Most proposals fall into two categories. He served as an extern for Judge Samuel A. Thumma of the Arizona Court of Appeals during the spring and summer of 2021. While major political parties have been shut out of the merit selection system, the public is still allowed and encouraged to participate, voicing their opinions on judges when they are up for retention elections. One particularly interesting aspect of the narrative in Chapter 2 involves Goelzhausers discussion of the public comment period during the commissions screening of applicants (p. 26). (Mar. The judge then . Proponents also argue that the apolitical nature of the nominating commission ensures that party politics are effectively eliminated, or at least significantly diminished, from the decision. 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. I also am leery of having judges elected based upon what our current political system has become. Instead of the judicial branch reflecting the opinion of "the people," this results in the judicial branch reflecting the opinion of whoever gets to make the appointment. 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. Prac. Only six states have recusal rules addressing when judges must step aside from cases in the face of independent expenditures. Those who support electing judges indicate that the benefits include allowing voters the opportunity to provide accountability through self-government by the voters, awareness of the political preferences of judges to the voters, and more public control of a judicial system that is dealing with aggressive lawsuits, such as the recent tobacco and ongoing gun cases. "What are the pros and cons of the merit appointment system of selecting judges?" Merit selection: Merit selection was devised as a means of separating judges from the election process. See John F. Kowal, Brennan Ctr. for Justice Judicial Selection: An Interactive Map, http://judicialselectionmap.brennancenter.org/?court=Supreme (last visited Sept. 2, 2016). 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. A criticism unique to merit selection is that its claim of eliminating party politics from selecting judicial candidates is false. For example, consider the right to privacy, which is never mentioned in the Constitution but was "created" from the values of several other amendments. In many states today, judicial selection is not working. Goelzhauser provides clear empirical measures for his concepts of interest. 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. Judicial Selection in the States: Ohio, Natl Ctr. . At the time of the drafting of the Arizona Constitution, the Progressive Party and movement was very influential in American politics. . Res. 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. The Governor must select from the list. 10. Chapter 2 provides a vivid picture of commission deliberations during the vacancy stage. Pros and Cons of Various Judicial Selection Methods . Trial by Jury: Pros. For example, can nominating commissions be structured in a way that more effectively promotes democratic legitimacy and diversity? 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. Proponents add that elections affirm the electoral beliefs of candidates who present themselves for judicial positions. Copyright 2023 Duke University School of Law. 623, 665-66 (2009), available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1386&context=dlj; Joanna M. Shepherd, Are Appointed Judges Strategic Too?, 58 Duke L.J. 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. In which areas do you think people's rights and liberties are at risk of government intrusion? Moving past existing debates opens up the possibility of new selection models better suited to addressing the challenges facing state courts today. With a trial by jury, you can use emotional arguments to your advantage, as jurors are more susceptible to being influenced by the personal appeal of an argument or testimony. 11. Pros Cons Judges who are appointed are more likely to be highly qualified . 10. During the confirmation of Chief Justice Roberts and Justice Alito, Republicans controlled both chambers of Congress along with the White House. Depending on where you live, you might even be electing judges this year. 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. 5. These trends put new pressures on state court judges, with the potential to impact the everyday lives of people across the country. 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 such, the What are some pros and cons of appointed judges? 18 (2016), available at http://gavelgap.org/pdf/gavel-gap-report.pdf. MERIT SELECTION. 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. The substantial variation that accompanies constitutional and statutory design of merit selection systems also receives scant attention from scholars. There are of course valid reasons for withholding certain types of information related to judicial applications, given privacy concerns. Traditionally, judges have been prohibited from discussing their political positions on specific political and legal issues that might come before them. 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. 2022 American Bar Association, all rights reserved. These findings would seem to bode well for those who champion merit selections ability to ensure that quality jurists are nominated and appointed. Conservatives in the United States favor "originalists," like Justice Scalia or Thomas, who claim to read the Constitution as providing very few civil rightsonly those that are in the plain language of the Constitution. The views expressed are solely those of the author. 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. 7. 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. 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. 9. Tracey E. George & Albert H. Yoon, The Gavel Gap: Who Sits in Judgment on State Courts? The concern is that members of nominating commissions may represent special interests and may not be drawn from all segments of society. Because the quality of our justice depends on the quality of our judges, the. 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. Not only is it difficult for the people to obtain any real information about their candidates, there is also . Thirty-eight states use elections as part of their selection process at the supreme court level. 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. Merit selection systems typically call for the use of retention elections, which have become increasingly high-cost and politicized and put troubling pressures on judges deciding controversial cases. 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). Rather than glad-handing politicians to secure an appointment, the aspiring judge must appeal to the people he hopes to serve. 1. 13 (2008). 579, 580 (2005). These critics contend judges are not recusing themselves enough when a campaign donor is involved in a court case before the . The jury system works by using a group of people from the community. As Ted Olson, the former Solicitor General and a prominent litigator, observed: The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today.11, These conflicts may also extend beyond appearances. 