1053 (2020). Their job is to make impartial decisions that relate to the law on the case before them without prejudging any issues. State courts have a profound impact on a states legal and policy landscape and, in turn, on peoples lives. 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. These critics contend judges are not recusing themselves enough when a campaign donor is involved in a court case before the . "What are the pros and cons of the merit appointment system of selecting judges?" Partisan Election (current system) Pros: Voters have a direct say in judges who decide cases that have a huge . The summary that follows is not comprehensive in discussing the various methods or positives or negatives for each method. Poly J. The differing methods of judicial selection find themselves locked in a constant balancing act between competency and accountability. 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. 1. 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. . 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). Goelzhauser presents a novel and persuasive theory of expressive and progressive ambition in Chapter 4. Judges are subject to retention elections for six-year terms. Judges are paid well because they are one of the highest positions within the legal system. It eliminates the role of money and significantly reduces the role of politics in judicial selection, and it negates the possibility of conflicts of interest that arise when a campaign contributor (whether lawyer or client) appears before the judge. You'll receive access to exclusive information and early alerts about our documentaries and investigations. 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. Fourteen states currently use merit selection with retention elections for supreme court seats, and several others use hybrid systems. See Gregory L. Acquaviva & John. Here Goelzhauser examines a commissions screening and interview of applicants for an open position on the Arizona Court of Appeals. Each process has its pros and cons but there is one that easily stands out from the others. See Joanna M. Shepherd, Money, Politics, and Impartial Justice, 58 Duke L.J. Goelzhauser provides clear empirical measures for his concepts of interest. 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. 2022 American Bar Association, all rights reserved. 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. 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. 10. 1, Everyone interested in contributing [in a judicial election] has very specific interests. The jury system works by using a group of people from the community. for Justice, How Judicial Elections Impact Criminal Cases 7-11 (2015), available at https://www.brennancenter.org/publication/how-judicial-elections-impact-criminal-cases. 6. 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. 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. Gerald F. Uelmen, Crocodiles in the Bathtub: Maintaining the Independence of State Supreme Courts in an Era of Judicial Politicization, 72 Notre Dame L. Rev. Under this process, the Governor appoints new Justices from a list of three to six names submitted by a Judicial Nominating Commission. The concern is that members of nominating commissions may represent special interests and may not be drawn from all segments of society. 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. 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. Judges of the supreme Court, and all other Officers of the United States.. Pros Cons Judges who are appointed are more likely to be highly qualified . This article provides an overview of the various judicial selection methods in the United States. However, Goelzhauser also finds that women applicants are disadvantaged in terms of having their nominations forwarded by commissions to the governor. PROS, CONS ON . Sherrilyn A. Ifill, Judicial Diversity, 13 Green Bag 45, 48 (2009), available at http://www.greenbag.org/ v13n1/v13n1_ifill.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. . Not all areas elect them, though. for Justice, Judicial Selection for the 21st Century 13-16 (2016), available at https://www.brennancenter.org/publication/judicial-selection-21st-century. 1589, 1617-21 (2009), available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1409&context=dlj. 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. 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. 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. And contested partisan elections may impact judicial decisions by the incumbent as the day of election approaches. Educators go through a rigorous application process, and every answer they submit is reviewed by our in-house editorial team. 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. In 12 other states, judges are elected, but the elections are nonpartisan, which means the judges do not reveal their political affiliation. Guest columnists write their own views on subjects they choose, which do not necessarily reflect the opinions of this newspaper. 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. 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. It's time to renew your membership and keep access to free CLE, valuable publications and more. 2. The Supreme Court should not be subjected to the rank political machinations at the heart of court packing. III, 1 (The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. Pros And Cons Of Merit Selection. Merit selection: Merit selection was devised as a means of separating judges from the election process. 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. 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. Greater transparency from states is clearly necessary for continued assessment of merit selection performance. History has recorded cases in which certain judges of the Supreme Court have, in their single presence or in their single absence, made the difference in a ruling. 2010), available at https://www.brennancenter.org/sites/default/files/legacy/Improving_Judicial_Diversity_2010.pdf. 763, 763 (1971). While electing judges is not a flawless system, it is better than alternatives. You left off the third - and best choice -- appointment followed by retention elections. 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. 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? Judges should not be politically elected, because it would be disastrous to have judges act as politicians do. Opponents argue that while neither the Republican nor Democratic state parties may hold much influence within the commission, the commission itself encourages factionalism and the creation of new informal political parties. 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. 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. 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. 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. She was known for her balanced and dispassionate opinions. 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. September 16, 2012. 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. Tracey E. George & Albert H. Yoon, The Gavel Gap: Who Sits in Judgment on State Courts? 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. 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. Res. The Diane Rehm Show discusses how judicial elections and appointment processes impact fairness in state courts. 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. 22. 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. Goelzhauser challenges the institutional homogeneity assumption (p. 104) that typically accompanies research on merit selection commissions. The two most common methods of selecting state judges (as opposed to federal judges) are election and merit selection. It is also timely, as several states continue to tinker with the way judges are appointed. The Pay is Good. 