of the U.S. Courts at 8 (of 8), https://www.uscourts.gov/sites/default/files/allauth.pdf (last visited June 6, 2021). Judicature Socy, Judicial Selection in the States: Appellate and General Jurisdiction Courts (2013). 19. "What are the pros and cons of the merit appointment system of selecting judges?" Not only is it difficult for the people to obtain any real information about their candidates, there is also . 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. Educators go through a rigorous application process, and every answer they submit is reviewed by our in-house editorial team. 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. Finally, he examines how the institutional design of merit selection affects committee capture, which could negatively affect merit selection performance. In recent decades, and particularly since 2000, state supreme court elections have become increasingly costly and politicized. Between 2000 and 2009, 20 of the 22 states that use contested elections to choose their supreme courts set spending records. Copyright 2023 Duke University School of Law. 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. Its very hard not to dance with the one who brung you.13. They can't. And the result is that some inexperienced and unqualified people make decisions that affect our lives. 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). While a handful of states moved from partisan to nonpartisan contested elections over the past decade, few states have adopted major changes in how they choose judges since the 1980s, and recent changes have not reflected any consistent trends.25, Even more importantly, merit selection raises its own problems. She received undergraduate and law degrees from Stanford University. 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. Ideally, being able to elect judges seems like a fair concept. Chicago Tribune. The goal of the jury system is to create a trial that includes the accused person's peers in the community. 265, 27475 (2008). Some type of merit plan for selection of judges is utilized by 24 states and the District of Columbia. Some critics argue elections create political biases which weaken judicial impartiality. The jury system works by using a group of people from the community. What solutions would you impose? 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 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. Lawyers Comm. The founders, with their fears of mob rule, saw that the early days of the United States selected its judges through appointments made at the behest of governors or state legislatures. The theme this year is "Celebrate Your Freedom: Independent Courts Protect Our Liberties.". 4. In Minnesota, North Dakota, and Georgia, for example, all current supreme court justices were initially appointed to the bench. for State Cts., http://www.judicialselection.us (last visited June 29, 2021); see also Nonpartisan Election of Judges, Ballotpedia, https://ballotpedia.org/Nonpartisan_election_of_judges (last visited June 29, 2021). Nonpartisan elections were adopted in an attempt to help restore the integrity of the courts while helping break party strangleholds, with Cook County, Illinois, becoming the first to implement the method in 1873.16 As of today, 13 states still rely on contested nonpartisan elections (Arkansas, Georgia, Idaho, Kentucky, Minnesota, Mississippi, Montana, Nevada, North Dakota, Oregon, Washington, West Virginia, and Wisconsin) to elect their supreme court justices.17. However, any judicial appointment system is rife with cons as well. 133 (1999). The goal is to use a process that picks the best judge or the most qualified and experienced. Hist. The only con I can see is that this takes some power away from the voters. 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. 2022 American Bar Association, all rights reserved. Jed Handelsman Shugerman, The Peoples Courts 7 (2012). List of the Pros of the Jury System. 763, 763 (1971). See About Federal Judges, U.S. 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). Sorry, we couldn't find what you're looking for. Bolch Judicial Institute
If that's a bad thing when it comes to our government representatives, it's a horrible thing for our judges. DOWNERS GROVE I agree that something should be done to improve the judicial selection . Merit selection went through a period of broad adoption in the 1960s and 1970s. FRONTLINE is a registered trademark of WGBH Educational Foundation. On the down side, critics indicate that judges should spend their time reducing the backlog of cases rather than campaigning for office, that elections force candidates to solicit campaign contributions from lawyers and possible litigants, and candidates may wind up deep in debt or may lack sufficient money to properly inform the voters of their merits. Voters are predominantly laypeople who live without an extensive knowledge of the law and what it means to be a good judge. 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. He also effectively relays the dialogue between commissioners about particular candidates and, when possible, provides the votes of individual commissioners. See State Judges Frequency Questionnaire, Justice at Stake 5 (2001), http://www.justiceatstake.org/media/cms/JASJudgesSurveyResults_EA8838C0504A5.pdf. 3. 9. The summary that follows is not comprehensive in discussing the various methods or positives or negatives for each method. 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 differing methods of judicial selection find themselves locked in a constant balancing act between competency and accountability. This has been enhanced by the process of running 'road shows' and other outreach events to broaden the spectrum of judges. Additionally, due to the costs involved, elections discourage many well-qualified attorneys from seeking judicial office, and the merit selection process generally results in a higher number of appointments of minority and female candidates. Judicature | Bolch Judicial Institute | 210 Science Drive | Durham, NC 27708-0362 | (919) 613-7073 | judicature@law.duke.edu
The second set of proposals has focused on judicial selection reform, typically urging states to replace contested elections with a merit selection system. PUBLISHED BY:
See Gregory L. Acquaviva & John. 26. Ads routinely use political signals, such as touting a judges conservative values or identifying endorsements from groups like the National Rifle Association. 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. D. Castiglione, Judicial Diversity on State Supreme Court, 39 Seton Hall L. Rev. See Torres-Spelliscy et al., supra note 20, at 1-2. As far as I am concerned, there are a lot of pros and really no cons that I think are valid concerns. Importantly, Goelzhauser notes that the time provided for public comment was limited in both the screening and interview stage, and those who spoke usually were connected to the candidates. Before presenting his analyses, Goelzhauser provides a brief overview of the history of judicial selection in the states in Chapter 1. eNotes Editorial, 11 Jan. 2018, https://www.enotes.com/homework-help/what-pros-cons-merit-appointment-system-selec-396472. 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. Once a merit-based system is in place, all subsequent judges will have only the traits that allow them to sit on the bench. The views expressed are solely those of the author. 20. 24. As Ted Olson, the former Solicitor General and a prominent litigator, observed: The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today.11, These conflicts may also extend beyond appearances. Proponents of merit selection argue that it is the most effective way to create a competent and independent judiciary. 895, 912-13 (1998); Jim Walker, The Politics of State Courts, in The Judicial Branch of State Government: People, Process, and Politics 171, 178 (Sean OHogan ed., 2006). 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. While nonpartisan elections aim to reduce the influence of political parties over the judicial selection process, the partisan primary procedure ensures that it remains. 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. Recent research suggests, for example, that campaign spending affects judges decisions on the bench.5 Yet other problems cut across selection methods, including a lack of diversity on the bench and evidence that concerns about job security impact judges decisions in controversial cases. 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 . 14. 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. There probably is no perfect way to select and retain judges, because we don't live in a perfect society. Another important pro of having a merit-based system of judicial appointments is that it takes the process out of the hands of voters, avoiding one of the most popular alternatives to judicial appointments. In 12 other states, judges are elected, but the elections are nonpartisan, which means the judges do not reveal their political affiliation. After 245 years, the United States has not adopted a single unified method with which to select judges. Prac. Tony A. Freyer, American Liberalism and the Warren Courts Legacy, in 27 Revs. 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. 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. 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. His discussion of the use of judicial selection in a variety of specifications at the federal level (i.e., for federal magistrate judges) and internationally illustrates that American states are not the only laboratories for institutional experimentation with merit selection. With executive and legislative races (both federally and in the states) tending to consume the lions share of the attention during election years, few voters can invest the time, energy, or resources to fully familiarize themselves with the entire roster of judicial candidates up for election.20 Critics also point to the fact that the realities of campaigning make it nearly impossible to prevent partisan politics (and politics more broadly) from playing a role in judicial elections. 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