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Misconduct Report: November 2014

Commission-selection, political appointment method of judicial selection

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Methods of judicial selection
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Commission selection, political appointment
Gubernatorial appointment
Legislative election
Partisan elections
Non-partisan elections
Retention election

The commission-selection, political appointment method of judicial selection, sometimes referred to as merit selection or the Missouri Plan, is a process by which the governor appoints judges with help from a commission or board. The process was loosely modeled after the method used to select federal judges, with the commission or board nominating candidates instead of the President.[1][2]

Thirty-four states and the District of Columbia currently use some form of merit selection.[3]

Method overview

The commission-selection, political appointment method usually involves a nominating commission which reviews the résumés of candidates for judicial office. This commission—composed of both lawyers and non-lawyers chosen by the state bar and/or executive branch—interviews and screens candidates for judicial positions. The commission then sends a short list of qualified candidates, usually between three and five names, to the governor for consideration.[4]

Within a pre-determined period of time, the governor must select and nominate a candidate from the list. Failure to nominate in the prescribed time period will put the decision back to the commission or, in some cases, the chief justice of the state's supreme court. Some states require additional confirmation from the legislature.[4]

Nominating commissions

States vary in the composition of their nominating commissions and the application of them.[1] These variations may include:

Composition

  • Number of commissions
  • Size of commission
  • Commissioner qualifications (lawyer, non-lawyer, judge)
  • How commissioners are appointed and by whom

Application

  • Type of judicial vacancies filled
  • Confidentiality of selections
  • Whether the governor is bound to the commission's recommendations
  • Whether legislative confirmation is required

Tables detailing these state-by-state variations can be found in this document prepared by the American Judicature Society.

Retention

Typically, after serving a specified initial term, a judge is evaluated for retention by the commission or by voters in a yes-no retention election. This allows the judge to be held accountable for his or her performance while serving on the bench. Judges then face a similar evaluation process at the end of each subsequent term.[5] For information on instances of failed retentions, see the Judicial turnover section below.

An exception to this norm is found in Vermont, where justices are retained by the state legislature rather than by popular vote.[5]

States using this method

Intermediate appellate and general jurisdiction courts

In selecting judges for the appellate and general jurisdiction courts, 34 states and the District of Columbia use some variation of merit selection. Of those states, 16 use the method exclusively, nine of them use it in combination with other methods and 10 use it only in filling midterm vacancies.[3][6]

Partisan election Non-partisan election Gubernatorial (G) or legislative (L) appointment Commission-selection, political appointment Combination of merit selection and other methods
  • Alabama
  • Illinois
  • Louisiana
  • New Mexico
  • Ohio
  • Pennsylvania
  • Texas
  • West Virginia
  • Arkansas
  • Georgia
  • Idaho
  • Kentucky
  • Michigan
  • Minnesota
  • Mississippi
  • Montana
  • Nevada
  • North Carolina
  • North Dakota
  • Oregon
  • Washington
  • Wisconsin
  • California (G)
  • New Jersey (G)
  • Virginia (L)
  • South Carolina (L)
  • Alaska
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Hawaii
  • Iowa
  • Maine
  • Maryland
  • Massachusetts
  • Nebraska
  • New Hampshire
  • Rhode Island
  • Utah
  • Vermont
  • Wyoming
  • Arizona
  • Florida
  • Indiana
  • Kansas
  • Missouri
  • New York
  • Oklahoma
  • South Dakota
  • Tennessee
Total: 8 states Total: 14 states Total: 4 states Total: 16 states Total: 9 states
Additionally, the following 10 states use merit selection only in filling midterm vacancies: Alabama, Georgia, Idaho, Kentucky, Minnesota, Montana, Nevada, New Mexico, North Dakota, and West Virginia.[3]

Courts of last resort

Twenty-four states and the District of Columbia use merit selection to select their high court justices. Comparing the following table to the table above, it can be seen that all states that use merit selection to appoint high court justices also use some form of the method to select their appellate and/or general jurisdiction judges.[3]

