See Philip D. Oliver, Assessing and Addressing the Problems Caused by Life Tenure on the Supreme Court, 13 J. App. In Ohio, a justice on the campaign trail describes the states supreme court as a backstop for the states Republican governor and legislature.4. The way we select judges has a profound impact on the kinds of courts, judges, and, ultimately, justice that we have in our country. Rather than glad-handing politicians to secure an appointment, the aspiring judge must appeal to the people he hopes to serve. Hist. 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. 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. Instead of the judicial branch reflecting the opinion of "the people," this results in the judicial branch reflecting the opinion of whoever gets to make the appointment. See generally Kevin Costello, Supreme Court Politics and Life Tenure: A Comparative Inquiry, 71 Hastings L.J. Doing so, proponents claim, ultimately allows for the most qualified candidates to join the judiciary. Their job is to make impartial decisions that relate to the law on the case before them without prejudging any issues. 10. Presumably, these results would vary depending on which party is dominant in state politics. State courts have a profound impact on a states legal and policy landscape and, in turn, on peoples lives. Off. One concern expressed about merit selection is the removal of direct public participation in the selection process, as compared to elections (p. 3). 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. Judges of the supreme Court, and all other Officers of the United States.. Variables such as longer length of judicial experience (up to a point) and receiving professional honors increase the probability of commission nomination. 11. 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. 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. I highly recommend Judicial Merit Selection: Institutional Design and Performance for State Courts, as this work will be of great interest to students and scholars of judicial politics, comparative institutionalists, legal scholars, transparency advocates, and state officials. See Kathleen L. Barber, Ohio Judicial ElectionsNonpartisan Premises with Partisan Results, 32 Ohio St. L.J. 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? The views expressed are solely those of the author. In theory, these judges would be the best equipped to deal with the complicated questions of justice that judges see every day. 1475, 1478 (1970)). Pros And Cons Of Re Elections One of members of congress's main goal is to become re elected. Goelzhauser also explains that the lawyer-layperson balance of the committee itself varies by state (p. 109). 21. What are the strengths and weakness of the legislative branch? There are also normative questions about how to balance these values when they come into tension. Goelzhauser offers useful and practical suggestions for ways in which states can facilitate increased transparency, such as anonymizing applicant data. Finally, he examines how the institutional design of merit selection affects committee capture, which could negatively affect merit selection performance. 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. Tony A. Freyer, American Liberalism and the Warren Courts Legacy, in 27 Revs. 2022 American Bar Association, all rights reserved. 23. In the end, judicial "merit" can be political as well. 17. Both parties present a field candidate and the voters decide which to choose; however, this system is flawed. In many states today, judicial selection is not working. This is no easy task. 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. . While nonpartisan elections aim to reduce the influence of political parties over the judicial selection process, the partisan primary procedure ensures that it remains. Accessed 1 Mar. 579, 580 (2005). For example, when a judge faces a million-dollar campaign attacking a decision on the bench, neither public financing nor recusal can remedy the pressure on this and other judges worrying about similar attacks during the next election. for State Cts., http://www.judicialselection.us/judicial_selection/index.cfm?state=OH. Q. Pros and Cons of Various Judicial Selection Methods . And the promise of higher-quality judges, greater diversity, and reduced partisanship seems to be highly dependent on whether the merit selection applicant pool is somehow distorted (p. 79). 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. But there is far more agreement on the problems associated with judicial elections than on potential reforms. See Brennan Ctr. 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. Across the country, state courts are facing challenges to their basic fairness and legitimacy, many of which are tied to states systems for choosing judges. These methods are as follows: executive appointment, election, and merit selection. Before presenting his analyses, Goelzhauser provides a brief overview of the history of judicial selection in the states in Chapter 1. eNotes.com will help you with any book or any question. for Civil Rights Under Law, Answering the Call for a More Diverse Judiciary: A Review of State Judicial Selection Models and Their Impact on Diversity 10 (2005), available at https://www.opensocietyfoundations.org/sites/default/files/answering_20050923.pdf. 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. 4. Moving past existing debates opens up the possibility of new selection models better suited to addressing the challenges facing state courts today. They can't. And the result is that some inexperienced and unqualified people make decisions that affect our lives. 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. What is the difference between unitary and federal systems? Electing judges still bring in partisanship. September 16, 2012. Partisan Election (current system) Pros: Voters have a direct say in judges who decide cases that have a huge . The article summarizes five such methods, some of their history, as well as pros and cons. 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. In the end, then, there is not really an objective "merit" that can be the basis for a "merit-based" method of appointing judges. Merit selection: Merit selection was devised as a means of separating judges from the election process. In response to his public records requests for information such as lists of applicants by vacancy and lists of commission nominees, he notes, most states reported discarding the relevant information or having laws exempting [the lists] from disclosure (p. 57). 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. of the U.S. Courts at 8 (of 8), https://www.uscourts.gov/sites/default/files/allauth.pdf (last visited June 6, 2021). Copyright 2023 Duke University School of Law. Using quantitative analyses, Chapter 3 explores why commissions and governors nominate and appoint particular applicants. 7 (Summer/Fall 2014), https://www.lindenwood.edu/files/resources/stuteville.pdf (last visited June 29, 2021). Unlike a traditional nonpartisan election, the partisan primary allows for a more curated list of judicial candidates. You'll receive access to exclusive information and early alerts about our documentaries and investigations. 763, 763 (1971). 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 Kate Berry, Brennan Ctr. Goelzhausers work sheds new light on judicial merit selection processes and raises important questions for future researchers. . See Joanna M. Shepherd, Money, Politics, and Impartial Justice, 58 Duke L.J. It is, however, intended to provide a high-level discussion for the various methods (some of which are well-known nationally, while some are not), some perceived benefits and downfalls of each, and some history for each along the way. He also effectively relays the dialogue between commissioners about particular candidates and, when possible, provides the votes of individual commissioners. L. Rev. Chapter 2 provides a vivid picture of commission deliberations during the vacancy stage. You left off the third - and best choice -- appointment followed by retention elections. Elections make judges more democratically accountable David Dewold. Only six states have recusal rules addressing when judges must step aside from cases in the face of independent expenditures. Jed Handelsman Shugerman, The Peoples Courts 7 (2012). This has been enhanced by the process of running 'road shows' and other outreach events to broaden the spectrum of judges. Proponents also argue that the apolitical nature of the nominating commission ensures that party politics are effectively eliminated, or at least significantly diminished, from the decision. 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. By Andrew J. Clark. In recent decades, and particularly since 2000, state supreme court elections have become increasingly costly and politicized. 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. Party voters who participate in their respective primaries can seek to use party affiliation to ensure that the candidates who best typify their values can move forward to the general election. 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