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. Criminal justice issues are particularly salient: in 2013-14, a record 56 percent of all ad spots either praised or attacked a candidates criminal justice record, often singling out individual decisions for criticism.7 In recent years, judges have been attacked for expressing sympathy for rapists and protect[ing] . 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. 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. 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. But there is far more agreement on the problems associated with judicial elections than on potential reforms. 13 (2008). While major political parties have been shut out of the merit selection system, the public is still allowed and encouraged to participate, voicing their opinions on judges when they are up for retention elections. 18. It's time to renew your membership and keep access to free CLE, valuable publications and more. With only a small set of values allowed, only those values will be used to make judicial decisions, which stagnates innovation in the law and prevents society from progressing. 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. Cts., https://www.uscourts.gov/judges-judgeships/about-federal-judges (last visited June 29, 2021). Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. As the purpose of a judicial system is impartial interpretation of the law, merit is everything. The question of what is the best method of judicial selection in the United States is nearly as old as the country itself. Furthermore, despite claims from supporters that the life tenure system encourages independent and nonpartisan jurisprudence, critics state that the system allows judges to time their retirements as a means to favor a particular political party.9 The administration of George W. Bush saw the retirement of two justices from the Supreme Courts conservative wing, Chief Justice William H. Rehnquist and Justice Sandra Day OConnor, who were succeeded by the like-minded John G. Roberts Jr. and Samuel A. Alito Jr., respectively. The substantial variation that accompanies constitutional and statutory design of merit selection systems also receives scant attention from scholars. They are first nominated by the president of the United States, and then with the Advice and Consent of the U.S. Senate, confirmed pursuant to the Appointments Clause in Article II of the U.S. Constitution.2 Envisioned by the framers as a means to insulate the courts from shifts in the public consensus, life tenure is derived from the good Behaviour clause in Article III of the Constitution, a concept tracing back to England.3 This system of life tenure for Article III judges has existed, more or less uninterrupted, since the Constitution was ratified in 1788. Judicature Socy, Judicial Selection in the States: Appellate and General Jurisdiction Courts (2013). Its very hard not to dance with the one who brung you.13. Goelzhauser challenges the institutional homogeneity assumption (p. 104) that typically accompanies research on merit selection commissions. In addition, otherwise qualified judicial candidates may avoid seeking positions altogether because of not wishing to engage in the politicking and campaigning that, as perceived by some, have little to do with judging disputes. The second set of proposals has focused on judicial selection reform, typically urging states to replace contested elections with a merit selection system. 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. 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. Merit selection went through a period of broad adoption in the 1960s and 1970s. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.); see also Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. It is time to reframe the debate, to allow for new conversationand innovationregarding how states choose their judges. 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. Depending on where you live, you might even be electing judges this year. 2023. Who are the experts?Our certified Educators are real professors, teachers, and scholars who use their academic expertise to tackle your toughest questions. 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. 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. The partisan election of judges is a selection method where judges are chosen through elections where they are listed on the ballot with an indication of their political affiliation.. As of December 2021, eight states used this method at the state supreme court level and eight states used this selection method for at least one type of court below the supreme court level. 1. 265, 27475 (2008). However, any judicial appointment system is rife with cons as well. Election: In nine states, judges. Nonpartisan elections were adopted in an attempt to help restore the integrity of the courts while helping break party strangleholds, with Cook County, Illinois, becoming the first to implement the method in 1873.16 As of today, 13 states still rely on contested nonpartisan elections (Arkansas, Georgia, Idaho, Kentucky, Minnesota, Mississippi, Montana, Nevada, North Dakota, Oregon, Washington, West Virginia, and Wisconsin) to elect their supreme court justices.17. What are the pros and cons of "professional jurors?". 12. Copyright 2023 Duke University School of Law. 24. 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. 6. Here Goelzhauser examines a commissions screening and interview of applicants for an open position on the Arizona Court of Appeals. See About Federal Judges, U.S. 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. The views expressed are solely those of the author. 8. 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. art. David E. Pozen, The Irony of Judicial Elections, 108 Colum. 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). Judges are subject to retention elections for six-year terms. What are the pros and cons of being a probation officer. A : Judicial candidates are prohibited from making predictions and promises about legal issues that might come before their courts. 