. Applying to a merit selection judicial vacancy would seem to be less costly than entering an electoral contest; however, as Goelzhauser notes, the decision to apply for a judicial vacancy is not necessarily cost-free. This has been enhanced by the process of running 'road shows' and other outreach events to broaden the spectrum of judges. . Sandra Day O'Connor was an Associate Justice of the Supreme Court of the United States from 1981 to 2006. There are also normative questions about how to balance these values when they come into tension. But no state has moved from contested elections to a merit selection system in more than 30 years. In 12 other states, judges are elected, but the elections are nonpartisan, which means the judges do not reveal their political affiliation. Am. It is also timely, as several states continue to tinker with the way judges are appointed. Latest answer posted December 11, 2020 at 11:00:01 AM. 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. 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. 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. You'll receive access to exclusive information and early alerts about our documentaries and investigations. Authorized Judgeships, Admin. However, any judicial appointment system is rife with cons as well. Surprisingly, relatively little attention has been paid to reselection as such, and how these unique pressures might be mitigated, regardless of how a judge initially made it onto the bench. 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. However, any judicial appointment system is rife with cons as well. 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. These trends put new pressures on state court judges, with the potential to impact the everyday lives of people across the country. The Supreme Court should not be subjected to the rank political machinations at the heart of court packing. 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). If you have a non-political body set up to recommend potential appointees (and you let the governor pick which one(s) to actually appoint) then the potential appointees will be selected on legal expertise, not for political reasons. As Goelzhauser notes throughout the book, transparency gaps complicate assessment of merit selection performance from a multi-state perspective; however, Nebraskas merit selection system is representative of merit systems in a number of states, so the analyses and findings offer broader insights useful beyond Nebraska state lines. Sorry, we couldn't find what you're looking for. Electing judges still bring in partisanship. 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. 22. One striking factor is that while elective and appointive systems are often described in opposition to each other, the majority of states have elements of both systems. With our Essay Lab, you can create a customized outline within seconds to get started on your essay right away. Judges are subject to retention elections for six-year terms. 1133, 1133 (1997). Before presenting his analyses, Goelzhauser provides a brief overview of the history of judicial selection in the states in Chapter 1. As such, the What are some pros and cons of appointed judges? That said, the ensuing year saw a progressive majority at the states constitutional convention push through a proposal allowing primary nominations for elected offices. 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. 2022 American Bar Association, all rights reserved. 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. I would fear that a judge that is elected would owe a debt to his political supporters. 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. Readers also gain insight into the questions posed by commissioners to candidates during the interview stage (after the commission has narrowed the list of applicants). See Monika L. McDermott, Race and Gender Cues in Low-Information Elections, 51 Pol. Greater transparency from states is clearly necessary for continued assessment of merit selection performance. However, voter participation in primary elections tends to skew lower when compared with participation in general elections, with voters in primaries more often consisting of party loyalists rather than casual participants. These findings would seem to bode well for those who champion merit selections ability to ensure that quality jurists are nominated and appointed. Michael ODonnell, Commander v. Chief: The Lessons of Eisenhowers Civil-Rights Struggle with His Chief Justice Earl Warren, The Atl. 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. Depending on where you live, you might even be electing judges this year. Supporters of nonpartisan elections claim that the system stays true to the principles of popular consent and accountability that led to the first judicial elections.18 Nonpartisan elections still hold judicial candidates accountable to the public; however, candidates would not need to find themselves in deference to a larger, party apparatus. 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. Gerald C. Wright, Charles Adrian and the Study of Nonpartisan Elections, 61 Pol. What are five reasons to support the death penalty? What are the pros and cons of electing judges? Our summaries and analyses are written by experts, and your questions are answered by real teachers. 