In concurrence, judges should not be part of the political system, for then they are beholden to someone and may not be impartial as they should. . 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. Now with nonpartisan elections, there aren't any real costs but with . 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). Liberals, on the other hand, favor judges like Justice Ginsburg or Sotomayor, who are willing to expand the language of the Constitution to "create" civil rights that are not mentioned in the Constitution but which are clearly "meant" to be there. 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. Additionally, allowing voters to choose judges, in a way, makes judicial appointment political: voters will vote for judges they agree with, and if popular opinion swings in a way that becomes unconstitutional (an outrageous example would be if, suddenly, the majority of people thought slavery was acceptable again), it may result in numerous judges who thought in the same vein. L. Rev. Pros And Cons Of Merit Selection. 6. 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. After 245 years, the United States has not adopted a single unified method with which to select judges. Here Goelzhauser examines a commissions screening and interview of applicants for an open position on the Arizona Court of Appeals. Several of the most serious threats to equal justice stem from the growing politicization of judicial elections. DOWNERS GROVE I agree that something should be done to improve the judicial selection . 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. 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. 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. These questions are particularly important given that from 2000 through 2016 a plurality of justices to join state supreme courts for the first time did so via merit selection (p. 9). The concern is that members of nominating commissions may represent special interests and may not be drawn from all segments of society. Election: In nine states, judges. Their job is to make impartial decisions that relate to the law on the case before them without prejudging any issues. Copyright 2023 Duke University School of Law. 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. Educators go through a rigorous application process, and every answer they submit is reviewed by our in-house editorial team. The life tenure method of judicial selection is the means for seating Article III judgesjudges exercising judicial power vested by Article III of the U.S. Constitutionin the United States federal courts. 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. 15. However, I do not think that the voters are the ones who should decide how to interpret the laws. 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. 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. Some critics argue elections create political biases which weaken judicial impartiality. 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. By Andrew J. Clark. 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. 1203, 1235-38 (2009) (state courts); Alliance for Justice, Broadening the Bench: Professional Diversity and Judicial Nominations 8-10 (2016) (federal courts), available at http://www.afj.org/wp-content/uploads/2014/11/Professional-Diversity-Report.pdf. As far as I am concerned, there are a lot of pros and really no cons that I think are valid concerns. 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 . 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. Res. Before presenting his analyses, Goelzhauser provides a brief overview of the history of judicial selection in the states in Chapter 1. It is time to reframe the debate, to allow for new conversationand innovationregarding how states choose their judges. However, a recent Supreme Court decision, Republican Party of Minnesota vs. White, affirmed the right of judges to speak on these issues. The two most common methods of selecting state judges (as opposed to federal judges) are election and merit selection. However, any judicial appointment system is rife with cons as well. Voters are predominantly laypeople who live without an extensive knowledge of the law and what it means to be a good judge. See Brennan Ctr. Goelzhauser presents a comprehensive analysis of all state supreme court merit selection appointments between 1942 and 2016 to discern whether institutional design influences the quality and diversity of judicial appointees. 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). Judicial Selection in the States: Ohio, Natl Ctr. Specifically, attorneys who are ideologically congruent with the appointing governor are more likely to apply for vacant judgeships (p. 87). MERIT SELECTION. Yet merit selection as it is commonly structured raises its own problems, from the use of retention elections, which are increasingly costly and politicized, to inadequate processes for recruiting diverse judicial candidates. Recent research suggests, for example, that campaign spending affects judges decisions on the bench.5 Yet other problems cut across selection methods, including a lack of diversity on the bench and evidence that concerns about job security impact judges decisions in controversial cases. for Justice, Judicial Selection for the 21st Century 13-16 (2016), available at https://www.brennancenter.org/publication/judicial-selection-21st-century. In Ohio, a justice on the campaign trail describes the states supreme court as a backstop for the states Republican governor and legislature.4. Finally, he examines how the institutional design of merit selection affects committee capture, which could negatively affect merit selection performance. 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. Advocates for the life tenure system believe it encourages judicial independence and decreases the likelihood of partisan influences. 23. The findings for gender at the commission stage and partisanship at the commission and gubernatorial appointment stages seem to point to merit selections institutional failure to deliver on certain core promises (p. 72). There are currently three procedures that are used to select judges. Press 2018). 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). 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? | 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. 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. A pros of this process is that it minimizes the chance of selecting a judge because of their political status or their social links. 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. 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. The second set of proposals has focused on judicial selection reform, typically urging states to replace contested elections with a merit selection system. Latest answer posted June 18, 2019 at 6:25:00 AM. 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. Latest answer posted December 11, 2020 at 11:00:01 AM. While initially all judicial elections were partisan, as the presence and force of political parties grew, corresponding concerns grew about the undue influence local parties exhibited over the courts. He served as an extern for Judge Samuel A. Thumma of the Arizona Court of Appeals during the spring and summer of 2021. 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. 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). 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: Merit selection was devised as a means of separating judges from the election process. Sandra Day O'Connor was an Associate Justice of the Supreme Court of the United States from 1981 to 2006. With a few exceptions, he generally finds no systematic and consistent relationship between a commissions institutional design and performance. Apr 04, 1996 at 12:00 am. 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. This has been enhanced by the process of running 'road shows' and other outreach events to broaden the spectrum of judges. 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. A criticism unique to merit selection is that its claim of eliminating party politics from selecting judicial candidates is false. Fourteen states currently use merit selection with retention elections for supreme court seats, and several others use hybrid systems. Not only is it difficult for the people to obtain any real information about their candidates, there is also . 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. 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. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. Sorry, we couldn't find what you're looking for. Here are some of the pros and cons of electing judges. 1. 1475, 1478 (1970)). 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. 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. Tracey E. George & Albert H. Yoon, The Gavel Gap: Who Sits in Judgment on State Courts? 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. Merit selection went through a period of broad adoption in the 1960s and 1970s. 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). 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. for Civil Rights Under Law, Answering the Call for a More Diverse Judiciary: A Review of State Judicial Selection Models and Their Impact on Diversity 10 (2005), available at https://www.opensocietyfoundations.org/sites/default/files/answering_20050923.pdf. 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. 133 (1999). 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. 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. This potentially means that any "merit-based" system could be used to cover up politically driven judicial appointments from scrutiny. Considering these values offers new potential paths for reform. Moving past existing debates opens up the possibility of new selection models better suited to addressing the challenges facing state courts today. The only con I can see is that this takes some power away from the voters. Merit selection went through a period of broad adoption in the 1960s and 1970s. 16. 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. Thirty-eight states use elections as part of their selection process at the supreme court level. 2010), available at https://www.brennancenter.org/sites/default/files/legacy/Improving_Judicial_Diversity_2010.pdf. 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. 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. 2022 American Bar Association, all rights reserved. Adam Liptak & Janet Roberts, Campaign Cash Mirrors a High Courts Rulings, N.Y. Times, Oct. 1, 2006, http://www.nytimes.com/2006/10/01/us/01judges.html?pagewanted=all. The Supreme Court should not be subjected to the rank political machinations at the heart of court packing. 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. I would fear that a judge that is elected would owe a debt to his political supporters. In which areas do you think people's rights and liberties are at risk of government intrusion? 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. 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