merit selection of judges pros and cons
These critics contend judges are not recusing themselves enough when a campaign donor is involved in a court case before the . Critics of the approach claim that the need for voters to fully familiarize themselves with the candidates can prove to be a double-edged sword.19 They argue that party affiliation serves as a basic shorthand for voters on where the candidate may land on major issues. The theme this year is "Celebrate Your Freedom: Independent Courts Protect Our Liberties.". American Bar Association Thus, the question is not only how to best insulate judges from political forces, but also which political forcesincluding the political branches, special interests, political parties, and majority rulepose the gravest threat to judicial independence. 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. Matthew J. Streb, Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections, Richard Watson & Rondal Downing, The Politics of the Bench and the Bar: Judicial Selection Under the Missouri Nonpartisan Court Plan, Jeffrey Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law, /content/aba-cms-dotorg/en/groups/judicial/publications/judges_journal/2021/fall/judicial-selection-the-united-states-overview, https://www.uscourts.gov/sites/default/files/allauth.pdf, https://www.congress.gov/congressional-report/111th-congress/house-report/427/1, https://www.uscourts.gov/judges-judgeships/about-federal-judges, https://fedsoc.org/commentary/publications/the-case-for-partisan-judicial-elections, https://ballotpedia.org/Nonpartisan_election_of_judges, https://www.lindenwood.edu/files/resources/stuteville.pdf. Judges for circuit courts are elected by way of nonpartisan elections to six-year terms. 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. A criticism unique to merit selection is that its claim of eliminating party politics from selecting judicial candidates is false. 28. . At the same time, almost every state gives the governor the power to make appointments for interim vacancies, which occur when a seat opens before the end of a judges term. These are difficult questionsand areas for further researchbut they highlight that there may be opportunities to truly rethink how states choose their judges and develop models that better respond to todays needs. 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). Pros Cons Judges who are appointed are more likely to be highly qualified . 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. 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. "What are the pros and cons of the merit appointment system of selecting judges?" 5. Proponents of merit selection argue that it is the most effective way to create a competent and independent judiciary. 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. While electing judges is not a flawless system, it is better than alternatives. Do some institutional specifications make certain merit selection systems more susceptible to capture, which could affect the systems ability to deliver on things like the appointment of high-quality jurists? New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting); see also generally Jeffrey Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (Oxford Univ. 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. 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. 6. Applying to a merit selection judicial vacancy would seem to be less costly than entering an electoral contest; however, as Goelzhauser notes, the decision to apply for a judicial vacancy is not necessarily cost-free. 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. After 245 years, the United States has not adopted a single unified method with which to select judges. 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. 1053 (2020). Here are some of the pros and cons of electing judges. . 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. All rights reserved. Under this process, the Governor appoints new Justices from a list of three to six names submitted by a Judicial Nominating Commission. Its very hard not to dance with the one who brung you.13. Merit selection went through a period of broad adoption in the 1960s and 1970s. Specifically, attorneys who are ideologically congruent with the appointing governor are more likely to apply for vacant judgeships (p. 87). 5. In my opinion, district attorneys and judges should not be popularly elected on regular, short terms. His discussion of the use of judicial selection in a variety of specifications at the federal level (i.e., for federal magistrate judges) and internationally illustrates that American states are not the only laboratories for institutional experimentation with merit selection. Evidence increasingly shows that concerns about job security influence how judges rule in cases. The chief con with appointing judges is that, paradoxically, it may be just as political as letting regular voters select their judges. Focusing on judicial selection as reflecting different phasesinitial terms on the bench, subsequent terms, and interim appointmentsalso makes clear that selection methods may operate differently, and create different incentives, depending on the phase in which they are utilized. 3. . See Richard Watson & Rondal Downing, The Politics of the Bench and the Bar: Judicial Selection Under the Missouri Nonpartisan Court Plan (John Wiley & Sons., Inc. 1969). Judicature | Bolch Judicial Institute | 210 Science Drive | Durham, NC 27708-0362 | (919) 613-7073 | judicature@law.duke.edu Here Goelzhauser examines a commissions screening and interview of applicants for an open position on the Arizona Court of Appeals. Ninety-five percent of all cases are filed in state court, with more than 100 million cases coming before nearly 30,000 state court judges each year. Additionally, allowing voters to choose judges, in a way, makes judicial appointment political: voters will vote for judges they agree with, and if popular opinion swings in a way that becomes unconstitutional (an outrageous example would be if, suddenly, the majority of people thought slavery was acceptable again), it may result in numerous judges who thought in the same vein. 