Elections make judges more democratically accountable David Dewold. A study of the Nevada Supreme Court found that in 60 percent of civil cases decided in 2008-09, at least one of the litigants, attorneys, or firms involved in the case had contributed to the campaign of at least one justice.10 Weak recusal rules mean that judges face few barriers in hearing cases involving major financial supporters, particularly when that support takes the form of independent expenditures, which are less regulated. List of the Pros of the Jury System. 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. 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. I would fear that a judge that is elected would owe a debt to his political supporters. Doing so, proponents claim, ultimately allows for the most qualified candidates to join the judiciary. At the time of the drafting of the Arizona Constitution, the Progressive Party and movement was very influential in American politics. .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. 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. In Minnesota, North Dakota, and Georgia, for example, all current supreme court justices were initially appointed to the bench. Applying to a merit selection judicial vacancy would seem to be less costly than entering an electoral contest; however, as Goelzhauser notes, the decision to apply for a judicial vacancy is not necessarily cost-free. 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. However, Goelzhauser also finds that women applicants are disadvantaged in terms of having their nominations forwarded by commissions to the governor. 579, 580 (2005). The summary that follows is not comprehensive in discussing the various methods or positives or negatives for each method. The two most common methods of selecting state judges (as opposed to federal judges) are election and merit selection. FLORIDA: Judges for the supreme court and district courts of appeal are chosen through a merit selection involving a nominating commission. 623, 665-66 (2009), available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1386&context=dlj; Joanna M. Shepherd, Are Appointed Judges Strategic Too?, 58 Duke L.J. The second set of proposals has focused on judicial selection reform, typically urging states to replace contested elections with a merit selection system. There are currently three procedures that are used to select judges. 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). Ideally, being able to elect judges seems like a fair concept. for Justice Judicial Selection: An Interactive Map, http://judicialselectionmap.brennancenter.org/?court=Supreme (last visited Sept. 2, 2016). There are of course valid reasons for withholding certain types of information related to judicial applications, given privacy concerns. 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. 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. 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. Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. In my opinion, district attorneys and judges should not be popularly elected on regular, short terms. Each has its advantages and disadvantages. David E. Pozen, The Irony of Judicial Elections, 108 Colum. Apr 04, 1996 at 12:00 am. In the words of Richard Neely, a retired chief justice of the West Virginia Supreme Court of Appeals, Its pretty hard in big-money races not to take care of your friends. They can't. And the result is that some inexperienced and unqualified people make decisions that affect our lives. of the U.S. Courts at 8 (of 8), https://www.uscourts.gov/sites/default/files/allauth.pdf (last visited June 6, 2021). Their knowledge of the law and how it can be applied to particular circumstances would allow them to resolve disputes in ways that are objectively correct. In fact, increased transparency for information related to merit selection processes is Goelzhausers first design recommendation (p. 132). Jed Handelsman Shugerman, The Peoples Courts 7 (2012). Our summaries and analyses are written by experts, and your questions are answered by real teachers. 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. class="algoSlug_icon" data-priority="2">Web. for Justice, Improving Judicial Diversity 4 (2d ed. His discussion of the use of judicial selection in a variety of specifications at the federal level (i.e., for federal magistrate judges) and internationally illustrates that American states are not the only laboratories for institutional experimentation with merit selection. 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. Any alternative system of choosing judges will have its own advantages and disadvantages, and may advance or impede important values related to the selection of judgesincluding judicial independence, judicial accountability and democratic legitimacy, judicial quality, public confidence in the courts, and diversity on the bench.27 There are important empirical questions about the likely impact of different systems on these values. As Goelzhauser explains, existing scholarship illuminates the way in which merit selection influences judicial outcomes (p. 4); however, there is much we do not know about the process of merit selection. Thus, the question is not only how to best insulate judges from political forces, but also which political forcesincluding the political branches, special interests, political parties, and majority rulepose the gravest threat to judicial independence. 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. This includes 22 states that use elections for a judges initial term on the bench, and 38 states that use elections for subsequent terms on the bench. 133 (1999). In the end, judicial "merit" can be political as well. 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. While electing judges is not a flawless system, it is better than alternatives. Over the course of 25 years, the commission consistently saw itself divided, with one wing representing small-firm plaintiffs lawyers and criminal defense attorneys and the other wing representing large-firm civil defense attorneys.25 And for merit systems where the governor selects the individual from names submitted by the commission, partisan politics undoubtedly are at play. What is the difference between unitary and federal systems? Web Site Copyright 1995-2023 WGBH Educational Foundation. 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. 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. 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. Iowa Governor Kim Reynolds recently signed legislation that would increase her appointment power over the state's 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. You left off the third - and best choice -- appointment followed by retention elections. FRONTLINE is a registered trademark of WGBH Educational Foundation. A merit selection/retention election approach could conceivably be reserved for statewide races and for urban counties with large populations. Before presenting his analyses, Goelzhauser provides a brief overview of the history of judicial selection in the states in Chapter 1. Variables such as longer length of judicial experience (up to a point) and receiving professional honors increase the probability of commission nomination. MERIT SELECTION. 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. Bolch Judicial Institute An important first step, however, is to move past the debate over elections vs. merit selectionlooking at how judicial selection is currently structured in the states, and what we know about how various structures impact key values. 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). There are numerous ways of thinking about justiceso many that there is an entire field of thought for it, called jurisprudence. See Brennan Ctr. After implementing the merit selection plan, Missouri saw the rise of a two-party system within its nominating commission. 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