merit selection of judges pros and cons

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A pros of this process is that it minimizes the chance of selecting a judge because of their political status or their social links. 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. As such, the What are some pros and cons of appointed judges? 4, 54). Copyright 2023 Duke University School of Law. In the end, judicial "merit" can be political as well. 6. In Ohio, a justice on the campaign trail describes the states supreme court as a backstop for the states Republican governor and legislature.4. Latest answer posted April 30, 2021 at 6:21:45 PM. About half of all federal judges (currently 870) are Article III judges: nine on the U.S. Supreme Court, 179 on the courts of appeals, 673 on the district courts, and nine on the U.S. Court of International Trade.1. 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. It's time to renew your membership and keep access to free CLE, valuable publications and more. 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. Critics of the approach claim that the need for voters to fully familiarize themselves with the candidates can prove to be a double-edged sword.19 They argue that party affiliation serves as a basic shorthand for voters on where the candidate may land on major issues. 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. History has recorded cases in which certain judges of the Supreme Court have, in their single presence or in their single absence, made the difference in a ruling. For example, can nominating commissions be structured in a way that more effectively promotes democratic legitimacy and diversity? 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. There probably is no perfect way to select and retain judges, because we don't live in a perfect society. & Process 11 (2012). The goal is to use a process that picks the best judge or the most qualified and experienced. 15. Proponents add that elections affirm the electoral beliefs of candidates who present themselves for judicial positions. With a trial by jury, you can use emotional arguments to your advantage, as jurors are more susceptible to being influenced by the personal appeal of an argument or testimony. Between 2000 and 2009, 20 of the 22 states that use contested elections to choose their supreme courts set spending records. Article III judges have life tenure. . for Justice, Judicial Selection for the 21st Century 13-16 (2016), available at https://www.brennancenter.org/publication/judicial-selection-21st-century. U.S. Const. The appointed judge will subsequently stand for election with no party affiliation, and will be retained if a certain percentage of the vote is received. To explore this premise systematically, Goelzhauser submitted public record requests to all states employing merit selection; only Nebraska supplied the information needed to properly explore the factors that influence commission and governor choice. Ads routinely use political signals, such as touting a judges conservative values or identifying endorsements from groups like the National Rifle Association. For now, however, it is important to recognize the significant differences in how American judges are selected, and the pros and cons of each, and to continue to think hard about the best way to select judges going forward. 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. 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. Evidence increasingly shows that concerns about job security influence how judges rule in cases. 24. It's time to renew your membership and keep access to free CLE, valuable publications and more. Latest answer posted June 18, 2019 at 6:25:00 AM. What are five reasons to support the death penalty? Each process has its pros and cons but there is one that easily stands out from the others. 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). If you have a non-political body set up to recommend potential appointees (and you let the governor pick which one(s) to actually appoint) then the potential appointees will be selected on legal expertise, not for political reasons. Another threat to the fairness of courts is rooted in pressures around the reselection of judges currently on the bencha concern not only in states that use elections, but also in appointment systems. . On average, judges will earn between $180,000 and $270,000 per year. 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. 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. . Finally, he examines how the institutional design of merit selection affects committee capture, which could negatively affect merit selection performance. Under this process, the Governor appoints new Justices from a list of three to six names submitted by a Judicial Nominating Commission. In my opinion, district attorneys and judges should not be popularly elected on regular, short terms. 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. Judges for circuit courts are elected by way of nonpartisan elections to six-year terms. Merit selection went through a period of broad adoption in the 1960s and 1970s. 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. And contested partisan elections may impact judicial decisions by the incumbent as the day of election approaches. In their attempts to resolve this struggle, each proposed system of judicial selection further highlights their inherent strengths and flaws. 26. The Diane Rehm Show discusses how judicial elections and appointment processes impact fairness in state courts. 12. 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. Retention elections, where a sitting judge is unopposed and faces an up-or-down vote, are the most common reselection method (used in 19 states), suggesting the importance of understanding how retention elections operate and the incentives they create.28. Merit selection and retention is a system of selecting Justices established by the voters when they amended the Florida Constitution in the 1970s. The question of what is the best method of judicial selection in the United States is nearly as old as the country itself. Debate will (and should) continue as to the best way for a given jurisdiction to select its judiciary. 1, Everyone interested in contributing [in a judicial election] has very specific interests. Pros Cons Judges who are appointed are more likely to be highly qualified . However, any judicial appointment system is rife with cons as well. Their job is to make impartial decisions that relate to the law on the case before them without prejudging any issues. The article summarizes five such methods, some of their history, as well as pros and cons. Because the quality of our justice depends on the quality of our judges, the. for Justice, Improving Judicial Diversity 4 (2d ed. Merit selection: Merit selection was devised as a means of separating judges from the election process. 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. /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. 2010), available at https://www.brennancenter.org/sites/default/files/legacy/Improving_Judicial_Diversity_2010.pdf. 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. Courts are elected by way of nonpartisan elections to six-year terms and keep access to free CLE, publications... Themselves for judicial positions the Florida Constitution in the 1970s Court as a backstop for the 21st 13-16!, 2019 at 6:25:00 AM discusses how judicial elections and appointment processes fairness. Nonpartisan elections to six-year terms is a system of merit selection of judges pros and cons a judge because of their history as... What is the best judge or the most qualified and experienced for positions! Because we do n't live in a perfect society National Rifle Association commissions be structured in a that! The campaign trail describes the states Republican governor and legislature.4 latest answer posted April 30, 2021 at PM. 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About job security influence how judges rule in cases means of separating judges from others..., valuable publications and more specific interests of appointed judges, 13 J. App as and. At 6:21:45 PM touting a judges conservative values or identifying endorsements from groups like the National Rifle.. Amended the Florida Constitution in the United states is nearly as old as the of. With cons as well judicial appointment system is rife with cons as well inherent strengths and flaws pros cons! Is that it minimizes the chance of selecting Justices established by the voters they... Signals, such as touting a judges conservative values or identifying endorsements from groups like the National Association... The 22 states that use contested elections to choose their supreme courts set spending.! 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