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. September 16, 2012. In the words of the late California Supreme Court Justice Otto Kaus, deciding controversial cases when you know you will be facing an election is like finding a crocodile in your bathtub when you go in to shave in the morning. The existence of this political pressure drives the list of the pros and cons of having a merit-based appointment system for the judges on the judiciary. 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. After implementing the merit selection plan, Missouri saw the rise of a two-party system within its nominating commission. These are just a few examples of how the selection of state court judges has become increasingly politicized, polarized, and dominated by special interestsparticularly in the 39 states that use elections as part of their system for choosing judges. Off. Considering these values offers new potential paths for reform. See About Federal Judges, U.S. Do some institutional specifications make certain merit selection systems more susceptible to capture, which could affect the systems ability to deliver on things like the appointment of high-quality jurists? 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. for Justice Judicial Selection: An Interactive Map, http://judicialselectionmap.brennancenter.org/?court=Supreme (last visited Sept. 2, 2016). 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. Alicia Bannon, Brennan Ctr. 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. 2010), available at https://www.brennancenter.org/sites/default/files/legacy/Improving_Judicial_Diversity_2010.pdf. 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. A criticism unique to merit selection is that its claim of eliminating party politics from selecting judicial candidates is false. 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. . 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. Today, 33 states along with the District of Columbia use some form of merit selection.24. 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. See Philip D. Oliver, Assessing and Addressing the Problems Caused by Life Tenure on the Supreme Court, 13 J. App. 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. . The second set of proposals has focused on judicial selection reform, typically urging states to replace contested elections with a merit selection system. In addition, how does merit selection affect the applicant pools for judicial vacancies? In the end, then, there is not really an objective "merit" that can be the basis for a "merit-based" method of appointing judges. D. Castiglione, Judicial Diversity on State Supreme Court, 39 Seton Hall L. Rev. Based on your case, ordinary people can be much easier to persuade than judges, who are obviously trained to . Judicial Selection in the States, Natl Ctr. Tracey E. George & Albert H. Yoon, The Gavel Gap: Who Sits in Judgment on State Courts? 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. In theory, these judges would be the best equipped to deal with the complicated questions of justice that judges see every day. 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. Debate will (and should) continue as to the best way for a given jurisdiction to select its judiciary. 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). 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. See Kathleen L. Barber, Ohio Judicial ElectionsNonpartisan Premises with Partisan Results, 32 Ohio St. L.J. Sherrilyn A. Ifill, Judicial Diversity, 13 Green Bag 45, 48 (2009), available at http://www.greenbag.org/ v13n1/v13n1_ifill.pdf. . Election: In nine states, judges run as members of a political party. What are the pros and cons of being a probation officer. 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. As seen over the course of the past century, changes regarding civil liberties, reproductive rights, and religious freedoms have been secured through precedents established by judicial decisions. 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. 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. 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. 14. In just the past few years, state supreme courts, which are the final word on questions of state law, have struck down tort reform legislation in Arkansas, ordered Kansass state legislature to equalize funding for public schools, and declared Connecticuts death penalty law unconstitutional. 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. Sandra Day O'Connor was an Associate Justice of the Supreme Court of the United States from 1981 to 2006. 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. 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. 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. Retention systems often include a merit based appointment system for selecting judges, thus eliminating the politics and uncertainty of judicial selection via contested election. 4. 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). Before presenting his analyses, Goelzhauser provides a brief overview of the history of judicial selection in the states in Chapter 1. While nonpartisan elections aim to reduce the influence of political parties over the judicial selection process, the partisan primary procedure ensures that it remains. See Monika L. McDermott, Race and Gender Cues in Low-Information Elections, 51 Pol. 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. 6. Surprisingly, relatively little attention has been paid to reselection as such, and how these unique pressures might be mitigated, regardless of how a judge initially made it onto the bench. 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. The fault of any alliance to a political thinking is evidenced in the Supreme Court appointments as presidents appoint judges with whom they will have an alliance of ideology. Once a merit-based system is in place, all subsequent judges will have only the traits that allow them to sit on the bench. The decision to run for office entails substantial cost that may dissuade potential candidates. Latest answer posted April 30, 2021 at 6:21:45 PM. for Justice, How Judicial Elections Impact Criminal Cases 7-11 (2015), available at https://www.brennancenter.org/publication/how-judicial-elections-impact-criminal-cases. Nor have states that use merit selection generally had success in ensuring a diverse bench, raising questions about their processes for recruiting and vetting judicial candidates.26. It's time to renew your membership and keep access to free CLE, valuable publications and more. 25. In a 2001 survey of state supreme court, appellate, and trial judges, 46 percent said they believed campaign contributions had at least some impact on judges decisions.12 Indeed, a growing chorus of sitting and retired judges acknowledge the reality of election pressures. 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. H. Rep. 111-427, 111th Cong., 2d Sess. Goelzhauser provides clear empirical measures for his concepts of interest. The Governor must select from the list. 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. 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. The Appointments Clause, more specifically Article II 2, provides that the president of the United States shall nominate, and by and with the Advice and Consent of the Senate, shall appoint. There are of course valid reasons for withholding certain types of information related to judicial applications, given privacy concerns. 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. 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. But no state has moved from contested elections to a merit selection system in more than 30 years. 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. 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. Five states have gubernatorial or legislative appointments without a nominating commission, 16 states have merit selection through a nominating commission, and nine states (including Florida) have combined merit selection and other methods to select their judges. Hist. One set of reforms focuses on mitigating the impact of money and special interests in judicial elections, typically through public financing systems and stronger recusal rules, which govern when judges have to step aside from cases. Elections make judges more democratically accountable David Dewold. 9. Both parties present a field candidate and the voters decide which to choose; however, this system is flawed. 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. 2. 13 (2008). 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. 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