merit selection of judges pros and cons

PBS is a 501(c)(3) not-for-profit organization. Merit selection advocates claim that it will get politics out of the process and focus only on the applicant's credentials. Judges often hear cases relating to high-profile issuesfrom reproductive rights to the death penalty. 11. 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. Before presenting his analyses, Goelzhauser provides a brief overview of the history of judicial selection in the states in Chapter 1. A merit selection/retention election approach could conceivably be reserved for statewide races and for urban counties with large populations. Greater transparency from states is clearly necessary for continued assessment of merit selection performance. Goelzhausers work sheds new light on judicial merit selection processes and raises important questions for future researchers. 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. 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. Some type of merit plan for selection of judges is utilized by 24 states and the District of Columbia. 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. Rather than glad-handing politicians to secure an appointment, the aspiring judge must appeal to the people he hopes to serve. Today, 33 states along with the District of Columbia use some form of merit selection.24. 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. Arguments against merit selection are: (1) it deprives citizens of their right of franchise; (2) it does not take politics out of judicial selection; (3) nominating commissioners are not . Not all areas elect them, though. You'll receive access to exclusive information and early alerts about our documentaries and investigations. States and would-be reformers should consider a new framework for judicial selection reform, rooted in what we know about how existing systems forward or impede important values, such as judicial independence, democratic legitimacy, and diversity on the bench. 2022 American Bar Association, all rights reserved. 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. 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. Alicia Bannon, Brennan Ctr. In Ohio, a justice on the campaign trail describes the states supreme court as a backstop for the states Republican governor and legislature.4. 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. 1. See Kathleen L. Barber, Ohio Judicial ElectionsNonpartisan Premises with Partisan Results, 32 Ohio St. L.J. An important first step, however, is to move past the debate over elections vs. merit selectionlooking at how judicial selection is currently structured in the states, and what we know about how various structures impact key values. 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. In just the past few years, state supreme courts, which are the final word on questions of state law, have struck down tort reform legislation in Arkansas, ordered Kansass state legislature to equalize funding for public schools, and declared Connecticuts death penalty law unconstitutional. 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. What solutions would you impose? 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. 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. While electing judges is not a flawless system, it is better than alternatives. What are five reasons to support the death penalty? Rsch. Tony A. Freyer, American Liberalism and the Warren Courts Legacy, in 27 Revs. 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. 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. Election: In nine states, judges run as members of a political party. 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. The only con I can see is that this takes some power away from the voters. 10. 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. See Matthew J. Streb, Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections 10 (NYU Press 2009). Variables such as longer length of judicial experience (up to a point) and receiving professional honors increase the probability of commission nomination. Although this goal isn't always possible because of the nature of a crime or a person's identity, it is possible to create . For example, while there is evidence that diverse nominating commissions are more likely to suggest a diverse slate of judicial candidates,21 in practice, many nominating commissions continue to be dominated by white men.22 On the election front, fundraising pressures can be a barrier to a more diverse bench, as can racial and gender bias. There are also normative questions about how to balance these values when they come into tension. 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. Judicature | Bolch Judicial Institute | 210 Science Drive | Durham, NC 27708-0362 | (919) 613-7073 | judicature@law.duke.edu 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. See State Judges Frequency Questionnaire, Justice at Stake 5 (2001), http://www.justiceatstake.org/media/cms/JASJudgesSurveyResults_EA8838C0504A5.pdf. 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. Ads routinely use political signals, such as touting a judges conservative values or identifying endorsements from groups like the National Rifle Association. Judges are subject to retention elections for six-year terms. Ciara Torres-Spelliscy et al., Brennan Ctr. A merit-based appointment system prevents voters from making this mistake. 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. Goelzhauser presents a comprehensive analysis of all state supreme court merit selection appointments between 1942 and 2016 to discern whether institutional design influences the quality and diversity of judicial appointees. 6. The theme this year is "Celebrate Your Freedom: Independent Courts Protect Our Liberties.". Most proposals fall into two categories. 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. 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). While judicial rulings have always beenand should befair game for criticism, courts are not meant to be governed by majority preferences. In my opinion, district attorneys and judges should not be popularly elected on regular, short terms. 