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. This article updates a series of articles, including pro/con arguments on merit selection of judges, that were previously published in North Carolina Insight and now are contained in the latest edition of North Carolina Focus: Jack Betts, "The Debate Over Merit Selection of Judges," North Carolina Focus, N. C. Center for . 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. Advocates for the life tenure system believe it encourages judicial independence and decreases the likelihood of partisan influences. See Philip D. Oliver, Assessing and Addressing the Problems Caused by Life Tenure on the Supreme Court, 13 J. App. Sherrilyn A. Ifill, Judicial Diversity, 13 Green Bag 45, 48 (2009), available at http://www.greenbag.org/ v13n1/v13n1_ifill.pdf. Based on your case, ordinary people can be much easier to persuade than judges, who are obviously trained to . 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. You left off the third - and best choice -- appointment followed by retention elections. Merit selection advocates claim that it will get politics out of the process and focus only on the applicant's credentials. | Website designed by Addicott Web. Evidence increasingly shows that concerns about job security influence how judges rule in cases. 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. 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. 21. 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. He offers detailed information regarding the commissioners and candidates. 133 (1999). See Torres-Spelliscy et al., supra note 20, at 1-2. Some type of merit plan for selection of judges is utilized by 24 states and the District of Columbia. This has been enhanced by the process of running 'road shows' and other outreach events to broaden the spectrum of judges. Jed Handelsman Shugerman, The Peoples Courts 7 (2012). 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. 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. What that best way is, of course, subject to that debate. class="algoSlug_icon" data-priority="2">Web. In their attempts to resolve this struggle, each proposed system of judicial selection further highlights their inherent strengths and flaws. Jon and Jo Ann Hagler on behalf of the Jon L. Hagler Foundation. 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. During the confirmation of Chief Justice Roberts and Justice Alito, Republicans controlled both chambers of Congress along with the White House. Press 2018). Several of the most serious threats to equal justice stem from the growing politicization of judicial elections. Courts and the 2020 Elections: Partisans for Truth and the Rule of Law, Political Activity Inconsistent with the Impartiality of the Judiciary, American Bar Association Latest answer posted December 11, 2020 at 11:00:01 AM. 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. L. Rev. 28. By Andrew J. Clark. One particularly interesting aspect of the narrative in Chapter 2 involves Goelzhausers discussion of the public comment period during the commissions screening of applicants (p. 26). Judicature | Bolch Judicial Institute | 210 Science Drive | Durham, NC 27708-0362 | (919) 613-7073 | judicature@law.duke.edu 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. Michael ODonnell, Commander v. Chief: The Lessons of Eisenhowers Civil-Rights Struggle with His Chief Justice Earl Warren, The Atl. The concern is that members of nominating commissions may represent special interests and may not be drawn from all segments of society. Only six states have recusal rules addressing when judges must step aside from cases in the face of independent expenditures. Educators go through a rigorous application process, and every answer they submit is reviewed by our in-house editorial team. . Rsch. 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. Jurors have more compassion than judges. Goelzhauser provides clear empirical measures for his concepts of interest. 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. Res. See Monika L. McDermott, Race and Gender Cues in Low-Information Elections, 51 Pol. Questions regarding judicial philosophy, accountability, and favored or disfavored appellate decisions are a few of the queries posed to applicants. Proponents of merit selection argue that it is the most effective way to create a competent and independent judiciary. 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). While there is growing recognition of the problems facing state courts, many of the proposed solutions have not been fully responsive to these challenges. Pros And Cons Of Re Elections One of members of congress's main goal is to become re elected. Off. 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. Tony A. Freyer, American Liberalism and the Warren Courts Legacy, in 27 Revs. Iowa Governor Kim Reynolds recently signed legislation that would increase her appointment power over the states 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. U.S. Const. Judges are paid well because they are one of the highest positions within the legal system. FLORIDA: Judges for the supreme court and district courts of appeal are chosen through a merit selection involving a nominating commission. Goelzhauser notes, All the speakers were attorneys or judges who knew the applicants in a professional capacity, and comments were uniformly positive (p. 27). Sandra Day grew up on a large family ranch near Duncan, Arizona. 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. To carry out their duties as a judge it is vital that they are impartial, and the party political system and method of voting would guarantee that they would lack that necessary impartiality that is needed. The chief con with appointing judges is that,. 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. There are currently three procedures that are used to select judges. 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