Using quantitative analyses, Chapter 3 explores why commissions and governors nominate and appoint particular applicants. 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. 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. Finally, he examines how the institutional design of merit selection affects committee capture, which could negatively affect merit selection performance. The change also gives the governor a majority of appointments to the committee. Diversityincluding racial, gender, socioeconomic, and professional diversityis vital to a well-functioning court system, one that draws from as broad a pool of talented lawyers as possible, fosters robust deliberation that reflects different life perspectives, and engenders confidence within the communities it serves. . Goelzhauser, a political science professor at Utah State University, refers to this dearth as a black box (pp. This potentially means that any "merit-based" system could be used to cover up politically driven judicial appointments from scrutiny. Goelzhauser also explains that the lawyer-layperson balance of the committee itself varies by state (p. 109). Most constitutional governments, including the United States' government, use three branches of governmentthe legislative, executive, and judicialand rely on a system of checks and balances to ensure that none of these branches gain too much power over the others. In 12 other states, judges are elected, but the elections are nonpartisan, which means the judges do not reveal their political affiliation. 21. In recent years, Citizens United v. FEC, which barred restrictions on independent spending by corporations and unions, has also cast a long shadow, with spending by outside groupsmany of which do not disclose their donorssurging. This article updates a series of articles, including pro/con arguments on merit selection of judges, that were previously published in North Carolina Insight and now are contained in the latest edition of North Carolina Focus: Jack Betts, "The Debate Over Merit Selection of Judges," North Carolina Focus, N. C. Center for . 16. 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. Appointed judges then serve for a term of years and are then required to run for retention.23 The system traces back to a voter initiative to implement merit selection passed by the state of Missouri in 1940 and has grown progressively more popular in the states during the latter half of the twentieth century. The identifying feature of merit selection is its two-stage appointment process: An appointed commission winnows a list of candidates and then forwards that list of candidates to the governor for appointment. Considering these values offers new potential paths for reform. September 16, 2012. 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. 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? 18. 1, Everyone interested in contributing [in a judicial election] has very specific interests. 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. 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. However, Goelzhauser also finds that women applicants are disadvantaged in terms of having their nominations forwarded by commissions to the governor. Debate will (and should) continue as to the best way for a given jurisdiction to select its judiciary. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. 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. 579, 580 (2005). The summary that follows is not comprehensive in discussing the various methods or positives or negatives for each method. Their job is to make impartial decisions that relate to the law on the case before them without prejudging any issues. Retention elections, where a sitting judge is unopposed and faces an up-or-down vote, are the most common reselection method (used in 19 states), suggesting the importance of understanding how retention elections operate and the incentives they create.28. Merit selection went through a period of broad adoption in the 1960s and 1970s. Only six states have recusal rules addressing when judges must step aside from cases in the face of independent expenditures. 2023. Who are the experts?Our certified Educators are real professors, teachers, and scholars who use their academic expertise to tackle your toughest questions. 10. See Gregory L. Acquaviva & John. 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. 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. The two most common methods of selecting state judges (as opposed to federal judges) are 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. Finally, another con of a merit-based system of appointing judges is that deciding, once and for all, what it means to be a "good" judge is inherently impirical. Not all areas elect them, though. One concern expressed about merit selection is the removal of direct public participation in the selection process, as compared to elections (p. 3). Merit selection: Merit selection was devised as a means of separating judges from the election process. Pros And Cons Of The Texas Judicial System. He served as an extern for Judge Samuel A. Thumma of the Arizona Court of Appeals during the spring and summer of 2021. But no state has moved from contested elections to a merit selection system in more than 30 years. of the U.S. Courts at 8 (of 8), https://www.uscourts.gov/sites/default/files/allauth.pdf (last visited June 6, 2021). 5. 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. In the end, judicial "merit" can be political as well. 7 (Summer/Fall 2014), https://www.lindenwood.edu/files/resources/stuteville.pdf (last visited June 29, 2021). 25. for State Cts., http://www.judicialselection.us/judicial_selection/index.cfm?state=OH. Q. However, he pointedly notes that serious concerns of transparency accompany merit selection systems (p. 139), concerns that are as important as the other findings produced by Goelzhausers analyses. 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. The answer to the question of whether merit selection works is understandably complex, and Goelzhauser concludes by assessing his findings in light of the normative goals and expectations of merit selection. With our Essay Lab, you can create a customized outline within seconds to get started on your essay right away. As the purpose of a judicial system is impartial interpretation of the law, merit is everything. She was known for her balanced and dispassionate opinions. What that best way is, of course, subject to that debate. 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. Michael ODonnell, Commander v. Chief: The Lessons of Eisenhowers Civil-Rights Struggle with His Chief Justice Earl Warren, The Atl. .They mean to be buying a vote. Justice Paul Pfeifer, Supreme Court of Ohio2, [T]he publics confidence in the judiciary must be earned.Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund3, In North Carolina, a state supreme court justice is attacked as sid[ing] with child predators. In Illinois, plaintiffs lawyers spend millions in an effort to unseat a justice who is hearing their appeal of a multi-billion dollar verdict. The above two posts make it completely clear that it would be very dangerous to elect judges as politicians are elected. The Diane Rehm Show discusses how judicial elections and appointment processes impact fairness in state courts. Liberals, on the other hand, favor judges like Justice Ginsburg or Sotomayor, who are willing to expand the language of the Constitution to "create" civil rights that are not mentioned in the Constitution but which are clearly "meant" to be there. In the words of the late California Supreme Court Justice Otto Kaus, deciding controversial cases when you know you will be facing an election is like finding a crocodile in your bathtub when you go in to shave in the morning. However, Goelzhausers discussion illustrates that some states allow for modest inclusion of public views on potential nominees. Proponents of Nevada's system of electing judges have argued that competitive election of judges is the most democratic way of ensuring that judges remain accountable to the people. Would electing judges to a single fixed term better promote judicial independence and public confidence? 