By continuing to use this website, you consent to Duke University's usage of cookies and similar technologies, in accordance with the Duke Privacy Statement. 26. 21. PUBLISHED BY: 1. In particular, while judicial selection debates are most often framed as a struggle between judicial independence and accountability, these terms obscure more complex questions. 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. Web Site Copyright 1995-2023 WGBH Educational Foundation. 1. 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. 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). Sherrilyn A. Ifill, Judicial Diversity, 13 Green Bag 45, 48 (2009), available at http://www.greenbag.org/ v13n1/v13n1_ifill.pdf. art. But there is growing evidence that money not only helps shape the ideological composition of courts but also puts direct pressure on the decisions judges make. Also known as the Merit Selection Plan, the Missouri Nonpartisan Court Plan is referred to as a merit selection system that sees judicial candidates nominated by a nonpartisan commission who are then presented to the governor (or legislative body) for review and ultimate appointment. What solutions would you impose? Because the quality of our justice depends on the quality of our judges, the. One component of Goelzhausers analysis of whether merit selection works involves examination across three key metrics: judicial quality, judge diversity, and the influence of partisanship. 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. The above two posts make it completely clear that it would be very dangerous to elect judges as politicians are elected. 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). The only con I can see is that this takes some power away from the voters. 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. Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. 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. Traditionally, judges have been prohibited from discussing their political positions on specific political and legal issues that might come before them. Across the country, state courts are facing challenges to their basic fairness and legitimacy, many of which are tied to states systems for choosing judges. 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. FLORIDA: Judges for the supreme court and district courts of appeal are chosen through a merit selection involving a nominating commission. 2010), available at https://www.brennancenter.org/sites/default/files/legacy/Improving_Judicial_Diversity_2010.pdf. 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. Unlike a traditional nonpartisan election, the partisan primary allows for a more curated list of judicial candidates. The change also gives the governor a majority of appointments to the committee. In 12 other states, judges are elected, but the elections are nonpartisan, which means the judges do not reveal their political affiliation. She received undergraduate and law degrees from Stanford University. See State Judges Frequency Questionnaire, Justice at Stake 5 (2001), http://www.justiceatstake.org/media/cms/JASJudgesSurveyResults_EA8838C0504A5.pdf. . Appointed judges then serve for a term of years and are then required to run for retention.23 The system traces back to a voter initiative to implement merit selection passed by the state of Missouri in 1940 and has grown progressively more popular in the states during the latter half of the twentieth century. 13. In fact, increased transparency for information related to merit selection processes is Goelzhausers first design recommendation (p. 132). See Rebekkah Stuteville, Judicial Selection in the State of Missouri: Continuing Controversies, 2 Mo. 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). 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). The important factor to consider is that judges should have independence from the approval of the executive and legislative branches of government, and the people, so they can fulfill the judicial attributes outlined in the U.S. Constitution. Those who oppose merit selection argue it is the right of citizens to vote for all office-holders, including judges, and that politics is still pervasive in the nominating process, but is more difficult to monitor. The chief con with appointing judges is that, paradoxically, it may be just as political as letting regular voters select their judges. . The credentials that are to be examined and compared so as to send. What is the difference between unitary and federal systems? Bolch Judicial Institute 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. 2023. Who are the experts?Our certified Educators are real professors, teachers, and scholars who use their academic expertise to tackle your toughest questions. Goelzhauser presents a novel and persuasive theory of expressive and progressive ambition in Chapter 4. See Matthew J. Streb, Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections 10 (NYU Press 2009). for State Cts., http://www.judicialselection.us/judicial_selection/index.cfm?state=OH. 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. 265, 27475 (2008). What are the advantages and disadvantages of liberalism and radicalism? There probably is no perfect way to select and retain judges, because we don't live in a perfect society. Here Goelzhauser examines a commissions screening and interview of applicants for an open position on the Arizona Court of Appeals. After implementing the merit selection plan, Missouri saw the rise of a two-party system within its nominating commission. Judicature | Bolch Judicial Institute | 210 Science Drive | Durham, NC 27708-0362 | (919) 613-7073 | judicature@law.duke.edu Not all areas elect them, though. 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. One concern expressed about merit selection is the removal of direct public participation in the selection process, as compared to elections (p. 3). Apr 04, 1996 at 12:00 am. If that's a bad thing when it comes to our government representatives, it's a horrible thing for our judges. However, any judicial appointment system is rife with cons as well. 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. 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. This is no easy task. Once a merit-based system is in place, all subsequent judges will have only the traits that allow them to sit on the bench. Judges must follow their understanding of what the law requires, even if it is unpopular. 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. Now with nonpartisan elections, there aren't any real costs but with . 3. However, Goelzhauser also finds that women applicants are disadvantaged in terms of having their nominations forwarded by commissions to the governor. Q. 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). Pros Cons Judges who are appointed are more likely to be highly qualified . 