A study of the Nevada Supreme Court found that in 60 percent of civil cases decided in 2008-09, at least one of the litigants, attorneys, or firms involved in the case had contributed to the campaign of at least one justice.10 Weak recusal rules mean that judges face few barriers in hearing cases involving major financial supporters, particularly when that support takes the form of independent expenditures, which are less regulated. 18 (2016), available at http://gavelgap.org/pdf/gavel-gap-report.pdf. Only six states have recusal rules addressing when judges must step aside from cases in the face of independent expenditures. 25. 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. Considering these values offers new potential paths for reform. Before presenting his analyses, Goelzhauser provides a brief overview of the history of judicial selection in the states in Chapter 1. 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. 2022 American Bar Association, all rights reserved. While major political parties have been shut out of the merit selection system, the public is still allowed and encouraged to participate, voicing their opinions on judges when they are up for retention elections. 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. . of the U.S. Courts at 8 (of 8), https://www.uscourts.gov/sites/default/files/allauth.pdf (last visited June 6, 2021). 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. 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. 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. See Kate Berry, Brennan Ctr. 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. In their attempts to resolve this struggle, each proposed system of judicial selection further highlights their inherent strengths and flaws. The article summarizes five such methods, some of their history, as well as pros and cons. The chief con with appointing judges is that,. Once a merit-based system is in place, all subsequent judges will have only the traits that allow them to sit on the bench. 5. Merit selection acknowledges and accounts for the thought that knowing what individual character traits and characteristics comprise a qualitatively good judicial candidate are not necessarily something within the public sphere of knowledge. Merit selection systems typically call for the use of retention elections, which have become increasingly high-cost and politicized and put troubling pressures on judges deciding controversial cases. 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. While there is growing recognition of the problems facing state courts, many of the proposed solutions have not been fully responsive to these challenges. One concern expressed about merit selection is the removal of direct public participation in the selection process, as compared to elections (p. 3). List of the Pros of the Jury System. _ Gerrie Bishop is the judicial staff attorney for the 5th Judicial Circuit in Brooksville. 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. While still elected directly by their constituents, nonpartisan contested elections see judicial candidates run for office strictly as individuals rather than members of or representatives of political parties. 1. 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. Educators go through a rigorous application process, and every answer they submit is reviewed by our in-house editorial team. U.S. Const. 12. 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. But no state has moved from contested elections to a merit selection system in more than 30 years. The pros are numerous, but what they boil down to is that you want your judges to make their decisions based on the law, not based on what public opinion says or what people who can contribute lots of money to campaigns think. Michael ODonnell, Commander v. Chief: The Lessons of Eisenhowers Civil-Rights Struggle with His Chief Justice Earl Warren, The Atl. As the purpose of a judicial system is impartial interpretation of the law, merit is everything. A distorted pool can lead to distorted merit selection outcomes. Depending on where you live, you might even be electing judges this year. The way we select judges has a profound impact on the kinds of courts, judges, and, ultimately, justice that we have in our country. Gerald F. Uelmen, Crocodiles in the Bathtub: Maintaining the Independence of State Supreme Courts in an Era of Judicial Politicization, 72 Notre Dame L. Rev. Judicature | Bolch Judicial Institute | 210 Science Drive | Durham, NC 27708-0362 | (919) 613-7073 | judicature@law.duke.edu III, 1 (The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. Copyright 2023 Duke University School of Law. 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. 3. 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). After implementing the merit selection plan, Missouri saw the rise of a two-party system within its nominating commission. for Justice, Improving Judicial Diversity 4 (2d ed. Pros and Cons of Various Judicial Selection Methods . Pros Cons Judges who are appointed are more likely to be highly qualified . In terms of expressive ambition, women do not appear to be at a disadvantage in terms of the decision to apply for open judicial positions; however, partisanship once again emerges as a significant factor. 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). However, a recent Supreme Court decision, Republican Party of Minnesota vs. White, affirmed the right of judges to speak on these issues. Finally, he examines how the institutional design of merit selection affects committee capture, which could negatively affect merit selection performance. 