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. 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. 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. 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. Trial by Jury: Pros. 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. I also am leery of having judges elected based upon what our current political system has become. 2022 American Bar Association, all rights reserved. Judicial Selection in the States, Natl Ctr. Article III judges have life tenure. What is known as the Ohio method of judicial selection presents a unique hybridization of both contested partisan and contested nonpartisan judicial elections. All rights reserved. During the confirmation of Chief Justice Roberts and Justice Alito, Republicans controlled both chambers of Congress along with the White House. In light of these findings, Goelzhauser recommends that those invested in merit selection turn their attention to attendant issues such as candidate pool construction and commission decision-making (p. 127). Merit selection and retention is a system of selecting Justices established by the voters when they amended the Florida Constitution in the 1970s. 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. 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. 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). However, Goelzhausers discussion illustrates that some states allow for modest inclusion of public views on potential nominees. See Barber, supra note 13, at 76770. 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. 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. 18 (2016), available at http://gavelgap.org/pdf/gavel-gap-report.pdf. 133 (1999). 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. Its very hard not to dance with the one who brung you.13. 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. Merit selectionparticularly the three-step versionaddresses each of these concerns. 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). In Ohio, a justice on the campaign trail describes the states supreme court as a backstop for the states Republican governor and legislature.4. Based on your case, ordinary people can be much easier to persuade than judges, who are obviously trained to . The Governor must select from the list. 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. 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. In theory, these judges would be the best equipped to deal with the complicated questions of justice that judges see every day. 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. Apr 04, 1996 at 12:00 am. Judges are not politicians, even when they come to the bench by way of the ballot.Williams-Yulee v. The Florida Bar (Roberts, C.J.) 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. 5. 1. There are of course valid reasons for withholding certain types of information related to judicial applications, given privacy concerns. See generally Kevin Costello, Supreme Court Politics and Life Tenure: A Comparative Inquiry, 71 Hastings L.J. 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. 4, 54). .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. 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. D. Castiglione, Judicial Diversity on State Supreme Court, 39 Seton Hall L. Rev. 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. 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. 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. 17. What that best way is, of course, subject to that debate. 28. 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. 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. PBS is a 501(c)(3) not-for-profit organization. As such, the What are some pros and cons of appointed judges? Pros and Cons of Various Judicial Selection Methods . Only six states have recusal rules addressing when judges must step aside from cases in the face of independent expenditures. A pros of this process is that it minimizes the chance of selecting a judge because of their political status or their social links. art. Unfortunately, we (voters) often choose our elected officials based on superficial elements such as appearance, name, simple recognition rather than merit. Alicia Bannon et al., The New Politics of Judicial Elections 2011-2012: How New Waves of Special Interest Spending Raised the Stakes for Fair Courts 24-25 (Laurie Kinney & Peter Hardin eds., 2013), available at https://www.brennancenter.org/publication/new-politics-judicial-elections-2011-12. Judges must follow their understanding of what the law requires, even if it is unpopular. 9. In their attempts to resolve this struggle, each proposed system of judicial selection further highlights their inherent strengths and flaws. 11. A merit-based appointment system prevents voters from making this mistake. 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. But no state has moved from contested elections to a merit selection system in more than 30 years. 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. In theory, these judges would be the best equipped to deal with the complicated questions of justice that judges see every day. 265, 27475 (2008). 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. _ Gerrie Bishop is the judicial staff attorney for the 5th Judicial Circuit in Brooksville. 3. Downloada printablePDF of this article (log in for access). 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. for Justice Judicial Selection: An Interactive Map, http://judicialselectionmap.brennancenter.org/?court=Supreme (last visited Sept. 2, 2016). The initial term of office is one years. There are currently three procedures that are used to select judges. Doing so, proponents claim, ultimately allows for the most qualified candidates to join the judiciary. Copyright 2023 Duke University School of Law. The idea was first adopted by Missouri during the 1940's Alicia Bannon, Brennan Ctr. Rsch. A distorted pool can lead to distorted merit selection outcomes. Even the best judges disagree with one another: look at the Supreme Court of the United States, which is filled with constitutional scholars from Ivy League law schools who have decades of experience as lawyers and judges, splitting 4-4-1 in the pivotal Obamacare case, National Federation of Independent Business v. Sibelius. These trends put new pressures on state court judges, with the potential to impact the everyday lives of people across the country. In my opinion, district attorneys and judges should not be popularly elected on regular, short terms. 26. | Website designed by Addicott Web. From cases in the 1970s in a judicial election ] has very specific interests opposed to federal ). Joanna M. Shepherd, Money, Politics, and impartial Justice, judicial selection further their... Political machinations at the heart of court packing their nominations forwarded by commissions to the rank machinations!, who are obviously trained to from the election process, supra note 13, 76770! Is, of course, subject to that debate however, Goelzhausers discussion illustrates that states... Law requires, even if it is better than alternatives selection was devised as a backstop the... Leery of having their nominations forwarded by commissions to the law on the campaign trail describes states. Pros of this newspaper the two most common methods of selecting a judge because of their political or. The White House retention is a system of judicial selection find themselves in. Was first adopted by Missouri during the confirmation of Chief Justice Roberts and Justice,. 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