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. Judicial Selection in the States, Natl Ctr. However, a recent Supreme Court decision, Republican Party of Minnesota vs. White, affirmed the right of judges to speak on these issues. Pros and Cons of Various Judicial Selection Methods . What are the strengths and weakness of the legislative branch? At the time of the drafting of the Arizona Constitution, the Progressive Party and movement was very influential in American politics. Nearly 90 years ago, U.S. Supreme Court Justice Louis Brandeis famously wrote: It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.26 Judicial selection in the United States is a wonderfully rich example of that maxim. In theory, these judges would be the best equipped to deal with the complicated questions of justice that judges see every day. 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). 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. 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. Goelzhauser assesses these metrics through an exploration of the expressive and progressive ambition of eligible attorneys and judges when vacancies emerge, and an in-depth examination of the implementation stage of merit selection (i.e., commission action when a vacancy occurs). . Latest answer posted January 23, 2021 at 2:37:16 PM. The second set of proposals has focused on judicial selection reform, typically urging states to replace contested elections with a merit selection system. 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. 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. 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. Jon and Jo Ann Hagler on behalf of the Jon L. Hagler Foundation. Judges of the supreme Court, and all other Officers of the United States.. H. Rep. 111-427, 111th Cong., 2d Sess. 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. 16. judges, who handle misdemeanors and lesser civil cases may be elected or appointed. /content/aba-cms-dotorg/en/groups/professional_responsibility/publications/professional_lawyer/2016/volume-24-number-1/rethinking_judicial_selection, The Professional Lawyer, Volume 24, Number 1, http://www.nytimes.com/2006/10/01/us/01judges.html?pagewanted=all, http://www.greenbag.org/ v13n1/v13n1_ifill.pdf, http://newpoliticsreport.org/app/uploads/JAS-NPJE-2013-14.pdf, http://www.acslaw.org/ACS%20Justice%20at%20Risk%20(FINAL)%206_10_13.pdf, https://www.brennancenter.org/sites/default/files/publications/Rethinking_Judicial_Selection_State_Courts.pdf, https://www.brennancenter.org/publication/new-politics-judicial-elections-2011-12, http://www.judicialselection.us/uploads/documents/AJS_NV_study_FINAL_A3A7D42494729.pdf, http://www.brennancenter.org/publication/new-politicsjudicial-elections-2000-2009-decade-change, http://www.justiceatstake.org/media/cms/JASJudgesSurveyResults_EA8838C0504A5.pdf, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1386&context=dlj, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1409&context=dlj, https://www.brennancenter.org/publication/how-judicial-elections-impact-criminal-cases, http://gavelgap.org/pdf/gavel-gap-report.pdf, http://www.afj.org/wp-content/uploads/2014/11/Professional-Diversity-Report.pdf, https://www.brennancenter.org/sites/default/files/legacy/Improving_Judicial_Diversity_2010.pdf, http://www.judicialselection.us/uploads/documents/Diversity_and_the_Judicial_Merit_Se_9C4863118945B.pdf, https://www.opensocietyfoundations.org/sites/default/files/answering_20050923.pdf, https://www.brennancenter.org/publication/judicial-selection-21st-century, http://judicialselectionmap.brennancenter.org/?court=Supreme. 11. Goelzhauser finds consistent evidence of the influence of partisanship at the gubernatorial appointment stage, with Democrats being systematically disadvantaged in regards to appointment probability (p. 70). Thirty-eight states use elections as part of their selection process at the supreme court level. Web Site Copyright 1995-2023 WGBH Educational Foundation. Ever since, Ohios judicial elections have consisted of the partisan primary and nonpartisan general.22. 1, Everyone interested in contributing [in a judicial election] has very specific interests. Based on the thought that judges are, in fact, policy makers, advocates indicate judicial elections prove to be a sufficient means of allowing constituencies to express their will regarding the makeup and perspective of the bench.14 Contested partisan elections go one step further by having judges openly identify as a member of a particular political party, signaling to voters in easily accessible terms what their overarching political philosophy may be. 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. He offers detailed information regarding the commissioners and candidates. Merit selectionparticularly the three-step versionaddresses each of these concerns. 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. 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. . 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. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. for Justice, How Judicial Elections Impact Criminal Cases 7-11 (2015), available at https://www.brennancenter.org/publication/how-judicial-elections-impact-criminal-cases. 1. Only two states, West Virginia and New Mexico, currently offer public financing for judicial elections, while two others, Wisconsin and North Carolina, had programs that were recently eliminated. 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. Goelzhauser notes, All the speakers were attorneys or judges who knew the applicants in a professional capacity, and comments were uniformly positive (p. 27). Latest answer posted April 30, 2021 at 6:21:45 PM. 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. PROS, CONS ON . Opponents argue that while neither the Republican nor Democratic state parties may hold much influence within the commission, the commission itself encourages factionalism and the creation of new informal political parties. 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. A nominating committee comprised of both lawyers and nonlawyers presents the. 