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. The jury system works by using a group of people from the community. Liberals, on the other hand, favor judges like Justice Ginsburg or Sotomayor, who are willing to expand the language of the Constitution to "create" civil rights that are not mentioned in the Constitution but which are clearly "meant" to be there. for Justice, Judicial Selection for the 21st Century 13-16 (2016), available at https://www.brennancenter.org/publication/judicial-selection-21st-century. Democrats described the move as a power grab. The impact of this change is yet to be seen; however, Goelzhausers discussion in Judicial Merit Selection: Institutional Design and Performance for State Courts provides a much-needed theoretical and empirical lens through which to examine the motivations and potential consequences of such institutional adjustments. Pros And Cons Of The Texas Judicial System. 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. Several of the most serious threats to equal justice stem from the growing politicization of judicial elections. Unlike a traditional nonpartisan election, the partisan primary allows for a more curated list of judicial candidates. Election: In nine states, judges run as members of a political party. The concern is that members of nominating commissions may represent special interests and may not be drawn from all segments of society. eNotes.com will help you with any book or any question. 24. Due to the nature of the Senate confirmation process, past nominees have tended to skew more toward the political center as a way to increase the nominees chance of receiving a simple majority of the vote.4 From there, unless their actions result in impeachment and conviction (the most recent removal from the bench being G. Thomas Porteous Jr. of Louisiana under charges of bribery and perjury),5 federal judges are free to decide cases without fear of political retribution. What are the pros and cons of being a probation officer. 22. Goelzhauser provides clear empirical measures for his concepts of interest. & Process 11 (2012). . 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. 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. Each has its advantages and disadvantages. 2023 eNotes.com, Inc. All Rights Reserved, https://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf. 23. States have also lagged in adopting either reform. One particularly interesting aspect of the narrative in Chapter 2 involves Goelzhausers discussion of the public comment period during the commissions screening of applicants (p. 26). What is known as the Ohio method of judicial selection presents a unique hybridization of both contested partisan and contested nonpartisan judicial elections. 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. Thirty-eight states use elections as part of their selection process at the supreme court level. The summary that follows is not comprehensive in discussing the various methods or positives or negatives for each method. Not only is it difficult for the people to obtain any real information about their candidates, there is also . The Case for Partisan Judicial Elections, Federalist Socy (2003), https://fedsoc.org/commentary/publications/the-case-for-partisan-judicial-elections. There are also normative questions about how to balance these values when they come into tension. Electing judges still bring in partisanship. 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. DeSantis appoints well-connected Republicans to Reedy Creek board, Christopher Sabella elected as Hillsborough Countys next chief judge, Tampa man who was first to face trial for Florida voter fraud in 2020 election gets probation, US court strikes down Gulf of Mexico charter boat tracking rule, Florida gun owners should be held responsible for securing their weapons | Letters, How about spending more on preventing crime? Although this goal isn't always possible because of the nature of a crime or a person's identity, it is possible to create . 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. /content/aba-cms-dotorg/en/groups/professional_responsibility/publications/professional_lawyer/2016/volume-24-number-1/rethinking_judicial_selection, The Professional Lawyer, Volume 24, Number 1, http://www.nytimes.com/2006/10/01/us/01judges.html?pagewanted=all, http://www.greenbag.org/ v13n1/v13n1_ifill.pdf, http://newpoliticsreport.org/app/uploads/JAS-NPJE-2013-14.pdf, http://www.acslaw.org/ACS%20Justice%20at%20Risk%20(FINAL)%206_10_13.pdf, https://www.brennancenter.org/sites/default/files/publications/Rethinking_Judicial_Selection_State_Courts.pdf, https://www.brennancenter.org/publication/new-politics-judicial-elections-2011-12, http://www.judicialselection.us/uploads/documents/AJS_NV_study_FINAL_A3A7D42494729.pdf, http://www.brennancenter.org/publication/new-politicsjudicial-elections-2000-2009-decade-change, http://www.justiceatstake.org/media/cms/JASJudgesSurveyResults_EA8838C0504A5.pdf, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1386&context=dlj, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1409&context=dlj, https://www.brennancenter.org/publication/how-judicial-elections-impact-criminal-cases, http://gavelgap.org/pdf/gavel-gap-report.pdf, http://www.afj.org/wp-content/uploads/2014/11/Professional-Diversity-Report.pdf, https://www.brennancenter.org/sites/default/files/legacy/Improving_Judicial_Diversity_2010.pdf, http://www.judicialselection.us/uploads/documents/Diversity_and_the_Judicial_Merit_Se_9C4863118945B.pdf, https://www.opensocietyfoundations.org/sites/default/files/answering_20050923.pdf, https://www.brennancenter.org/publication/judicial-selection-21st-century, http://judicialselectionmap.brennancenter.org/?court=Supreme. 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