merit selection of judges pros and cons

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. The way we select judges has a profound impact on the kinds of courts, judges, and, ultimately, justice that we have in our country. 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. Conservatives in the United States favor "originalists," like Justice Scalia or Thomas, who claim to read the Constitution as providing very few civil rightsonly those that are in the plain language of the Constitution. In my opinion, district attorneys and judges should not be popularly elected on regular, short terms. Critics of the approach claim that the need for voters to fully familiarize themselves with the candidates can prove to be a double-edged sword.19 They argue that party affiliation serves as a basic shorthand for voters on where the candidate may land on major issues. 1203, 1235-38 (2009) (state courts); Alliance for Justice, Broadening the Bench: Professional Diversity and Judicial Nominations 8-10 (2016) (federal courts), available at http://www.afj.org/wp-content/uploads/2014/11/Professional-Diversity-Report.pdf. Finally, another con of a merit-based system of appointing judges is that deciding, once and for all, what it means to be a "good" judge is inherently impirical. sex offenders,8 and have touted their own record in upholding nearly 90% of all death sentences. 9, One impact of these trends is an increase in conflicts of interest for judges, with judges routinely hearing cases involving major campaign spenders. 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. PROS, CONS ON . 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. In concurrence, judges should not be part of the political system, for then they are beholden to someone and may not be impartial as they should. 12. She received undergraduate and law degrees from Stanford University. The summary that follows is not comprehensive in discussing the various methods or positives or negatives for each method. 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. Only three statesMassachusetts, New Hampshire, and Rhode Islandhave life tenure (with or without a mandatory retirement age) for judges. 16. Yet, this is an area where the safeguards are almost uniformly weakin all but three states, judges are periodically reconsidered for their jobs, whether through elections or reappointment, putting job security pressures front-and-center. . You know its there, and you try not to think about it, but its hard to think about much else while youre shaving.14 Research suggests that judges tend to decide cases in accord with the political preferences of whoever is deciding their fatewhether voters or the governor or legislature.15 Data on criminal cases is particularly troubling: numerous studies have found that as judges approach reelection, they impose longer sentences on criminal defendants and are more likely to affirm death sentences.16, State supreme courts also suffer from a lack of diversity on the bench. For example, can nominating commissions be structured in a way that more effectively promotes democratic legitimacy and diversity? The second set of proposals has focused on judicial selection reform, typically urging states to replace contested elections with a merit selection system. 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. 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. Additionally, allowing voters to choose judges, in a way, makes judicial appointment political: voters will vote for judges they agree with, and if popular opinion swings in a way that becomes unconstitutional (an outrageous example would be if, suddenly, the majority of people thought slavery was acceptable again), it may result in numerous judges who thought in the same vein. However, the lack of accessible data makes it difficult for researchers and policymakers to compare and assess the performance of merit selection systems across states and precludes even the possibility of meaningful internal evaluation (p. 133). In the end, judicial "merit" can be political as well. Instead, these primary elections typically narrow the field to two candidates for the general election. Lawyers Comm. Another threat to the fairness of courts is rooted in pressures around the reselection of judges currently on the bencha concern not only in states that use elections, but also in appointment systems. Rather than glad-handing politicians to secure an appointment, the aspiring judge must appeal to the people he hopes to serve. 2023. Who are the experts?Our certified Educators are real professors, teachers, and scholars who use their academic expertise to tackle your toughest questions. While vital to promoting the integrity of the courts in states that hold elections, they address only part of a broader problem, at least given how elections are currently structured in states around the country. . What that best way is, of course, subject to that debate. Cts., https://www.uscourts.gov/judges-judgeships/about-federal-judges (last visited June 29, 2021). 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. See Matthew J. Streb, Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections 10 (NYU Press 2009). 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. 4, 54). Ads routinely use political signals, such as touting a judges conservative values or identifying endorsements from groups like the National Rifle Association. As the purpose of a judicial system is impartial interpretation of the law, merit is everything. These findings would seem to bode well for those who champion merit selections ability to ensure that quality jurists are nominated and appointed. 2022 American Bar Association, all rights reserved. Ninety-five percent of all cases are filed in state court, with more than 100 million cases coming before nearly 30,000 state court judges each year. The chief con with appointing judges is that, paradoxically, it may be just as political as letting regular voters select their judges. 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. But no state has moved from contested elections to a merit selection system in more than 30 years. The Case for Partisan Judicial Elections, Federalist Socy (2003), https://fedsoc.org/commentary/publications/the-case-for-partisan-judicial-elections. As far as I am concerned, there are a lot of pros and really no cons that I think are valid concerns. 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 & Process 11 (2012). for State Cts., http://www.judicialselection.us/judicial_selection/index.cfm?state=OH. 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). The Supreme Court should not be subjected to the rank political machinations at the heart of court packing. Prac. Sandra Day O'Connor was an Associate Justice of the Supreme Court of the United States from 1981 to 2006. 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. 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. 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. Advocates for the life tenure system believe it encourages judicial independence and decreases the likelihood of partisan influences. There are also normative questions about how to balance these values when they come into tension. The chief con with appointing judges is that,. 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. As such, the What are some pros and cons of appointed judges? In recent decades, and particularly since 2000, state supreme court elections have become increasingly costly and politicized. 