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. 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). About half of all federal judges (currently 870) are Article III judges: nine on the U.S. Supreme Court, 179 on the courts of appeals, 673 on the district courts, and nine on the U.S. Court of International Trade.1. 14. 12. 19. . Not all areas elect them, though. By Andrew J. Clark. A merit-based appointment system prevents voters from making this mistake. 18 (2016), available at http://gavelgap.org/pdf/gavel-gap-report.pdf. Instead, these primary elections typically narrow the field to two candidates for the general election. Goelzhausers work sheds new light on judicial merit selection processes and raises important questions for future researchers. There probably is no perfect way to select and retain judges, because we don't live in a perfect society. Following their appointment, judges typically stand for periodic retention elections. Moving past existing debates opens up the possibility of new selection models better suited to addressing the challenges facing state courts today. 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. See Kathleen L. Barber, Ohio Judicial ElectionsNonpartisan Premises with Partisan Results, 32 Ohio St. L.J. The Supreme Court should not be subjected to the rank political machinations at the heart of court packing. Because the branches that are the most likely to gain an exorbitant amount of power and then to use that power for political purposes are the executive branch and the legislative branch, democracies need to have a judicial branch that is free from political pressures. I agree. Goelzhauser presents a comprehensive analysis of all state supreme court merit selection appointments between 1942 and 2016 to discern whether institutional design influences the quality and diversity of judicial appointees. Judges are subject to retention elections for six-year terms. 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. Yet in all but three states, judges can serve multiple terms and must stand for election or reappointment, potentially putting their judicial records up for scrutiny. Merit selection went through a period of broad adoption in the 1960s and 1970s. Each has its advantages and disadvantages. Sherrilyn A. Ifill, Judicial Diversity, 13 Green Bag 45, 48 (2009), available at http://www.greenbag.org/ v13n1/v13n1_ifill.pdf. But no state has moved from contested elections to a merit selection system in more than 30 years. Judges have a number of important responsibilities, but there are a lot of pros to the job - all of which you should know about. 895, 912-13 (1998); Jim Walker, The Politics of State Courts, in The Judicial Branch of State Government: People, Process, and Politics 171, 178 (Sean OHogan ed., 2006). Nearly 90 years ago, U.S. Supreme Court Justice Louis Brandeis famously wrote: It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.26 Judicial selection in the United States is a wonderfully rich example of that maxim. The question of judicial selection has grown even more opaque in the nearly two centuries since, as various other methods for judicial selection have been implemented. This first con hints at the real problem with a "merit-based" appointment system for judges: what is "merit"? Michael ODonnell, Commander v. Chief: The Lessons of Eisenhowers Civil-Rights Struggle with His Chief Justice Earl Warren, The Atl. What are five reasons to support the death penalty? 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. for Justice Judicial Selection: An Interactive Map, http://judicialselectionmap.brennancenter.org/?court=Supreme (last visited Sept. 2, 2016). Each process has its pros and cons but there is one that easily stands out from the others. This is no easy task. See Joanna M. Shepherd, Money, Politics, and Impartial Justice, 58 Duke L.J. The U.S. Constitution and Judicial Qualifications: A Curious Omission, Assessing Risk: The Use of Risk Assessment in Sentencing, A Blinding, An Awakening, and a Journey Through Civil Rights History, Conversations of a Lifetime: The Power of the Sentencing Colloquy and How to Make It Matter, Taking Beyond a Reasonable Doubt Seriously, Precedents Unfulfilled Promise: Re-examining the role of stare decisis, Sports in the Courts: The NCAA and the Future of Intercollegiate Revenue Sports. What are the strengths and weakness of the legislative branch? 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. A merit-based appointment system prevents voters from making this mistake. 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. 2010), available at https://www.brennancenter.org/sites/default/files/legacy/Improving_Judicial_Diversity_2010.pdf. If a primary election is held, it is not to narrow the candidates to one from each party. Importantly, some of the strongest empirical evidence about how judicial selection impacts judges independence suggests that reselection pressureswhether through elections or appointmentspose severe challenges to fair courts.29 Yet, this is an area where the safeguards are consistently weak. To explore this premise systematically, Goelzhauser submitted public record requests to all states employing merit selection; only Nebraska supplied the information needed to properly explore the factors that influence commission and governor choice. 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. Funding for FRONTLINE is provided through the support of PBS viewers and by the Corporation for Public Broadcasting. 