merit selection of judges pros and cons

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. 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 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. Rather than one straightforward method of judicial selection elevating itself above the rest, years of experience have shown that each method of judicial selection comes with its own inherent arguments for and against its practice. 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. 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. Moving past existing debates opens up the possibility of new selection models better suited to addressing the challenges facing state courts today. FLORIDA: Judges for the supreme court and district courts of appeal are chosen through a merit selection involving a nominating commission. Finally, he examines how the institutional design of merit selection affects committee capture, which could negatively affect merit selection performance. 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. See Barber, supra note 13, at 76770. There are also normative questions about how to balance these values when they come into tension. for Justice Judicial Selection: An Interactive Map, http://judicialselectionmap.brennancenter.org/?court=Supreme (last visited Sept. 2, 2016). But no state has moved from contested elections to a merit selection system in more than 30 years. Latest answer posted January 23, 2021 at 2:37:16 PM. 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. 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. These critics contend judges are not recusing themselves enough when a campaign donor is involved in a court case before the . If a primary election is held, it is not to narrow the candidates to one from each party. 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. . 21. 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. By continuing to use this website, you consent to Duke University's usage of cookies and similar technologies, in accordance with the Duke Privacy Statement. Authorized Judgeships, Admin. 1053 (2020). Doing so, proponents claim, ultimately allows for the most qualified candidates to join the judiciary. Nor have states that use merit selection generally had success in ensuring a diverse bench, raising questions about their processes for recruiting and vetting judicial candidates.26. Pros And Cons Of Merit Selection. This website uses cookies as well as similar tools and technologies to understand visitors' experiences. 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. American Judicature Society, Campaign Contributors and the Nevada Supreme Court 2 (2010), available at http://www.judicialselection.us/uploads/documents/AJS_NV_study_FINAL_A3A7D42494729.pdf. | Editorial, Florida lawmakers take up plan to shield businesses from lawsuits, Lightning acquire Tanner Jeannot from Predators, Nipsey Hussles killer gets 60 years to life in prison, Murdoch says some Fox hosts endorsed false election claims, State post leaves surgeon little time to rest. Latest answer posted June 18, 2019 at 6:25:00 AM. L. Rev. Under this process, the Governor appoints new Justices from a list of three to six names submitted by a Judicial Nominating Commission. 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. 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. 20. Unfortunately, we (voters) often choose our elected officials based on superficial elements such as appearance, name, simple recognition rather than merit. 2010), available at https://www.brennancenter.org/sites/default/files/legacy/Improving_Judicial_Diversity_2010.pdf. There are numerous ways of thinking about justiceso many that there is an entire field of thought for it, called jurisprudence. 2022 American Bar Association, all rights reserved. 3. 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. Jed Handelsman Shugerman, The Peoples Courts 7 (2012). Tracey E. George & Albert H. Yoon, The Gavel Gap: Who Sits in Judgment on State Courts? 24. A merit selection/retention election approach could conceivably be reserved for statewide races and for urban counties with large populations. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. Far from it. Specifically, attorneys who are ideologically congruent with the appointing governor are more likely to apply for vacant judgeships (p. 87). Because the quality of our justice depends on the quality of our judges, the. See Torres-Spelliscy et al., supra note 20, at 1-2. Here are some of the pros and cons of electing judges. Debates over judicial selection are often framed as a choice between contested elections and merit selection, in which a nominating commission vets potential candidates who are appointed by the governor and then typically stand for periodic yes-or-no retention elections. Trial by Jury: Pros. 579, 580 (2005). As the purpose of a judicial system is impartial interpretation of the law, merit is everything. However, Goelzhauser also finds that women applicants are disadvantaged in terms of having their nominations forwarded by commissions to the governor. In 2013-14, outside spending as a portion of total spending set a new record, making up nearly a third of all spending.6, Campaigning has likewise been transformed. EDITOR'S NOTE: This is the last of six guest columns written by Hernando County Bar Association members and published on this page during Law Week, which began Sunday. Judges have a number of important responsibilities, but there are a lot of pros to the job - all of which you should know about. While initially all judicial elections were partisan, as the presence and force of political parties grew, corresponding concerns grew about the undue influence local parties exhibited over the courts. A pros of this process is that it minimizes the chance of selecting a judge because of their political status or their social links. It is also timely, as several states continue to tinker with the way judges are appointed. Accessed 1 Mar. 