Partisan election Non-partisan election Gubernatorial (G) or legislative (L) appointment Commission-selection, political appointment
  • Alabama
  • Illinois
  • Louisiana
  • Michigan
  • New Mexico
  • Ohio
  • Pennsylvania
  • Texas
  • West Virginia
  • Arkansas
  • Georgia
  • Idaho
  • Kentucky
  • Minnesota
  • Mississippi
  • Montana
  • Nevada
  • North Carolina
  • North Dakota
  • Oregon
  • Washington
  • Wisconsin
  • California (G)
  • New Jersey (G)
  • South Carolina (L)
  • Virginia (L)
  • Alaska
  • Arizona
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Florida
  • Hawaii
  • Indiana
  • Iowa
  • Kansas
  • Maine
  • Maryland
  • Massachusetts
  • Missouri
  • Nebraska
  • New Hampshire
  • New York
  • Oklahoma
  • Rhode Island
  • South Dakota
  • Tennessee
  • Utah
  • Vermont
  • Wyoming
Total: 9 states Total: 13 states Total: 4 states Total: 25 states

History

The colonists brought over many traditions from England which were recycled for use in the early days of the United States. One of these was the tradition of appointing judges. However, as early as 1776, states began searching for alternative methods to select judges. Under Pennsylvania's original constitution, all judges were appointed to seven-year terms by an executive council made up of members elected from each of the state's counties.[7]

By the early 1800's, appointing judges had become increasingly unpopular. In 1832, Mississippi became one of the first states to select its judges by popular vote.[7] By the end of the 19th century, in an era when political corruption was a growing problem, a group of judges and lawyers formed the American Judicature Society. This national, non-partisan organization was formed with the intention of "securing and promoting an independent and qualified judiciary and a fair system of justice."[8] The merit selection system was one method the organization promoted for selecting judges.[9]

The idea of choosing judges using a non-partisan, commission selection process was first proposed in 1914 by Albert Kales, a co-founder of the American Judicature Society.[9] In 1940, Missouri became the first state to adopt what is now often referred to as a "merit selection" system, named at that time the "Nonpartisan Selection of Judges Court Plan." The method was approved by the voters in 1940 and was incorporated into Missouri's state constitution in 1945, as noted in Article V, Section 21.[10] Thus, this type of judicial selection process has been nicknamed the "Missouri Plan."[7]

Support

Proponents of this method of judicial selection have dubbed it "merit" selection ostensibly because such a method results in more qualified judges than judicial elections. Those who advocate for such a method also argue that the system protects judicial independence by insulating the judicial selection process from the influence of partisan politics. Unlike processes where judges must run for election and re-election, merit selection eliminates the need for judges to fundraise, advertise and make campaign promises which could cause them to make rulings based on outside influences rather than the law.[4]

[T]he framers of the U.S. Constitution set up a federal system that completely insulates judges, once on the bench, from political accountability. In the Federalist Papers, Alexander Hamilton said citizens “of every description” should value judicial independence because “no man can be sure that he may not be tomorrow the victim of a spirit of injustice.” As the framers of the Constitution clearly understood, a judiciary that can protect our constitutional rights without fear of political backlash guarantees freedom for all.[11]

—Billy Corriher, Center for American Progress Action Fund[12]

Merit selection's ability to shrink the role of money in judicial election campaigns is touted as a major selling point. A 2013 study by the American Constitution Society examined the effects of campaign contributions on judicial behavior and reported:

The empirical relationship between business contributions and justices' voting for business interests exists only in partisan and nonpartisan systems; there is no statistically significant relationship between money and voting in retention election systems.

[11]

—Associate Professor Joanna Shepherd of Emory University School of Law[13]

Criticisms

Not everyone agrees that merit selection is the best way to choose judges. Some opponents argue that merit selection is still a political process, since board members are usually chosen by the governor and/or bar association members. Those against merit selection also believe voters should be allowed to have a more direct voice in determining which judges will serve in the courts. Most merit selection commissions do not open their meetings to the public, and the laws in many states specify that the names of candidates applying for judgeships should remain confidential. Thus, opponents of merit selection also argue these systems should have more transparency.

There is a large body of social science research on state supreme courts and it shows that there is no real, observable difference between the judges chosen in merit selection states, and those chosen in the other states.[11]

—Professor Michael E. DeBow of the Samford University School of Law[14]

[I]t is hard to believe that the lawyers who select judges in merit systems care less about the decisional propensities of judicial candidates than do voters or elected officials.[11]

—Professor Brian T. Fitzpatrick of Vanderbilt University[15]

As the bar is an elite segment of society, states that give lawyers more power than their fellow citizens are rightly described as elitist.[11]

—Professor Stephen Ware of the University of Kansas[16]