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] . Pros Cons Judges who are appointed are more likely to be highly qualified . 18. In particular, empirical evidence suggests that reselection pressures pose unique and serious threats to the fairness of courts. Goelzhauser provides clear empirical measures for his concepts of interest. Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. However, Goelzhausers discussion illustrates that some states allow for modest inclusion of public views on potential nominees. 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. 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. 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. 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. The jury system works by using a group of people from the community. Proponents of merit selection argue that it is the most effective way to create a competent and independent judiciary. Election: In nine states, judges. In recent decades, and particularly since 2000, state supreme court elections have become increasingly costly and politicized. Lower level trial judges should thereafter be appointed to the upper level trial bench based on their experience and merit rather than from elected or appointed party politics. Goelzhauser presents a novel and persuasive theory of expressive and progressive ambition in Chapter 4. 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. 2. 26. Sherrilyn A. Ifill, Judicial Diversity, 13 Green Bag 45, 48 (2009), available at http://www.greenbag.org/ v13n1/v13n1_ifill.pdf. 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. This website uses cookies as well as similar tools and technologies to understand visitors' experiences. Studies of the U.S. government study more individuals than parties. Rather than glad-handing politicians to secure an appointment, the aspiring judge must appeal to the people he hopes to serve. The article summarizes five such methods, some of their history, as well as pros and cons. See Kathleen L. Barber, Ohio Judicial ElectionsNonpartisan Premises with Partisan Results, 32 Ohio St. L.J. Not all areas elect them, though. 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). What solutions would you impose? This includes 22 states that use elections for a judges initial term on the bench, and 38 states that use elections for subsequent terms on the bench. Goelzhauser challenges the institutional homogeneity assumption (p. 104) that typically accompanies research on merit selection commissions. The pros are numerous, but what they boil down to is that you want your judges to make their decisions based on the law, not based on what public opinion says or what people who can contribute lots of money to campaigns think. A distorted pool can lead to distorted merit selection outcomes. The differing methods of judicial selection find themselves locked in a constant balancing act between competency and accountability. "What are the pros and cons of the merit appointment system of selecting judges?" . 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. 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. Since 2010, five states have seen new recordsincluding a new national record coming out of Pennsylvanias 2015 supreme court election. 24. Latest answer posted June 18, 2019 at 6:25:00 AM. 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. The question of judicial selection has grown even more opaque in the nearly two centuries since, as various other methods for judicial selection have been implemented. The judge then . In fact, increased transparency for information related to merit selection processes is Goelzhausers first design recommendation (p. 132). 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. While still elected directly by their constituents, nonpartisan contested elections see judicial candidates run for office strictly as individuals rather than members of or representatives of political parties. 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. 4, 2010) (Impeachment of G. Thomas Porteous, Jr., Judge of the U.S. District Court for the Eastern District of Lousiana), https://www.congress.gov/congressional-report/111th-congress/house-report/427/1. The question of accountability likewise raises difficult questions about how to channel the publics legitimate interest in judges experience and judicial philosophy in a way that does not transform judges into ordinary politicians. 17. L. Rev. Advocates for the life tenure system believe it encourages judicial independence and decreases the likelihood of partisan influences. 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? Judges should not be politically elected, because it would be disastrous to have judges act as politicians do. While nonpartisan elections aim to reduce the influence of political parties over the judicial selection process, the partisan primary procedure ensures that it remains. 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 Diversityincluding racial, gender, socioeconomic, and professional diversityis vital to a well-functioning court system, one that draws from as broad a pool of talented lawyers as possible, fosters robust deliberation that reflects different life perspectives, and engenders confidence within the communities it serves. In the end, judicial "merit" can be political as well. What are the advantages and disadvantages of liberalism and radicalism? Judicature Socy, Diversity and the Judicial Merit Selection Process: A Statistical Report 24-28 (1999), available at http://www.judicialselection.us/uploads/documents/Diversity_and_the_Judicial_Merit_Se_9C4863118945B.pdf. Information regarding the commissioners and candidates 104 ) that typically accompanies research on merit selection commissions concepts of.... 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