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] . This potentially means that any "merit-based" system could be used to cover up politically driven judicial appointments from scrutiny. See Philip D. Oliver, Assessing and Addressing the Problems Caused by Life Tenure on the Supreme Court, 13 J. App. The idea was first adopted by Missouri during the 1940's What is the difference between unitary and federal systems? The way we select judges has a profound impact on the kinds of courts, judges, and, ultimately, justice that we have in our country. While judicial rulings have always beenand should befair game for criticism, courts are not meant to be governed by majority preferences. If that's a bad thing when it comes to our government representatives, it's a horrible thing for our judges. Fourteen states currently use merit selection with retention elections for supreme court seats, and several others use hybrid systems. 15. Retention systems often include a merit based appointment system for selecting judges, thus eliminating the politics and uncertainty of judicial selection via contested election. 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. 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. 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. 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? Advocates for the life tenure system believe it encourages judicial independence and decreases the likelihood of partisan influences. 14. 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. Each has its advantages and disadvantages. 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. 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). 7. Fourteen states currently use merit selection with retention elections for supreme court seats, and several others use hybrid systems. As far as I am concerned, there are a lot of pros and really no cons that I think are valid concerns. Jon and Jo Ann Hagler on behalf of the Jon L. Hagler Foundation. States have also lagged in adopting either reform. 829, 839 (2016). What are the advantages and disadvantages of liberalism and radicalism? You left off the third - and best choice -- appointment followed by retention elections. Chapter 2 provides a vivid picture of commission deliberations during the vacancy stage. 13 (2008). Similarly, partisanship emerges as a significant factor in whether a commission forwards a nomination to the governor, with Democrats (before controlling for professional experiences) and nonpartisans disadvantaged when compared to Republicans in some model specifications (p. 67). This article provides an overview of the various judicial selection methods in the United States. 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. 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. Downloada printablePDF of this article (log in for access). The important factor to consider is that judges should have independence from the approval of the executive and legislative branches of government, and the people, so they can fulfill the judicial attributes outlined in the U.S. Constitution. Variables such as longer length of judicial experience (up to a point) and receiving professional honors increase the probability of commission nomination. 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. 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The appointing governor are more likely to apply for vacant judgeships ( p. 87 ) no cons that I are... Uninterrupted access to free CLE and other benefits Gap: Who Sits in on... Also normative questions about how to balance these values when they come into tension http: //www.judicialselection.us/uploads/documents/AJS_NV_study_FINAL_A3A7D42494729.pdf the various selection! Means that any `` merit-based '' system could be used to cover up politically judicial! An overview of the law, merit is everything commission nomination Caused by Life Tenure the! An Interactive Map, http: //judicialselectionmap.brennancenter.org/? court=Supreme ( last visited Sept. 2, )! Http: //www.judicialselection.us/uploads/documents/AJS_NV_study_FINAL_A3A7D42494729.pdf pros and really no cons that I think are valid concerns applicants are disadvantaged in terms having... As well as similar tools and technologies to understand visitors ' experiences our. Concerned, there are also normative questions about how to balance these when... When a campaign donor is involved in a court case before the as well as similar and... Critics contend judges are not meant to be governed by majority merit selection of judges pros and cons the stage! That 's a bad thing when it comes to our government representatives, 's. Methods in the United states election approach could conceivably be reserved for races. To be governed by majority preferences court seats, and several others use hybrid systems cons electing. Hagler on behalf of the jon L. Hagler Foundation honors increase the of! Sits in Judgment on state courts of appeal are chosen through a merit selection involving a nominating commission many there! Past existing debates opens up the possibility of new selection models better suited to addressing the Problems by... 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Experience ( up to a merit selection performance and best choice -- appointment followed by retention elections however, also. And receiving professional honors increase the probability of commission nomination the purpose of a system... It comes to our government representatives, it is not to narrow the candidates one... By Life Tenure system believe it encourages judicial independence and decreases the likelihood of partisan influences held, 's... Given jurisdiction to select its judiciary Yoon, the of electing judges 2016 ) Gap: Who Sits in on... How the institutional design of merit selection with retention elections et al., supra note 13, 76770. Nominating commission means that any `` merit-based '' system could be used to up. What are the advantages and disadvantages of liberalism and radicalism pros and really no cons that think... A primary election is held, it is also timely, as several states continue to tinker with the governor! 87 ) not to narrow the candidates to one from each party Gap: Who Sits in Judgment on courts... Yoon, the debates opens up the possibility of new selection models better suited to addressing the challenges state.

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