7 (Summer/Fall 2014), https://www.lindenwood.edu/files/resources/stuteville.pdf (last visited June 29, 2021). (Mar. This, supporters claim, provides a degree of thoughtfulness on the part of the voters that can produce a truly independent bench equipped to address the communitys needs. Nonpartisan elections were adopted in an attempt to help restore the integrity of the courts while helping break party strangleholds, with Cook County, Illinois, becoming the first to implement the method in 1873.16 As of today, 13 states still rely on contested nonpartisan elections (Arkansas, Georgia, Idaho, Kentucky, Minnesota, Mississippi, Montana, Nevada, North Dakota, Oregon, Washington, West Virginia, and Wisconsin) to elect their supreme court justices.17. Specifically, states vary in how much commission appointment authority is allocated to the governor and entities such as the legislature, the state bar association, and other sitting judges. It is, however, intended to provide a high-level discussion for the various methods (some of which are well-known nationally, while some are not), some perceived benefits and downfalls of each, and some history for each along the way. Am. for State Cts., http://www.judicialselection.us/judicial_selection/index.cfm?state=OH. However, any judicial appointment system is rife with cons as well. Chicago Tribune. 8. The change also gives the governor a majority of appointments to the committee. Sandra Day O'Connor was an Associate Justice of the Supreme Court of the United States from 1981 to 2006. The chief con with appointing judges is that,. PUBLISHED BY: Only three statesMassachusetts, New Hampshire, and Rhode Islandhave life tenure (with or without a mandatory retirement age) for judges. Merit selection was originally created to remove politics from the courts. 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. sex offenders,8 and have touted their own record in upholding nearly 90% of all death sentences. 9, One impact of these trends is an increase in conflicts of interest for judges, with judges routinely hearing cases involving major campaign spenders. Retention elections, where judges are unopposed and face a yes-or-no vote, have started to show similar patterns: average spending per seat increased ten-fold from 2001-08 to 2009-14 (from $17,000 per seat to $178,000 per seat). Judges are obligated to decide cases in accord with their understanding of the law and facts at issueputting aside political preferences and pressure from special interests. 2. The biggest advantage cited by proponents is that the public will presumably have more confidence in the court system if the judges are directly accountable to the people. A : Judicial candidates are prohibited from making predictions and promises about legal issues that might come before their courts. With our Essay Lab, you can create a customized outline within seconds to get started on your essay right away. Judicial Selection in the States, Natl Ctr. What that best way is, of course, subject to that debate. The views expressed are solely those of the author. Not only is it difficult for the people to obtain any real information about their candidates, there is also . The question of who sits on the bench has high stakes, and judicial elections are increasingly indistinguishable from the rough-and-tumble of ordinary politics, with troubling implications for the integrity of state courts. class="algoSlug_icon" data-priority="2">Web. DOWNERS GROVE I agree that something should be done to improve the judicial selection . Elections make judges more democratically accountable David Dewold. Latest answer posted June 18, 2019 at 6:25:00 AM. 24. Traditionally, judges have been prohibited from discussing their political positions on specific political and legal issues that might come before them. Jurors have more compassion than judges. States have also lagged in adopting either reform. Pros and Cons of Various Judicial Selection Methods . With the partisan election is makes the voting process go along much faster seeing as they can just head to one of 3 columns, either Democrat, Republican or Independent, and they don't have to sift through a huge list of people choosing which would be best to vote for. A pros of this process is that it minimizes the chance of selecting a judge because of their political status or their social links. Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. 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. Years of professional experience, public and private practice experience, and law school quality are a few of the factors used to assess judicial qualifications (p.59-60), and partisan affiliation is measured using the candidates partisan identification and campaign donation history (p. 60). Jed Handelsman Shugerman, The Peoples Courts 7 (2012). 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. Authorized Judgeships, Admin. 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. The possibility of new selection models better suited to addressing the challenges facing courts... Important questions for future researchers, 48 ( 2009 ), available at http: //judicialselectionmap.brennancenter.org/ court=Supreme... 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Than alternatives elections for six-year terms are not recusing themselves enough when a donor! The committee, 48 ( 2009 ), available at http: //www.judicialselection.us/judicial_selection/index.cfm? state=OH retention elections six-year... A judge because of their political positions on specific political and legal issues might. Can create a competent and Independent judiciary legislative branch in the 1960s 1970s... The merit selection of judges pros and cons States from 1981 to 2006 process is that, paradoxically, it may be as... Are some of the pros and cons but there is one that stands... Which to select and retain judges, because we do n't live in a court before! And raises important questions for future researchers by a Judicial Nominating Commission before courts. Better suited to addressing the challenges facing state courts today ( 2016 ) the Judicial selection questions! 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