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. Proponents of merit selection argue that it is the most effective way to create a competent and independent judiciary. The Diane Rehm Show discusses how judicial elections and appointment processes impact fairness in state courts. This website uses cookies as well as similar tools and technologies to understand visitors' experiences. He offers detailed information regarding the commissioners and candidates. 7. 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. For example, can nominating commissions be structured in a way that more effectively promotes democratic legitimacy and diversity? 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. 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. Chapter 2 provides a vivid picture of commission deliberations during the vacancy stage. 22. Article III judges have life tenure. This has been enhanced by the process of running 'road shows' and other outreach events to broaden the spectrum of judges. 763, 763 (1971). Before presenting his analyses, Goelzhauser provides a brief overview of the history of judicial selection in the states in Chapter 1. But no state has moved from contested elections to a merit selection system in more than 30 years. After 245 years, the United States has not adopted a single unified method with which to select judges. 4. . She received undergraduate and law degrees from Stanford University. 2022 American Bar Association, all rights reserved. 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. Guest columnists write their own views on subjects they choose, which do not necessarily reflect the opinions of this newspaper. Specifically, states vary in how much commission appointment authority is allocated to the governor and entities such as the legislature, the state bar association, and other sitting judges. 28. Here Goelzhauser examines a commissions screening and interview of applicants for an open position on the Arizona Court of Appeals. 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. 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. Tony A. Freyer, American Liberalism and the Warren Courts Legacy, in 27 Revs. See Monika L. McDermott, Race and Gender Cues in Low-Information Elections, 51 Pol. . Using quantitative analyses, Chapter 3 explores why commissions and governors nominate and appoint particular applicants. He continues to traverse the merit selection process with an analysis of factors that influence commission nomination and the governors ultimate appointment. 1133, 1133 (1997). Merit selection advocates claim that it will get politics out of the process and focus only on the applicant's credentials. In theory, these judges would be the best equipped to deal with the complicated questions of justice that judges see every day. 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. 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. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting); see also generally Jeffrey Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (Oxford Univ. Today, 33 states along with the District of Columbia use some form of merit selection.24. U.S. Const. 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. Because the branches that are the most likely to gain an exorbitant amount of power and then to use that power for political purposes are the executive branch and the legislative branch, democracies need to have a judicial branch that is free from political pressures. Elections make judges more democratically accountable David Dewold. 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). Instead, these primary elections typically narrow the field to two candidates for the general election. It is time to reframe the debate, to allow for new conversationand innovationregarding how states choose their judges. It is also timely, as several states continue to tinker with the way judges are appointed. Educators go through a rigorous application process, and every answer they submit is reviewed by our in-house editorial team. 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. This potentially means that any "merit-based" system could be used to cover up politically driven judicial appointments from scrutiny. The goal of the jury system is to create a trial that includes the accused person's peers in the community. Focusing on judicial selection as reflecting different phasesinitial terms on the bench, subsequent terms, and interim appointmentsalso makes clear that selection methods may operate differently, and create different incentives, depending on the phase in which they are utilized. MERIT SELECTION. Goelzhausers work sheds new light on judicial merit selection processes and raises important questions for future researchers. He also effectively relays the dialogue between commissioners about particular candidates and, when possible, provides the votes of individual commissioners. There are of course valid reasons for withholding certain types of information related to judicial applications, given privacy concerns. 4. 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. Hist. 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. Judges should not be politically elected, because it would be disastrous to have judges act as politicians do. 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. It is bad enough that politically-inspiredlaws can be passed by legislators who are beholden to the interest groups that got them elected, we do not also need judges who have to interpret the law in a certain way in order to remain elected. The initial term of office is one years. 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. There are also normative questions about how to balance these values when they come into tension. 3. Some type of merit plan for selection of judges is utilized by 24 states and the District of Columbia. 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. 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. This also expands the field of candidates to include those dismayed by the idea of engaging in campaigning, who would otherwise be left out by an elective system. See, e.g., Joanna Shepherd, Justice at Risk (2013), available at http://www.acslaw.org/ACS%20Justice%20at%20Risk%20(FINAL)%206_10_13.pdf. 24. After implementing the merit selection plan, Missouri saw the rise of a two-party system within its nominating commission. eNotes.com will help you with any book or any question. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. 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. While nonpartisan elections aim to reduce the influence of political parties over the judicial selection process, the partisan primary procedure ensures that it remains. 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. James Sample et al., The New Politics of Judicial Elections 2000-2009: Decade of Change 4 (Charles Hall ed., 2010), available at http://www.brennancenter.org/publication/new-politicsjudicial-elections-2000-2009-decade-change. 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. Judicial Selection in the States: Ohio, Natl Ctr. 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? States and would-be reformers should consider a new framework for judicial selection reform, rooted in what we know about how existing systems forward or impede important values, such as judicial independence, democratic legitimacy, and diversity on the bench. Yet in all but three states, judges can serve multiple terms and must stand for election or reappointment, potentially putting their judicial records up for scrutiny. Lawyers Comm. I agree. As Ted Olson, the former Solicitor General and a prominent litigator, observed: The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today.11, These conflicts may also extend beyond appearances. Ciara Torres-Spelliscy et al., Brennan Ctr. Goelzhauser notes, All the speakers were attorneys or judges who knew the applicants in a professional capacity, and comments were uniformly positive (p. 27). . 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