All rights reserved. eNotes.com will help you with any book or any question. 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. .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. | 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. The question of what is the best method of judicial selection in the United States is nearly as old as the country itself. Merit selection went through a period of broad adoption in the 1960s and 1970s. Funding for FRONTLINE is provided through the support of PBS viewers and by the Corporation for Public Broadcasting. Rsch. With a few exceptions, he generally finds no systematic and consistent relationship between a commissions institutional design and performance. 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. In terms of expressive ambition, women do not appear to be at a disadvantage in terms of the decision to apply for open judicial positions; however, partisanship once again emerges as a significant factor. Retention systems often include a merit based appointment system for selecting judges, thus eliminating the politics and uncertainty of judicial selection via contested election. Prac. 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. See Joanna M. Shepherd, Money, Politics, and Impartial Justice, 58 Duke L.J. 1589, 1617-21 (2009), available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1409&context=dlj. To explore this premise systematically, Goelzhauser submitted public record requests to all states employing merit selection; only Nebraska supplied the information needed to properly explore the factors that influence commission and governor choice. One of the highlights and contributions of Chapter 5 is that Goelzhauser provides a detailed account of the myriad ways in which merit selection commissions vary across institutional metrics. 17. 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. This has been enhanced by the process of running 'road shows' and other outreach events to broaden the spectrum of judges. Following their appointment, judges typically stand for periodic retention elections. A nominating committee comprised of both lawyers and nonlawyers presents the governor with a list of nominees, from which the governor selects an appointee. Before presenting his analyses, Goelzhauser provides a brief overview of the history of judicial selection in the states in Chapter 1. Alicia Bannon, Brennan Ctr. Duke Law School. States have also lagged in adopting either reform. Most constitutional governments, including the United States' government, use three branches of governmentthe legislative, executive, and judicialand rely on a system of checks and balances to ensure that none of these branches gain too much power over the others. Pros Cons Judges who are appointed are more likely to be highly qualified . 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. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. 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. Variables such as longer length of judicial experience (up to a point) and receiving professional honors increase the probability of commission nomination. The Pros and Cons of Electing Judges The 2020 election year is well underway, which means you've probably been considering where to cast your vote. 4. Judicial Selection in the States, Natl Ctr. This first con hints at the real problem with a "merit-based" appointment system for judges: what is "merit"? Judges based in areas that favor one party over the other may be incentivized to author decisions that help their reelection efforts rather than making their rulings on the merits to the best of their ability. Lawyers Comm. 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). Indeed, scholarship suggests that when voters face low-information electionsas judicial elections typically arethey may, consciously or unconsciously, rely on racial and gender stereotypes as shortcuts in determining their choice.23. Thirty-eight states use elections as part of their selection process at the supreme court level. 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). 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. 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. 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. Copyright 2023 Duke University School of Law. 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. 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. Alicia Bannon et al., The New Politics of Judicial Elections 2011-2012: How New Waves of Special Interest Spending Raised the Stakes for Fair Courts 24-25 (Laurie Kinney & Peter Hardin eds., 2013), available at https://www.brennancenter.org/publication/new-politics-judicial-elections-2011-12. What are five reasons to support the death penalty? The summary that follows is not comprehensive in discussing the various methods or positives or negatives for each method. 13. See Rebekkah Stuteville, Judicial Selection in the State of Missouri: Continuing Controversies, 2 Mo. Goelzhauser challenges the institutional homogeneity assumption (p. 104) that typically accompanies research on merit selection commissions. 14. 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. Additionally, judges are rarely removed when they stand for retention, and frequently don't have opposition in elections, so merit selection often results in what amounts to life tenure for judges. 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. of the U.S. Courts at 8 (of 8), https://www.uscourts.gov/sites/default/files/allauth.pdf (last visited June 6, 2021). See Kate Berry, Brennan Ctr. 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. Another important pro of having a merit-based system of judicial appointments is that it takes the process out of the hands of voters, avoiding one of the most popular alternatives to judicial appointments. Proponents of merit selection argue that it is the most effective way to create a competent and independent judiciary. They are unlikely to recognize the differences in the makeup of an effective judge and an ineffective one and are nearly as likely to vote for bad judges as they are to vote for good ones. for State Cts., http://www.judicialselection.us/judicial_selection/index.cfm?state=OH. The Supreme Court should not be subjected to the rank political machinations at the heart of court packing. 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. 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. 1, Everyone interested in contributing [in a judicial election] has very specific interests. Its particular emphasis on the primary is of note though. 8. Goelzhauser presents a novel and persuasive theory of expressive and progressive ambition in Chapter 4. It's time to renew your membership and keep access to free CLE, valuable publications and more. Trial by Jury: Pros. 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. 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). Several of the most serious threats to equal justice stem from the growing politicization of judicial elections. 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. While there is growing recognition of the problems facing state courts, many of the proposed solutions have not been fully responsive to these challenges. On the question of the initial or interim selection of judges to fill vacant seats, here, too, those considering reform should look at a wide range of options, considering the likely impact, and tradeoffs, associated with different selection options. . Merit selection and retention is a system of selecting Justices established by the voters when they amended the Florida Constitution in the 1970s. Merit selectionparticularly the three-step versionaddresses each of these concerns. 25. List of the Pros of the Jury System. The answer to the question of whether merit selection works is understandably complex, and Goelzhauser concludes by assessing his findings in light of the normative goals and expectations of merit selection. A competent and independent judiciary the summary that follows is not comprehensive in the... Keep access to free CLE and other benefits of PBS viewers and by the voters when they amended the Constitution! 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