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. You'll receive access to exclusive information and early alerts about our documentaries and investigations. In the face of mounting evidence that courts capacity to provide basic fairness is at risk in many states, a host of bar associations, scholars, task forces, and legislators have suggested reforms.24 Yet these proposals have both struggled to gain traction and failed to address many of the most troubling aspects of how judicial selection is currently functioning. PUBLISHED BY: 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. 2023 eNotes.com, Inc. All Rights Reserved, https://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf. According to Goelzhauser, merit selection supporters argue that the use of commissioners with requisite legal experience reduces the influence of partisan and patronage considerations, which presumably leads to higher-quality judicial appointees and greater access to judicial office for traditionally underrepresented groups. The differing methods of judicial selection find themselves locked in a constant balancing act between competency and accountability. Guest columnists write their own views on subjects they choose, which do not necessarily reflect the opinions of this newspaper. In my opinion, district attorneys and judges should not be popularly elected on regular, short terms. 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. 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. In addition, otherwise qualified judicial candidates may avoid seeking positions altogether because of not wishing to engage in the politicking and campaigning that, as perceived by some, have little to do with judging disputes. See Philip D. Oliver, Assessing and Addressing the Problems Caused by Life Tenure on the Supreme Court, 13 J. App. 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. Fourteen states currently use merit selection with retention elections for supreme court seats, and several others use hybrid systems. While judicial rulings have always beenand should befair game for criticism, courts are not meant to be governed by majority preferences. U.S. magistrate judges as well as judges on the bankruptcy court, tax court, and the Court of Federal Claims and territorial judges are example of nonArticle III federal judges. Members always believe that are constantly in jeopardy of losing, so re-election becomes their exclusive goal. 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. 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 are the pros and cons of the merit appointment system of selecting judges?" eNotes.com will help you with any book or any question. 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. 763, 763 (1971). . MERIT SELECTION. The credentials that are to be examined and compared so as to send. 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. Merit selection went through a period of broad adoption in the 1960s and 1970s. Under this process, the Governor appoints new Justices from a list of three to six names submitted by a Judicial Nominating Commission. One concern expressed about merit selection is the removal of direct public participation in the selection process, as compared to elections (p. 3). On average, judges will earn between $180,000 and $270,000 per year. 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. In fact, increased transparency for information related to merit selection processes is Goelzhausers first design recommendation (p. 132). Since 2010, five states have seen new recordsincluding a new national record coming out of Pennsylvanias 2015 supreme court election. 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. 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. 24. See Rebekkah Stuteville, Judicial Selection in the State of Missouri: Continuing Controversies, 2 Mo. In Minnesota, North Dakota, and Georgia, for example, all current supreme court justices were initially appointed to the bench. Am. judges, who handle misdemeanors and lesser civil cases may be elected or appointed. Unfortunately, we (voters) often choose our elected officials based on superficial elements such as appearance, name, simple recognition rather than merit. Merit selection went through a period of broad adoption in the 1960s and 1970s. Even the best judges disagree with one another: look at the Supreme Court of the United States, which is filled with constitutional scholars from Ivy League law schools who have decades of experience as lawyers and judges, splitting 4-4-1 in the pivotal Obamacare case, National Federation of Independent Business v. Sibelius. While nonpartisan elections aim to reduce the influence of political parties over the judicial selection process, the partisan primary procedure ensures that it remains. In addition, how does merit selection affect the applicant pools for judicial vacancies? 14. 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. 5. Judges must follow their understanding of what the law requires, even if it is unpopular. In theory, these judges would be the best equipped to deal with the complicated questions of justice that judges see every day. 579, 640 (2005) (noting Professor Raoul Berger traced the phrase hold their Offices during good Behaviour to the [British] Act of Settlement of 1701 (which protected the independence of English judges by granting them tenure as long as they conduct[ed] themselves well, and provided for termination only through a formal request by the Crown of the two Houses of Parliament) and to earlier English traditions) (citing Raoul Berger, Impeachment of Judges and Good Behavior Tenure, 79 Yale L.J. . 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. In which areas do you think people's rights and liberties are at risk of government intrusion? The existence of this political pressure drives the list of the pros and cons of having a merit-based appointment system for the judges on the judiciary. 8. Its very hard not to dance with the one who brung you.13. Accessed 1 Mar. 2. 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. FLORIDA: Judges for the supreme court and district courts of appeal are chosen through a merit selection involving a nominating commission. 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). That said, the ensuing year saw a progressive majority at the states constitutional convention push through a proposal allowing primary nominations for elected offices. 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. Goelzhauser presents a novel and persuasive theory of expressive and progressive ambition in Chapter 4. Pros And Cons Of The Texas Judicial System. 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. Judges have a number of important responsibilities, but there are a lot of pros to the job - all of which you should know about. 1053 (2020). However, Goelzhauser also finds that women applicants are disadvantaged in terms of having their nominations forwarded by commissions to the governor. Judges are paid well because they are one of the highest positions within the legal system. In the words of Richard Neely, a retired chief justice of the West Virginia Supreme Court of Appeals, Its pretty hard in big-money races not to take care of your friends. 1133, 1133 (1997). 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. The Pros and Cons of Electing Judges The 2020 election year is well underway, which means you've probably been considering where to cast your vote. 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). David E. Pozen, The Irony of Judicial Elections, 108 Colum. Proponents add that elections affirm the electoral beliefs of candidates who present themselves for judicial positions. 16. 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. Judicial Selection in the States, Natl Ctr. 30. Pros and Cons of Various Judicial Selection Methods . Yet in all but three states, judges can serve multiple terms and must stand for election or reappointment, potentially putting their judicial records up for scrutiny. Depending on where you live, you might even be electing judges this year. 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. This has been enhanced by the process of running 'road shows' and other outreach events to broaden the spectrum of judges. It's time to renew your membership and keep access to free CLE, valuable publications and more. 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. 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. Elections make judges more democratically accountable David Dewold. 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. The decision to run for office entails substantial cost that may dissuade potential candidates. 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. 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. Both parties present a field candidate and the voters decide which to choose; however, this system is flawed. With retention elections for supreme court election North Dakota, and several others use hybrid systems government intrusion Commission... To the Governor appoints new Justices from a list of three to six submitted... Names submitted by a judicial Nominating Commission, how does merit selection went through a period of adoption..., judges will earn between $ 180,000 and $ 270,000 per year involving a Nominating Commission should not popularly... 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