1053 (2020). Electing judges still bring in partisanship. These findings would seem to bode well for those who champion merit selections ability to ensure that quality jurists are nominated and appointed. In the face of mounting evidence that courts capacity to provide basic fairness is at risk in many states, a host of bar associations, scholars, task forces, and legislators have suggested reforms.24 Yet these proposals have both struggled to gain traction and failed to address many of the most troubling aspects of how judicial selection is currently functioning. 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. 579, 640 (2005) (noting Professor Raoul Berger traced the phrase hold their Offices during good Behaviour to the [British] Act of Settlement of 1701 (which protected the independence of English judges by granting them tenure as long as they conduct[ed] themselves well, and provided for termination only through a formal request by the Crown of the two Houses of Parliament) and to earlier English traditions) (citing Raoul Berger, Impeachment of Judges and Good Behavior Tenure, 79 Yale L.J. Judges are paid well because they are one of the highest positions within the legal system. 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). Readers also gain insight into the questions posed by commissioners to candidates during the interview stage (after the commission has narrowed the list of applicants). In theory, these judges would be the best equipped to deal with the complicated questions of justice that judges see every day. Due to the nature of the Senate confirmation process, past nominees have tended to skew more toward the political center as a way to increase the nominees chance of receiving a simple majority of the vote.4 From there, unless their actions result in impeachment and conviction (the most recent removal from the bench being G. Thomas Porteous Jr. of Louisiana under charges of bribery and perjury),5 federal judges are free to decide cases without fear of political retribution. 9. 10. . 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. 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. Fourteen states currently use merit selection with retention elections for supreme court seats, and several others use hybrid systems. 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. 4, 54). 11. See generally Kevin Costello, Supreme Court Politics and Life Tenure: A Comparative Inquiry, 71 Hastings L.J. However, he pointedly notes that serious concerns of transparency accompany merit selection systems (p. 139), concerns that are as important as the other findings produced by Goelzhausers analyses. 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. The decision to run for office entails substantial cost that may dissuade potential candidates. Here are some of the pros and cons of electing judges. A nominating committee comprised of both lawyers and nonlawyers presents the governor with a list of nominees, from which the governor selects an appointee. 8. Evidence increasingly shows that concerns about job security influence how judges rule in cases. Guest columnists write their own views on subjects they choose, which do not necessarily reflect the opinions of this newspaper. Additionally, due to the costs involved, elections discourage many well-qualified attorneys from seeking judicial office, and the merit selection process generally results in a higher number of appointments of minority and female candidates. Both parties present a field candidate and the voters decide which to choose; however, this system is flawed. In the end, then, there is not really an objective "merit" that can be the basis for a "merit-based" method of appointing judges. What are the pros and cons of "professional jurors?". . Recent data from the American Constitution Society shows a troubling gavel gap along race and gender lines: While people of color make up 40 percent of the population, they represent only 20 percent of state judges.17 Women, who make up half the population, are less than a third of all state judges.18 State benches also fail to represent the diversity of the legal profession, with individuals with prosecutorial or corporate backgrounds dominating state (and federal) courts.19, Research suggests that both elective and appointive systems are producing similarly poor outcomes in terms of the diversity of judges.20 Money, old-boy networks, biasesboth explicit and implicitand inadequate pipelines for diverse candidates are all contributing factors. The Governor must select from the list. PROS, CONS ON . These are difficult questionsand areas for further researchbut they highlight that there may be opportunities to truly rethink how states choose their judges and develop models that better respond to todays needs. Thirty-eight states use elections as part of their selection process at the supreme court level. Latest answer posted November 14, 2019 at 7:38:41 PM. Only three statesMassachusetts, New Hampshire, and Rhode Islandhave life tenure (with or without a mandatory retirement age) for judges. 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. 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). 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. 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. American Bar Association The summary that follows is not comprehensive in discussing the various methods or positives or negatives for each method. pros and cons of merit selection of judgeseagles hotel california tour 2022 setlisteagles hotel california tour 2022 setlist As states such as Iowa and Pennsylvania debate their judicial selection systems, whether merit selection works is the key question that motivates Greg Goelzhausers innovative and timely inquiry in Judicial Merit Selection: Institutional Design and Performance for State Courts, the latest addition to Goelzhausers extensive research on state judicial merit selection. Judges are subject to retention elections for six-year terms. Advocates of the merit system indicate that a nominating committee that includes lawyers brings expertise to the selection process, and is an improvement upon an election system where voters are uninformed, or not in a position to evaluate judicial performance. See Brennan Ctr. As far as I am concerned, there are a lot of pros and really no cons that I think are valid concerns. But there is far more agreement on the problems associated with judicial elections than on potential reforms. U.S. Const. 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. 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. 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. Ninety-five percent of all cases are filed in state court, with more than 100 million cases coming before nearly 30,000 state court judges each year. 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. 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.

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