829, 839 (2016). 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). Judges must follow their understanding of what the law requires, even if it is unpopular. /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. 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. Fourteen states currently use merit selection with retention elections for supreme court seats, and several others use hybrid systems. See Brennan Ctr. 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. The initial term of office is one years. . These findings would seem to bode well for those who champion merit selections ability to ensure that quality jurists are nominated and appointed. 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. Another threat to the fairness of courts is rooted in pressures around the reselection of judges currently on the bencha concern not only in states that use elections, but also in appointment systems. In recent decades, and particularly since 2000, state supreme court elections have become increasingly costly and politicized. 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. 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. 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. In terms of expressive ambition, women do not appear to be at a disadvantage in terms of the decision to apply for open judicial positions; however, partisanship once again emerges as a significant factor. 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. U.S. Const. The fault of any alliance to a political thinking is evidenced in the Supreme Court appointments as presidents appoint judges with whom they will have an alliance of ideology. Latest answer posted December 11, 2020 at 11:00:01 AM. 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. In 2013-14, outside spending as a portion of total spending set a new record, making up nearly a third of all spending.6, Campaigning has likewise been transformed. Assisted appointment, also known as merit selection or the Missouri Plan: A nominating commission reviews the qualifications of judicial candidates and submits a list of names to the governor, who appoints a judge from the list. 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. for Justice, Rethinking Judicial Selection in State Courts 6-7 (2016), available at https://www.brennancenter.org/sites/default/files/publications/Rethinking_Judicial_Selection_State_Courts.pdf. Downloada printablePDF of this article (log in for access). Pros And Cons Of The Texas Judicial System. Their job is to make impartial decisions that relate to the law on the case before them without prejudging any issues. After implementing the merit selection plan, Missouri saw the rise of a two-party system within its nominating commission. 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. The Governor must select from the list. What are the strengths and weakness of the legislative branch? 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. See Philip D. Oliver, Assessing and Addressing the Problems Caused by Life Tenure on the Supreme Court, 13 J. App. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.); see also Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. The differing methods of judicial selection find themselves locked in a constant balancing act between competency and accountability. Judges often hear cases relating to high-profile issuesfrom reproductive rights to the death penalty. U.S. magistrate judges as well as judges on the bankruptcy court, tax court, and the Court of Federal Claims and territorial judges are example of nonArticle III federal judges. 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). Instead, these primary elections typically narrow the field to two candidates for the general election. See Rebekkah Stuteville, Judicial Selection in the State of Missouri: Continuing Controversies, 2 Mo. In theory, these judges would be the best equipped to deal with the complicated questions of justice that judges see every day. 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). Far from it. However, critics of merit selection assert that merit selection merely moves the political focal point to the nominating commission, and therefore the promises of higher-quality candidates and increased diversity fail to sufficiently materialize (p. 3). Moving past existing debates opens up the possibility of new selection models better suited to addressing the challenges facing state courts today. These methods are as follows: executive appointment, election, and merit selection. 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. Nor has any other judicial selection reform gained traction. For example, consider the right to privacy, which is never mentioned in the Constitution but was "created" from the values of several other amendments. 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. 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. You left off the third - and best choice -- appointment followed by retention elections. He also effectively relays the dialogue between commissioners about particular candidates and, when possible, provides the votes of individual commissioners. Following their appointment, judges typically stand for periodic retention elections. 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. D. Castiglione, Judicial Diversity on State Supreme Court, 39 Seton Hall L. Rev. 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. 1, Everyone interested in contributing [in a judicial election] has very specific interests. Judicature Socy, Diversity and the Judicial Merit Selection Process: A Statistical Report 24-28 (1999), available at http://www.judicialselection.us/uploads/documents/Diversity_and_the_Judicial_Merit_Se_9C4863118945B.pdf. Some critics argue elections create political biases which weaken judicial impartiality. See John F. Kowal, Brennan Ctr. See Kathleen L. Barber, Ohio Judicial ElectionsNonpartisan Premises with Partisan Results, 32 Ohio St. L.J. 17. 