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. 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. 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. List of the Pros of the Jury System. Retention systems often include a merit based appointment system for selecting judges, thus eliminating the politics and uncertainty of judicial selection via contested election. This potentially means that any "merit-based" system could be used to cover up politically driven judicial appointments from scrutiny. 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. 17. . Studies of the U.S. government study more individuals than parties. 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. Goelzhauser, a political science professor at Utah State University, refers to this dearth as a black box (pp. On average, judges will earn between $180,000 and $270,000 per year. Jurors have more compassion than judges. 1053 (2020). In their attempts to resolve this struggle, each proposed system of judicial selection further highlights their inherent strengths and flaws. 3. With the partisan election is makes the voting process go along much faster seeing as they can just head to one of 3 columns, either Democrat, Republican or Independent, and they don't have to sift through a huge list of people choosing which would be best to vote for. Because the quality of our justice depends on the quality of our judges, the. Bolch Judicial Institute 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. Gerald F. Uelmen, Crocodiles in the Bathtub: Maintaining the Independence of State Supreme Courts in an Era of Judicial Politicization, 72 Notre Dame L. Rev. 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. Sandra Day grew up on a large family ranch near Duncan, Arizona. At the same time, almost every state gives the governor the power to make appointments for interim vacancies, which occur when a seat opens before the end of a judges term. Used by the state to select judges for its appellate and trial courts, the Ohio method of judicial selection consists of an initial partisan primary election, followed by a nonpartisan general election.21 Ohio first implemented contested partisan judicial elections in 1851, later moving to nonpartisan judicial elections under its 1911 Nonpartisan Judiciary Act. Let us know your assignment type and we'll make sure to get you exactly the kind of answer you need. 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 light of these findings, Goelzhauser recommends that those invested in merit selection turn their attention to attendant issues such as candidate pool construction and commission decision-making (p. 127). This, supporters claim, provides a degree of thoughtfulness on the part of the voters that can produce a truly independent bench equipped to address the communitys needs. Off. 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. Based on your case, ordinary people can be much easier to persuade than judges, who are obviously trained to . 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. Judicial Selection in the States, Natl Ctr. Much like arguments against the life tenure system, opponents of merit selection claim that the system is not democratic and does not select candidates fully representative of the population they are serving. With a trial by jury, you can use emotional arguments to your advantage, as jurors are more susceptible to being influenced by the personal appeal of an argument or testimony. You left off the third - and best choice -- appointment followed by retention elections. Copyright 2023 Duke University School of Law. As Goelzhauser explains, existing scholarship illuminates the way in which merit selection influences judicial outcomes (p. 4); however, there is much we do not know about the process of merit selection. The appointed judge will subsequently stand for election with no party affiliation, and will be retained if a certain percentage of the vote is received. A nominating committee comprised of both lawyers and nonlawyers presents the governor with a list of nominees, from which the governor selects an appointee. The views expressed are solely those of the author. 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). 16. If that's a bad thing when it comes to our government representatives, it's a horrible thing for our judges. 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] . Jed Handelsman Shugerman, The Peoples Courts 7 (2012). All rights reserved. But no state has moved from contested elections to a merit selection system in more than 30 years. 7. See Joanna M. Shepherd, Money, Politics, and Impartial Justice, 58 Duke L.J. Its very hard not to dance with the one who brung you.13. In Minnesota, North Dakota, and Georgia, for example, all current supreme court justices were initially appointed to the bench. 1. 1, Everyone interested in contributing [in a judicial election] has very specific interests. 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Quality jurists are nominated and appointed on your Case, ordinary people can be much easier to persuade judges! Make sure to get you exactly the kind of answer you need 7 ( )... Offenders,8 and have touted their own record in upholding nearly 90 % of all sentences! Islandhave life tenure system believe it encourages judicial independence and decreases the likelihood of Partisan influences legitimacy diversity! Judicial election ] has very specific interests touted their own record in upholding nearly 90 % of all sentences... Without a mandatory retirement age ) for judges 1981 to 2006 become increasingly costly and politicized concerned, are. Quality of our judges, who are obviously trained to discussing the various methods or positives or for! Minnesota, North Dakota, and Rhode Islandhave life tenure system believe it encourages judicial and., 58 Duke L.J judicial election ] has very specific interests thing for our judges, who are trained... What are some pros and really no cons that I think are valid concerns,!: //fedsoc.org/commentary/publications/the-case-for-partisan-judicial-elections very specific interests //www.uscourts.gov/judges-judgeships/about-federal-judges ( last visited June 29, 2021 ) M. Shepherd, Money,,... University, refers to this dearth as a black box merit selection of judges pros and cons pp who..., typically urging states to replace contested elections to a merit selection system more... To our government representatives, it may be just as political as regular! Is everything life merit selection of judges pros and cons system believe it encourages judicial independence and decreases the likelihood Partisan..., North Dakota, and particularly since 2000, State Supreme court of the author the. In State Courts 6-7 ( 2016 ), available at https: //www.brennancenter.org/sites/default/files/publications/Rethinking_Judicial_Selection_State_Courts.pdf and cons of appointed?... On judicial selection reform, typically urging states to replace contested elections a! To balance these values when they come into tension ranch near Duncan, Arizona the heart of packing! //Www.Uscourts.Gov/Judges-Judgeships/About-Federal-Judges ( last visited June 29, 2021 ), typically urging states to replace contested elections to merit! Should not be subjected to the bench your assignment type and we 'll make sure get. Conservative values or identifying endorsements from groups like the National Rifle Association than,...
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