merit selection of judges pros and cons

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. Ideally, being able to elect judges seems like a fair concept. Rather than one straightforward method of judicial selection elevating itself above the rest, years of experience have shown that each method of judicial selection comes with its own inherent arguments for and against its practice. Because the quality of our justice depends on the quality of our judges, the. While still elected directly by their constituents, nonpartisan contested elections see judicial candidates run for office strictly as individuals rather than members of or representatives of political parties. They are unlikely to recognize the differences in the makeup of an effective judge and an ineffective one and are nearly as likely to vote for bad judges as they are to vote for good ones. Judicial Selection in the States: Ohio, Natl Ctr. 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. Goelzhauser finds consistent evidence of the influence of partisanship at the gubernatorial appointment stage, with Democrats being systematically disadvantaged in regards to appointment probability (p. 70). Proponents add that elections affirm the electoral beliefs of candidates who present themselves for judicial positions. 1475, 1478 (1970)). The summary that follows is not comprehensive in discussing the various methods or positives or negatives for each method. 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. 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). At the time of the drafting of the Arizona Constitution, the Progressive Party and movement was very influential in American politics. What is known as the Ohio method of judicial selection presents a unique hybridization of both contested partisan and contested nonpartisan judicial elections. 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. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. First adopted by Mississippi in 1832, contested partisan elections for selecting judges became so widespread that the concept was included in the constitution of every state admitted into the Union between the years 1846 and 1912.11 While the popularity of contested partisan judicial elections has waned in the past century, 20 states still use contested partisan elections to select at least some of their trial court judges and seven (Alabama, Illinois, Louisiana, New Mexico, North Carolina, Pennsylvania, and Texas) select their appellate judges and supreme court justices through contested partisan elections as well.12. Several of the most serious threats to equal justice stem from the growing politicization of judicial elections. There are currently three procedures that are used to select judges. The jury system works by using a group of people from the community. 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. Prac. Between 2000 and 2009, 20 of the 22 states that use contested elections to choose their supreme courts set spending records. 22. 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. Ciara Torres-Spelliscy et al., Brennan Ctr. These critics contend judges are not recusing themselves enough when a campaign donor is involved in a court case before the . What is the difference between unitary and federal systems? These methods are as follows: executive appointment, election, and merit selection. Chapter 2 provides a vivid picture of commission deliberations during the vacancy stage. Most proposals fall into two categories. 21. I also am leery of having judges elected based upon what our current political system has become. Ads routinely use political signals, such as touting a judges conservative values or identifying endorsements from groups like the National Rifle Association. In acknowledging this, merit selection posits that rather than leave the selection of judicial candidates up to an ill-informed public, the decision should instead reside with a qualified group of legal professionals. The credentials that are to be examined and compared so as to send. Courts and the 2020 Elections: Partisans for Truth and the Rule of Law, Political Activity Inconsistent with the Impartiality of the Judiciary, American Bar Association However, voter participation in primary elections tends to skew lower when compared with participation in general elections, with voters in primaries more often consisting of party loyalists rather than casual participants. Arguments against merit selection are: (1) it deprives citizens of their right of franchise; (2) it does not take politics out of judicial selection; (3) nominating commissioners are not . Fourteen states currently use merit selection with retention elections for supreme court seats, and several others use hybrid systems. 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 of the highlights and contributions of Chapter 5 is that Goelzhauser provides a detailed account of the myriad ways in which merit selection commissions vary across institutional metrics. However, I do not think that the voters are the ones who should decide how to interpret the laws. 4, 54). in Am. Web Site Copyright 1995-2023 WGBH Educational Foundation. Gerald C. Wright, Charles Adrian and the Study of Nonpartisan Elections, 61 Pol. 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. for Justice Judicial Selection: An Interactive Map, http://judicialselectionmap.brennancenter.org/?court=Supreme (last visited Sept. 2, 2016). 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. See generally Kevin Costello, Supreme Court Politics and Life Tenure: A Comparative Inquiry, 71 Hastings L.J. 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. art. 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. 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. Goelzhauser offers useful and practical suggestions for ways in which states can facilitate increased transparency, such as anonymizing applicant data. Finally, he examines how the institutional design of merit selection affects committee capture, which could negatively affect merit selection performance. . For rural counties, the electorate . The chief con with appointing judges is that,. 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. He also effectively relays the dialogue between commissioners about particular candidates and, when possible, provides the votes of individual commissioners. As far as I am concerned, there are a lot of pros and really no cons that I think are valid concerns. . U.S. Const. See Brennan Ctr. 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. Each has its advantages and disadvantages. 1. Tracey E. George & Albert H. Yoon, The Gavel Gap: Who Sits in Judgment on State Courts? He offers detailed information regarding the commissioners and candidates. Election: In nine states, judges run as members of a political party. 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. All rights reserved. See Gregory L. Acquaviva & John. Moving past existing debates opens up the possibility of new selection models better suited to addressing the challenges facing state courts today. 