5. A nominating committee comprised of both lawyers and nonlawyers presents the governor with a list of nominees, from which the governor selects an appointee. Merit selection advocates claim that it will get politics out of the process and focus only on the applicant's credentials. Under this process, the Governor appoints new Justices from a list of three to six names submitted by a Judicial Nominating Commission. 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. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. Trial by Jury: Pros. Judicature Socy, Judicial Selection in the States: Appellate and General Jurisdiction Courts (2013). 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. 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. 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. 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). 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. 7. Goelzhausers work sheds new light on judicial merit selection processes and raises important questions for future researchers. 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. Given its nature, the Ohio method shares many of the strengths and weaknesses of both the contested partisan and the contested nonpartisan judicial election methods. Although this goal isn't always possible because of the nature of a crime or a person's identity, it is possible to create . Merit selection arguably the most effective way to appoint a judge but it also has its pros and cons but the ultimate question is whether or not the retention election is a success or failure in the judicial system. 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. Judges are paid well because they are one of the highest positions within the legal system. There probably is no perfect way to select and retain judges, because we don't live in a perfect society. 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. What that best way is, of course, subject to that debate. (2018). Judges should not be politically elected, because it would be disastrous to have judges act as politicians do. An example of this can be seen during Earl Warrens tenure as chief justice of the U.S. Supreme Court.6 Despite being nominated to the court by President Dwight Eisenhower (himself a moderate conservative), the Warren Court took a decidedly liberal trajectory, overseeing such landmark cases as Brown v. Board of Education (1954), Miranda v. Arizona (1966), and Loving v. Virginia (1967), among others.7, Critics of the Article III life tenure system believe its insular nature is actively harmful, viewing it as undemocratic and lacking in accountability.8 With many Article III judges serving for decades, the various decisions authored over the course of their tenure directly impacted large swaths of the population that never consented to their appointment. 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. MERIT SELECTION. class="algoSlug_icon" data-priority="2">Web. You know its there, and you try not to think about it, but its hard to think about much else while youre shaving.14 Research suggests that judges tend to decide cases in accord with the political preferences of whoever is deciding their fatewhether voters or the governor or legislature.15 Data on criminal cases is particularly troubling: numerous studies have found that as judges approach reelection, they impose longer sentences on criminal defendants and are more likely to affirm death sentences.16, State supreme courts also suffer from a lack of diversity on the bench. However, Goelzhausers discussion illustrates that some states allow for modest inclusion of public views on potential nominees. Additional funding is provided by the Abrams Foundation; the John D. and Catherine T. MacArthur Foundation; Park Foundation; the Heising-Simons Foundation; and the FRONTLINE Journalism Fund with major support from Jon and Jo Ann Hagler on behalf of the Jon L. Hagler Foundation, and additional support from Koo and Patricia Yuen. Upon reading Goelzhausers description, one wonders whether expanded opportunities for public comment could help assuage concerns of transparency and public participation in the merit selection process. One concern expressed about merit selection is the removal of direct public participation in the selection process, as compared to elections (p. 3). Elections make judges more democratically accountable David Dewold. A merit-based appointment system prevents voters from making this mistake. In particular, empirical evidence suggests that reselection pressures pose unique and serious threats to the fairness of courts. PROS, CONS ON . 133 (1999). . Judges are subject to retention elections for six-year terms. There are currently three procedures that are used to select judges. Cts., https://www.uscourts.gov/judges-judgeships/about-federal-judges (last visited June 29, 2021). Questions regarding judicial philosophy, accountability, and favored or disfavored appellate decisions are a few of the queries posed to applicants. 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. Its particular emphasis on the primary is of note though. "What are the pros and cons of the merit appointment system of selecting judges?" 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. 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. 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. 2. In my opinion, district attorneys and judges should not be popularly elected on regular, short terms. Used by the state to select judges for its appellate and trial courts, the Ohio method of judicial selection consists of an initial partisan primary election, followed by a nonpartisan general election.21 Ohio first implemented contested partisan judicial elections in 1851, later moving to nonpartisan judicial elections under its 1911 Nonpartisan Judiciary Act. 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. Using quantitative analyses, Chapter 3 explores why commissions and governors nominate and appoint particular applicants. 3. 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. The appointed judge will subsequently stand for election with no party affiliation, and will be retained if a certain percentage of the vote is received. 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. 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. 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