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. FRONTLINE is a registered trademark of WGBH Educational Foundation. . Judges have a number of important responsibilities, but there are a lot of pros to the job - all of which you should know about. Several of the most serious threats to equal justice stem from the growing politicization of judicial elections. 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. Judges are subject to retention elections for six-year terms. Apr 04, 1996 at 12:00 am. . 12. 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. The Pros and Cons of Electing Judges The 2020 election year is well underway, which means you've probably been considering where to cast your vote. 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. 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. 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. Pros Cons Judges who are appointed are more likely to be highly qualified . Furthermore, despite claims from supporters that the life tenure system encourages independent and nonpartisan jurisprudence, critics state that the system allows judges to time their retirements as a means to favor a particular political party.9 The administration of George W. Bush saw the retirement of two justices from the Supreme Courts conservative wing, Chief Justice William H. Rehnquist and Justice Sandra Day OConnor, who were succeeded by the like-minded John G. Roberts Jr. and Samuel A. Alito Jr., respectively. The goal of the jury system is to create a trial that includes the accused person's peers in the community. 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. See Kathleen L. Barber, Ohio Judicial ElectionsNonpartisan Premises with Partisan Results, 32 Ohio St. L.J. Rather than examining the constituents of state electing judges directly, we can instead shift our attention to how the majority of states react to merit selection. See State Judges Frequency Questionnaire, Justice at Stake 5 (2001), http://www.justiceatstake.org/media/cms/JASJudgesSurveyResults_EA8838C0504A5.pdf. In theory, these judges would be the best equipped to deal with the complicated questions of justice that judges see every day. He continues to traverse the merit selection process with an analysis of factors that influence commission nomination and the governors ultimate appointment. 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. 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). See Rebekkah Stuteville, Judicial Selection in the State of Missouri: Continuing Controversies, 2 Mo. With only a small set of values allowed, only those values will be used to make judicial decisions, which stagnates innovation in the law and prevents society from progressing. What are the pros and cons of being a probation officer. 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. More attention needs to be paid to protecting judges from the crocodile in the bathtubthe effect job security can have on decision-making in high-salience cases. If you have a non-political body set up to recommend potential appointees (and you let the governor pick which one(s) to actually appoint) then the potential appointees will be selected on legal expertise, not for political reasons. While judicial rulings have always beenand should befair game for criticism, courts are not meant to be governed by majority preferences. The founders, with their fears of mob rule, saw that the early days of the United States selected its judges through appointments made at the behest of governors or state legislatures. Each has its advantages and disadvantages. Article III judges have life tenure. A nominating committee comprised of both lawyers and nonlawyers presents the governor with a list of nominees, from which the governor selects an appointee. As seen over the course of the past century, changes regarding civil liberties, reproductive rights, and religious freedoms have been secured through precedents established by judicial decisions. 1. | Website designed by Addicott Web. Judicature Socy, Judicial Selection in the States: Appellate and General Jurisdiction Courts (2013). 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. Judicial Selection in the States: Ohio, Natl Ctr. in Am. 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. 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. Funding for FRONTLINE is provided through the support of PBS viewers and by the Corporation for Public Broadcasting. Chapter 2 provides a vivid picture of commission deliberations during the vacancy stage. 7. 2. Those who oppose merit selection argue it is the right of citizens to vote for all office-holders, including judges, and that politics is still pervasive in the nominating process, but is more difficult to monitor. Democrats described the move as a power grab. The impact of this change is yet to be seen; however, Goelzhausers discussion in Judicial Merit Selection: Institutional Design and Performance for State Courts provides a much-needed theoretical and empirical lens through which to examine the motivations and potential consequences of such institutional adjustments. See, e.g., Joanna Shepherd, Justice at Risk (2013), available at http://www.acslaw.org/ACS%20Justice%20at%20Risk%20(FINAL)%206_10_13.pdf. 3. Advocates for the life tenure system believe it encourages judicial independence and decreases the likelihood of partisan influences. As far as I am concerned, there are a lot of pros and really no cons that I think are valid concerns. 8. Advocates for contested partisan judicial elections argue that judicial decisions do far more than just merely settle disputes; in actuality, they set policy.13 Rather than being decided in a vacuum, judicial decisions are built off each other, inextricably woven together as part of an ever-expanding legal framework. 19. 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. The initial term of office is one years. 265, 27475 (2008). 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. There are of course valid reasons for withholding certain types of information related to judicial applications, given privacy concerns. . 4, 54). Studies of the U.S. government study more individuals than parties. 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. 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. Sandra Day grew up on a large family ranch near Duncan, Arizona. . DOWNERS GROVE I agree that something should be done to improve the judicial selection . 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. 14. Goelzhauser offers useful and practical suggestions for ways in which states can facilitate increased transparency, such as anonymizing applicant data. Lower level trial judges should thereafter be appointed to the upper level trial bench based on their experience and merit rather than from elected or appointed party politics. 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