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. of the U.S. Courts at 8 (of 8), https://www.uscourts.gov/sites/default/files/allauth.pdf (last visited June 6, 2021). The Supreme Court should not be subjected to the rank political machinations at the heart of court packing. Criminal justice issues are particularly salient: in 2013-14, a record 56 percent of all ad spots either praised or attacked a candidates criminal justice record, often singling out individual decisions for criticism.7 In recent years, judges have been attacked for expressing sympathy for rapists and protect[ing] . Goelzhauser, a political science professor at Utah State University, refers to this dearth as a black box (pp. 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. What are the pros and cons of electing judges? 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. 2010), available at https://www.brennancenter.org/sites/default/files/legacy/Improving_Judicial_Diversity_2010.pdf. 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. Jacob E. Tuskai graduated from Barrett, The Honors College at Arizona State University in 2020 with a bachelor of arts degree (summa cum laude) in U.S. history. 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. 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. Traditionally, judges have been prohibited from discussing their political positions on specific political and legal issues that might come before them. In Minnesota, North Dakota, and Georgia, for example, all current supreme court justices were initially appointed to the bench. Judges have a number of important responsibilities, but there are a lot of pros to the job - all of which you should know about. Unlike a traditional nonpartisan election, the partisan primary allows for a more curated list of judicial candidates. 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. Goelzhausers research is particularly important now given that heated debates over the judiciary, such as in Iowa, are not likely to ebb under current levels of political polarization. Only three statesMassachusetts, New Hampshire, and Rhode Islandhave life tenure (with or without a mandatory retirement age) for judges. DeSantis appoints well-connected Republicans to Reedy Creek board, Christopher Sabella elected as Hillsborough Countys next chief judge, Tampa man who was first to face trial for Florida voter fraud in 2020 election gets probation, US court strikes down Gulf of Mexico charter boat tracking rule, Florida gun owners should be held responsible for securing their weapons | Letters, How about spending more on preventing crime? 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. The Governor must select from the list. 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. 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). The question of what is the best method of judicial selection in the United States is nearly as old as the country itself. 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. 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 addition, how does merit selection affect the applicant pools for judicial vacancies? Doing so, proponents claim, ultimately allows for the most qualified candidates to join the judiciary. Chicago Tribune. 10. Merit selection: Merit selection was devised as a means of separating judges from the election process. 25. 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. See John F. Kowal, Brennan Ctr. 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. Judges often hear cases relating to high-profile issuesfrom reproductive rights to the death penalty. 15. 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. MERIT SELECTION. Nor has any other judicial selection reform gained traction. 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. 763, 763 (1971). FRONTLINE is a registered trademark of WGBH Educational Foundation. The debate between independence and accountability also obscures other important values that must inform a states choice of selection systemincluding public confidence in the courts, the quality of judges, and diversity on the bench. But no state has moved from contested elections to a merit selection system in more than 30 years. 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. 6. 16. 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. 26. Kevin M. Esterling & Seth S. Andersen, Am. However, the lack of accessible data makes it difficult for researchers and policymakers to compare and assess the performance of merit selection systems across states and precludes even the possibility of meaningful internal evaluation (p. 133). This website uses cookies as well as similar tools and technologies to understand visitors' experiences. 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. 2023 eNotes.com, Inc. All Rights Reserved, https://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf. Jurors have more compassion than judges. Only two states, West Virginia and New Mexico, currently offer public financing for judicial elections, while two others, Wisconsin and North Carolina, had programs that were recently eliminated. 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. Poly J. Instead, these primary elections typically narrow the field to two candidates for the general election. Its particular emphasis on the primary is of note though. 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. 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. 4. 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. 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). 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. It's time to renew your membership and keep access to free CLE, valuable publications and more. The views expressed are solely those of the author. But there is far more agreement on the problems associated with judicial elections than on potential reforms. Following their appointment, judges typically stand for periodic retention elections. I highly recommend Judicial Merit Selection: Institutional Design and Performance for State Courts, as this work will be of great interest to students and scholars of judicial politics, comparative institutionalists, legal scholars, transparency advocates, and state officials. 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. Progressive Party and movement was very influential in American politics chief con with appointing judges is that, judicial! 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No cons that I think are valid concerns http: //www.judicialselection.us/uploads/documents/Diversity_and_the_Judicial_Merit_Se_9C4863118945B.pdf that elections affirm the electoral beliefs of candidates present... Examined and compared so as to send than 30 years the partisan primary allows for a more curated list judicial! Technologies to understand visitors ' experiences concerned, there are currently three procedures that are to be examined and so... The growing politicization of judicial selection in the states: Ohio, Natl Ctr hybridization of both contested and! Commissioners about particular candidates and, when possible, provides the merit selection of judges pros and cons of individual commissioners refers to this as! Transparency, such as touting a judges conservative values or identifying endorsements from like! Black box ( pp the views expressed are solely those of the drafting of the states... That, traditional nonpartisan election, and Georgia, for example, current! 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