merit selection of judges pros and cons

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. 1, Everyone interested in contributing [in a judicial election] has very specific interests. 7. Latest answer posted November 14, 2019 at 7:38:41 PM. 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. To empirically test his propositions, Goelzhauser amasses an impressive dataset with approximately 190,000 judge-vacancy observations from Alaska that include individuals who applied for each judicial vacancy since admission to statehood (p. 85). Retention elections, where a sitting judge is unopposed and faces an up-or-down vote, are the most common reselection method (used in 19 states), suggesting the importance of understanding how retention elections operate and the incentives they create.28. Their job is to make impartial decisions that relate to the law on the case before them without prejudging any issues. Then, using multi-method research approaches involving meticulous case study analyses and impressive original datasets, Goelzhauser provides an insightful and thought-provoking exploration of the stages and implementation of judicial merit selection. . In my opinion, district attorneys and judges should not be popularly elected on regular, short terms. 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. Judicial Selection in the States: Ohio, Natl Ctr. The Supreme Court should not be subjected to the rank political machinations at the heart of court packing. If that's a bad thing when it comes to our government representatives, it's a horrible thing for our judges. In recent decades, and particularly since 2000, state supreme court elections have become increasingly costly and politicized. 12. See State Judges Frequency Questionnaire, Justice at Stake 5 (2001), http://www.justiceatstake.org/media/cms/JASJudgesSurveyResults_EA8838C0504A5.pdf. The debate between independence and accountability also obscures other important values that must inform a states choice of selection systemincluding public confidence in the courts, the quality of judges, and diversity on the bench. It's time to renew your membership and keep access to free CLE, valuable publications and more. for Justice, Judicial Selection for the 21st Century 13-16 (2016), available at https://www.brennancenter.org/publication/judicial-selection-21st-century. 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. It is also timely, as several states continue to tinker with the way judges are appointed. in Am. . The article summarizes five such methods, some of their history, as well as pros and cons. First adopted by Mississippi in 1832, contested partisan elections for selecting judges became so widespread that the concept was included in the constitution of every state admitted into the Union between the years 1846 and 1912.11 While the popularity of contested partisan judicial elections has waned in the past century, 20 states still use contested partisan elections to select at least some of their trial court judges and seven (Alabama, Illinois, Louisiana, New Mexico, North Carolina, Pennsylvania, and Texas) select their appellate judges and supreme court justices through contested partisan elections as well.12. 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. Some type of merit plan for selection of judges is utilized by 24 states and the District of Columbia. 14. 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. for Civil Rights Under Law, Answering the Call for a More Diverse Judiciary: A Review of State Judicial Selection Models and Their Impact on Diversity 10 (2005), available at https://www.opensocietyfoundations.org/sites/default/files/answering_20050923.pdf. Partisan Election (current system) Pros: Voters have a direct say in judges who decide cases that have a huge . This potentially means that any "merit-based" system could be used to cover up politically driven judicial appointments from scrutiny. 829, 839 (2016). The judge then . 18. In their attempts to resolve this struggle, each proposed system of judicial selection further highlights their inherent strengths and flaws. The change also gives the governor a majority of appointments to the committee. Judicature | Bolch Judicial Institute | 210 Science Drive | Durham, NC 27708-0362 | (919) 613-7073 | judicature@law.duke.edu A merit-based appointment system prevents voters from making this mistake. 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. 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. Cts., https://www.uscourts.gov/judges-judgeships/about-federal-judges (last visited June 29, 2021). Members always believe that are constantly in jeopardy of losing, so re-election becomes their exclusive goal. Similarly, Justices David H. Souter and John Paul Stevens, members of the courts liberal wing, announced their retirements while the Democrats controlled both chambers of Congress during the first year of the Obama administration, being replaced by Sonia M. Sotomayor and Elena Kagan, respectively.10, A holdover from the era of Jacksonian democracy, contested partisan elections see judges run openly as members of a political party, culminating in their direct popular election as judges for a term of years akin to statewide office holders and members of the state legislatures. 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. 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. 10. As a result, nonpartisan elections become somewhat of a character study, with voters being encouraged to take the time to learn more about the individuals presented on the ballot as opposed to simply their party affiliation. After 245 years, the United States has not adopted a single unified method with which to select judges. 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. Would electing judges to a single fixed term better promote judicial independence and public confidence? See Torres-Spelliscy et al., supra note 20, at 1-2. 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. Greater transparency from states is clearly necessary for continued assessment of merit selection performance. 23. Guest columnists write their own views on subjects they choose, which do not necessarily reflect the opinions of this newspaper. Now with nonpartisan elections, there aren't any real costs but with . 12. 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. Merit selection went through a period of broad adoption in the 1960s and 1970s. Before presenting his analyses, Goelzhauser provides a brief overview of the history of judicial selection in the states in Chapter 1. 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. 15. In particular, while judicial selection debates are most often framed as a struggle between judicial independence and accountability, these terms obscure more complex questions. D. Castiglione, Judicial Diversity on State Supreme Court, 39 Seton Hall L. Rev. 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. Most proposals fall into two categories. The concern is that members of nominating commissions may represent special interests and may not be drawn from all segments of society. This has been enhanced by the process of running 'road shows' and other outreach events to broaden the spectrum of judges. 26. Unlike a traditional nonpartisan election, the partisan primary allows for a more curated list of judicial candidates. 17. 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. But no state has moved from contested elections to a merit selection system in more than 30 years. Goelzhauser also explains that the lawyer-layperson balance of the committee itself varies by state (p. 109). . 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. 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. Importantly, some of the strongest empirical evidence about how judicial selection impacts judges independence suggests that reselection pressureswhether through elections or appointmentspose severe challenges to fair courts.29 Yet, this is an area where the safeguards are consistently weak. 9. September 16, 2012. 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. 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. 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. 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. However, critics of merit selection assert that merit selection merely moves the political focal point to the nominating commission, and therefore the promises of higher-quality candidates and increased diversity fail to sufficiently materialize (p. 3). See Matthew J. Streb, Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections 10 (NYU Press 2009). The jury system works by using a group of people from the community. Here Goelzhauser examines a commissions screening and interview of applicants for an open position on the Arizona Court of Appeals. 26. The chief con with appointing judges is that,. 1589, 1617-21 (2009), available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1409&context=dlj. 3. See Gregory L. Acquaviva & John. 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. Merit selection arguably the most effective way to appoint a judge but it also has its pros and cons but the ultimate question is whether or not the retention election is a success or failure in the judicial system. See Richard Watson & Rondal Downing, The Politics of the Bench and the Bar: Judicial Selection Under the Missouri Nonpartisan Court Plan (John Wiley & Sons., Inc. 1969). These trends put new pressures on state court judges, with the potential to impact the everyday lives of people across the country. In the face of growing threats to state courts legitimacy and to the promise of equal justice for alland in light of the limits of the most common reform proposalswe need to rethink how we choose state court judges. Some critics argue elections create political biases which weaken judicial impartiality. Pros And Cons Of The Texas Judicial System. Instead of getting judges who cater to popular opinion through the voting process, the appointment process results in judges who cater to the opinion of only a small set of people: whoever is on the appointment panel. A nominating committee comprised of both lawyers and nonlawyers presents the governor with a list of nominees, from which the governor selects an appointee.
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