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. 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. 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. Advocates for contested partisan judicial elections argue that judicial decisions do far more than just merely settle disputes; in actuality, they set policy.13 Rather than being decided in a vacuum, judicial decisions are built off each other, inextricably woven together as part of an ever-expanding legal framework. Elections make judges more democratically accountable David Dewold. 4, 54). . 2023. Who are the experts?Our certified Educators are real professors, teachers, and scholars who use their academic expertise to tackle your toughest questions. See Philip D. Oliver, Assessing and Addressing the Problems Caused by Life Tenure on the Supreme Court, 13 J. App. Sorry, we couldn't find what you're looking for. What are the pros and cons of electing judges? for State Cts., http://www.judicialselection.us/judicial_selection/index.cfm?state=OH. 1053 (2020). I would fear that a judge that is elected would owe a debt to his political supporters. 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. In some states that provide for elections, interim appointments are a centralyet under-scrutinizedaspect of the selection process, since judges routinely step down before the end of their terms so as to provide the governor with an appointment. 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. 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. Judges must follow their understanding of what the law requires, even if it is unpopular. Specifically, attorneys who are ideologically congruent with the appointing governor are more likely to apply for vacant judgeships (p. 87). In acknowledging this, merit selection posits that rather than leave the selection of judicial candidates up to an ill-informed public, the decision should instead reside with a qualified group of legal professionals. In the words of the late California Supreme Court Justice Otto Kaus, deciding controversial cases when you know you will be facing an election is like finding a crocodile in your bathtub when you go in to shave in the morning. Goelzhauser offers useful and practical suggestions for ways in which states can facilitate increased transparency, such as anonymizing applicant data. art. Its particular emphasis on the primary is of note though. 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). He offers detailed information regarding the commissioners and candidates. 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. Poly J. What are the pros and cons of "professional jurors?". 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. Since 2010, five states have seen new recordsincluding a new national record coming out of Pennsylvanias 2015 supreme court election. Rather than examining the constituents of state electing judges directly, we can instead shift our attention to how the majority of states react to merit selection. 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. For now, however, it is important to recognize the significant differences in how American judges are selected, and the pros and cons of each, and to continue to think hard about the best way to select judges going forward. for Justice Judicial Selection: An Interactive Map, http://judicialselectionmap.brennancenter.org/?court=Supreme (last visited Sept. 2, 2016). Retention elections, where judges are unopposed and face a yes-or-no vote, have started to show similar patterns: average spending per seat increased ten-fold from 2001-08 to 2009-14 (from $17,000 per seat to $178,000 per seat). Goelzhauser challenges the institutional homogeneity assumption (p. 104) that typically accompanies research on merit selection commissions. At the time of the drafting of the Arizona Constitution, the Progressive Party and movement was very influential in American politics. 17. Once a merit-based system is in place, all subsequent judges will have only the traits that allow them to sit on the bench. 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. These are just a few examples of how the selection of state court judges has become increasingly politicized, polarized, and dominated by special interestsparticularly in the 39 states that use elections as part of their system for choosing judges. One concern expressed about merit selection is the removal of direct public participation in the selection process, as compared to elections (p. 3). 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. "What are the pros and cons of the merit appointment system of selecting judges?" Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. 1. 17. Latest answer posted January 23, 2021 at 2:37:16 PM. Gerald C. Wright, Charles Adrian and the Study of Nonpartisan Elections, 61 Pol. 13. Over the course of 25 years, the commission consistently saw itself divided, with one wing representing small-firm plaintiffs lawyers and criminal defense attorneys and the other wing representing large-firm civil defense attorneys.25 And for merit systems where the governor selects the individual from names submitted by the commission, partisan politics undoubtedly are at play. See Rebekkah Stuteville, Judicial Selection in the State of Missouri: Continuing Controversies, 2 Mo. Goelzhausers research is particularly important now given that heated debates over the judiciary, such as in Iowa, are not likely to ebb under current levels of political polarization. , 61 Pol 23, 2021 at 2:37:16 PM appointment system prevents voters from making this mistake endorsements groups! I can see is that this takes some power away from the voters cases. Longer length of Judicial selection in State Courts 6-7 ( 2016 ) of selecting?... Is elected would owe a debt to his political supporters goelzhausers work sheds new light Judicial... On Judicial merit selection processes and raises important questions for future researchers up to point! Signals, such as touting a judges conservative values or identifying endorsements from groups like the Rifle... Are more likely to apply for vacant judgeships ( p. 104 ) that accompanies! 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