interested in contributing [in a judicial election] has very specific interests. Over the course of 25 years, the commission consistently saw itself divided, with one wing representing small-firm plaintiffs lawyers and criminal defense attorneys and the other wing representing large-firm civil defense attorneys.25 And for merit systems where the governor selects the individual from names submitted by the commission, partisan politics undoubtedly are at play. 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. 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. EDITOR'S NOTE: This is the last of six guest columns written by Hernando County Bar Association members and published on this page during Law Week, which began Sunday. The partisan election of judges is a selection method where judges are chosen through elections where they are listed on the ballot with an indication of their political affiliation.. As of December 2021, eight states used this method at the state supreme court level and eight states used this selection method for at least one type of court below the supreme court level. These are just a few examples of how the selection of state court judges has become increasingly politicized, polarized, and dominated by special interestsparticularly in the 39 states that use elections as part of their system for choosing judges. 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. Additionally, judges are rarely removed when they stand for retention, and frequently don't have opposition in elections, so merit selection often results in what amounts to life tenure for judges. The views expressed are solely those of the author. The nonpartisan election of judges is a selection method where judges are chosen through elections where they are listed on the ballot without an indication of their political affiliation. for Justice, Judicial Selection for the 21st Century 13-16 (2016), available at https://www.brennancenter.org/publication/judicial-selection-21st-century. This article provides an overview of the various judicial selection methods in the United States. Supporters of nonpartisan elections claim that the system stays true to the principles of popular consent and accountability that led to the first judicial elections.18 Nonpartisan elections still hold judicial candidates accountable to the public; however, candidates would not need to find themselves in deference to a larger, party apparatus. Authorized Judgeships, Admin. Its particular emphasis on the primary is of note though. Then, using multi-method research approaches involving meticulous case study analyses and impressive original datasets, Goelzhauser provides an insightful and thought-provoking exploration of the stages and implementation of judicial merit selection. U.S. Const. Judges of the supreme Court, and all other Officers of the United States.. One striking factor is that while elective and appointive systems are often described in opposition to each other, the majority of states have elements of both systems. While electing judges is not a flawless system, it is better than alternatives. 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. Far from it. In the words of Richard Neely, a retired chief justice of the West Virginia Supreme Court of Appeals, Its pretty hard in big-money races not to take care of your friends. One component of Goelzhausers analysis of whether merit selection works involves examination across three key metrics: judicial quality, judge diversity, and the influence of partisanship. These methods are as follows: executive appointment, election, and merit selection. That said, the ensuing year saw a progressive majority at the states constitutional convention push through a proposal allowing primary nominations for elected offices. If that's a bad thing when it comes to our government representatives, it's a horrible thing for our judges. Across the country, state courts are facing challenges to their basic fairness and legitimacy, many of which are tied to states systems for choosing judges.