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. Questions regarding judicial philosophy, accountability, and favored or disfavored appellate decisions are a few of the queries posed to applicants. Not all areas elect them, though. Do some institutional specifications make certain merit selection systems more susceptible to capture, which could affect the systems ability to deliver on things like the appointment of high-quality jurists? Presumably, these results would vary depending on which party is dominant in state politics. These methods are as follows: executive appointment, election, and merit selection. The views expressed are solely those of the author. Proponents of Nevada's system of electing judges have argued that competitive election of judges is the most democratic way of ensuring that judges remain accountable to the people. 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. 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. Q. The identifying feature of merit selection is its two-stage appointment process: An appointed commission winnows a list of candidates and then forwards that list of candidates to the governor for appointment. Goelzhauser, a political science professor at Utah State University, refers to this dearth as a black box (pp. 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. Upon reading Goelzhausers description, one wonders whether expanded opportunities for public comment could help assuage concerns of transparency and public participation in the merit selection process. 6. The concern is that members of nominating commissions may represent special interests and may not be drawn from all segments of society. 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. 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. This potentially means that any "merit-based" system could be used to cover up politically driven judicial appointments from scrutiny. However, any judicial appointment system is rife with cons as well. 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. However, I do not think that the voters are the ones who should decide how to interpret the laws. 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. This first con hints at the real problem with a "merit-based" appointment system for judges: what is "merit"? 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. Electing judges still bring in partisanship. for Justice, How Judicial Elections Impact Criminal Cases 7-11 (2015), available at https://www.brennancenter.org/publication/how-judicial-elections-impact-criminal-cases. 13 (2008). Jed Handelsman Shugerman, The Peoples Courts 7 (2012). 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. David E. Pozen, The Irony of Judicial Elections, 108 Colum. 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. The chief con with appointing judges is that, paradoxically, it may be just as political as letting regular voters select their judges. Five states have gubernatorial or legislative appointments without a nominating commission, 16 states have merit selection through a nominating commission, and nine states (including Florida) have combined merit selection and other methods to select their judges. Some answers to commissioner questions suggested strategic behavior on the part of applicants whose partisan leaning was slightly out-of-step with the state political environment. On average, judges will earn between $180,000 and $270,000 per year. Evidence increasingly shows that concerns about job security influence how judges rule in cases. Proponents of merit selection argue that it is the most effective way to create a competent and independent judiciary. (Mar. Judges are subject to retention elections for six-year terms. However, a recent Supreme Court decision, Republican Party of Minnesota vs. White, affirmed the right of judges to speak on these issues. Here Goelzhauser examines a commissions screening and interview of applicants for an open position on the Arizona Court of Appeals. "What are the pros and cons of the merit appointment system of selecting judges?" 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. 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. Accessed 1 Mar. Rather than glad-handing politicians to secure an appointment, the aspiring judge must appeal to the people he hopes to serve. This is no easy task. 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. In recent years, Citizens United v. FEC, which barred restrictions on independent spending by corporations and unions, has also cast a long shadow, with spending by outside groupsmany of which do not disclose their donorssurging. The Pay is Good. 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. 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. 1053 (2020). 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). 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. 12. 8. 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. 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. The only con I can see is that this takes some power away from the voters. 21. Judges of the supreme Court, and all other Officers of the United States.. 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. 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. 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. 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. Alicia Bannon, Brennan Ctr. III, 1 (The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. In particular, while judicial selection debates are most often framed as a struggle between judicial independence and accountability, these terms obscure more complex questions. Latest answer posted November 14, 2019 at 7:38:41 PM. He also effectively relays the dialogue between commissioners about particular candidates and, when possible, provides the votes of individual commissioners. According to Goelzhauser, if merit selection works as intended, commissions and governors should be selecting on qualifications and diversity rather than political considerations (p. 56). Would electing judges to a single fixed term better promote judicial independence and public confidence? 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. 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. Judicial Selection in the States: Ohio, Natl Ctr. Although not the focus of the text of this article, nonArticle III federal judges are appointed for specified terms of office in a variety of different ways. 26. 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. See Kathleen L. Barber, Ohio Judicial ElectionsNonpartisan Premises with Partisan Results, 32 Ohio St. L.J. Its very hard not to dance with the one who brung you.13. Matthew J. Streb, Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections, Richard Watson & Rondal Downing, The Politics of the Bench and the Bar: Judicial Selection Under the Missouri Nonpartisan Court Plan, Jeffrey Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law, /content/aba-cms-dotorg/en/groups/judicial/publications/judges_journal/2021/fall/judicial-selection-the-united-states-overview, https://www.uscourts.gov/sites/default/files/allauth.pdf, https://www.congress.gov/congressional-report/111th-congress/house-report/427/1, https://www.uscourts.gov/judges-judgeships/about-federal-judges, https://fedsoc.org/commentary/publications/the-case-for-partisan-judicial-elections, https://ballotpedia.org/Nonpartisan_election_of_judges, https://www.lindenwood.edu/files/resources/stuteville.pdf. The question of who sits on the bench has high stakes, and judicial elections are increasingly indistinguishable from the rough-and-tumble of ordinary politics, with troubling implications for the integrity of state courts. 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. However, any judicial appointment system is rife with cons as well. 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. DOWNERS GROVE I agree that something should be done to improve the judicial selection . 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). The Appointments Clause, more specifically Article II 2, provides that the president of the United States shall nominate, and by and with the Advice and Consent of the Senate, shall appoint. If that's a bad thing when it comes to our government representatives, it's a horrible thing for our judges. 8. 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. Election: In nine states, judges. 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? 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. Examines a commissions screening and interview of applicants whose partisan leaning was slightly out-of-step with state... To commissioner questions suggested strategic behavior on the Arizona Court of Appeals merit appointment system is rife with cons well. 180,000 and $ 270,000 per year a bad thing when it comes to our government representatives, it 's bad. However, any judicial appointment system for judges: what is `` merit '' decide to... Should decide how to interpret the laws that it is the most effective way to create a competent and judiciary. 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