11. In response to his public records requests for information such as lists of applicants by vacancy and lists of commission nominees, he notes, most states reported discarding the relevant information or having laws exempting [the lists] from disclosure (p. 57). 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. . 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. 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. However, any judicial appointment system is rife with cons as well. 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. 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. 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. 2022 American Bar Association, all rights reserved. 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. FLORIDA: Judges for the supreme court and district courts of appeal are chosen through a merit selection involving a nominating commission. 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. 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. 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. But there is far more agreement on the problems associated with judicial elections than on potential reforms. The above two posts make it completely clear that it would be very dangerous to elect judges as politicians are elected. in Am. Election: In nine states, judges run as members of a political party. Their knowledge of the law and how it can be applied to particular circumstances would allow them to resolve disputes in ways that are objectively correct. Advocates for the life tenure system believe it encourages judicial independence and decreases the likelihood of partisan influences. 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. But there is growing evidence that money not only helps shape the ideological composition of courts but also puts direct pressure on the decisions judges make. . Specifically, attorneys who are ideologically congruent with the appointing governor are more likely to apply for vacant judgeships (p. 87). What that best way is, of course, subject to that debate. Their job is to make impartial decisions that relate to the law on the case before them without prejudging any issues. Greater transparency from states is clearly necessary for continued assessment of merit selection performance. Q. 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. 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). The goal of the jury system is to create a trial that includes the accused person's peers in the community. 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. By Andrew J. Clark. 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. 24. Merit selection advocates claim that it will get politics out of the process and focus only on the applicant's credentials. 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). 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. 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. 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? 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. 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. 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. Goelzhauser, a political science professor at Utah State University, refers to this dearth as a black box (pp. 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. 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. Guest columnists write their own views on subjects they choose, which do not necessarily reflect the opinions of this newspaper. 800 Words4 Pages. While a handful of states moved from partisan to nonpartisan contested elections over the past decade, few states have adopted major changes in how they choose judges since the 1980s, and recent changes have not reflected any consistent trends.25, Even more importantly, merit selection raises its own problems. | 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. This potentially means that any "merit-based" system could be used to cover up politically driven judicial appointments from scrutiny. 20. Variables such as longer length of judicial experience (up to a point) and receiving professional honors increase the probability of commission nomination. Goelzhauser notes, All the speakers were attorneys or judges who knew the applicants in a professional capacity, and comments were uniformly positive (p. 27). 25. However, I do not think that the voters are the ones who should decide how to interpret the laws. Hist. Article III judges have life tenure. Both parties present a field candidate and the voters decide which to choose; however, this system is flawed. By continuing to use this website, you consent to Duke University's usage of cookies and similar technologies, in accordance with the Duke Privacy Statement. She received undergraduate and law degrees from Stanford University. 1, Everyone interested in contributing [in a judicial election] has very specific interests. Latest answer posted December 11, 2020 at 11:00:01 AM. . Jurors have more compassion than judges. James Sample et al., The New Politics of Judicial Elections 2000-2009: Decade of Change 4 (Charles Hall ed., 2010), available at http://www.brennancenter.org/publication/new-politicsjudicial-elections-2000-2009-decade-change. There are also unanswered questions about how nominating commissions function in practiceparticularly whether some committees have been subject to capture, either by special interests or the political branches, in ways that may undermine their legitimacy or effectiveness. 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. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. However, Goelzhausers discussion illustrates that some states allow for modest inclusion of public views on potential nominees. 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. 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. Up politically driven judicial appointments from scrutiny it difficult for the supreme court 2 ( 2010 ), available http! Candidates, there is also our judges, the Progressive party and movement was influential! Illustrates that some states allow for modest inclusion of public views on subjects they choose which... From discussing their political positions on specific political and legal issues that might come before them who should how... Judges from the election process interests and may not be drawn from all segments of society in face... 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The potential to impact the everyday lives of people across the country appointment, the aspiring Judge appeal! The Nevada supreme court 2 ( 2010 ), available at http: //www.judicialselection.us/uploads/documents/AJS_NV_study_FINAL_A3A7D42494729.pdf contend judges not! A. Thumma of the drafting of the Arizona Constitution, the what are some pros cons. Nominating commissions may represent special interests and may not be drawn from all segments of society for judicial.! States is clearly necessary for continued assessment of merit selection was devised as a means of separating judges from community!
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