Democratic principles are violated, however, when members of the commission are selected by 'a minority of the persons, i.e. lawyers in their area.' This, of course, is the core of the Missouri Plan – allowing the bar to select some of the commission and then declining to offset that bar power with confirmation by the senate or other popularly elected body. And it is this core that deprives the Missouri Plan of democratic legitimacy.[11]

—Professor Stephen Ware of the University of Kansas[16]

Pascal Calogero (Louisiana Supreme Court)

At his final State of the Judiciary Address in April of 2008, retiring Louisiana Supreme Court Chief Justice Pascal Calogero cautioned the Louisiana Legislature that any move by state lawmakers to introduce merit selection or other forms of judicial appointment would be a detriment to the Louisiana judiciary. Calogero believed that various forms of merit selection are built upon the incorrect notion that an elected judiciary is susceptible to political meddling and therefore poised for corruption.

My experience has been that the electorate, for the most part, has made wise and deliberate choices of those who are elected to serve in the state judiciary...I am also concerned that replacing an elective system with a selection or appointive system only takes away the choice from the people and places it in the hands of a few...It does not in any way remove the politics from the process, as some have argued.[11]

Pascal Calogero[17]

Fitzpatrick study

Professor Brian Fitzpatrick, of Vanderbilt University, claimed that the Missouri Plan has resulted in the nomination of more left-leaning judges, noting:

Of the fifty-four nominees in Missouri since 1995 who made any campaign contributions, 87% gave more to Democrats than Republicans, and only 13% gave more to Republicans than Democrats. Over the same time period, Democratic candidates in Missouri only received roughly 50% of the general election votes in state and federal House races.[15][11]

Judicial turnover

Retention elections, intended to hold judges accountable for their performance on the bench, very rarely result in judges being removed from office. In many states, judges up for retention are evaluated by the local bar association and recommended to the public as qualified or not qualified, but a poor recommendation does not necessarily result in the judge's removal.[18]

For state-by-state information about judicial turnover, see the Retention elections page.

Report on judicial evaluation awareness

A 1998 study by Kevin M. Esterling and Kathleen M. Sampson entitled "Judicial Retention Evaluation Programs in Four States: A Report with Recommendations" found that in Alaska and Colorado, only 58% and 55% of voters, respectively, said they were aware of available judicial performance evaluations. According to exit polls reported in the same study, Arizona and Utah voters indicated even less awareness.[19][20]

See also

External links

References

  1. 1.0 1.1 American Judicature Society, "Judicial Merit Selection: Current Status," 2011
  2. American Bar Association, "A “How-to” Series to Help the Community, the Bench and the Bar Implement Change in the Justice System," June 2008
  3. 3.0 3.1 3.2 3.3 American Judicature Society, "Judicial Selection in the States: Appellate and General Jurisdiction Courts," 2013
  4. 4.0 4.1 4.2 American Judicature Society, "Merit Selection: The Best Way to Choose Judges," archived October 2, 2014
  5. 5.0 5.1 The Federalist Society, "State Judicial selection: Once More Unto the Breach," March 20, 2008
  6. KU Scholarworks, "The Missouri Plan in National Perspective," September 28, 2009
  7. 7.0 7.1 7.2 American Judicature Society, "History of Reform Efforts," archived October 2, 2014
  8. American Judicature Society, "About AJS," archived November 19, 2014
  9. 9.0 9.1 American Judicature Society, "Selection FAQs," accessed December 9, 2013
  10. Your Missouri Courts, "About Your Courts, Meet Your Missouri Judges," accessed December 9, 2013
  11. 11.0 11.1 11.2 11.3 11.4 11.5 11.6 11.7 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
  12. Center For American Progress Action Fund, "Merit Selection and Retention Elections Keep Judges Out of Politics," November 1, 2012
  13. American Constitution Society, "Justice At Risk: An empirical analysis of campaign contributions and judicial decision - Key Findings," June 2013, accessed December 9, 2013 (See page 6)
  14. The Federalist Society, "State Judicial selection: Once More Unto the Breach," March 20, 2008
  15. 15.0 15.1 Missouri Law Review, "The Politics of Merit Selection, Vol. 74, Issue 3, Article 13," accessed December 9, 2013
  16. 16.0 16.1 Missouri Law Review, Vol. 74, Issue 3, "The Missouri Plan in National Perspective," accessed December 9, 2013
  17. The Advocate, "Justice cautions on appointing judges," April 9, 2008
  18. Aurora Sentinel, "Judicial ballot questions: You be the judge of who gets to stay on the bench," October 24, 2014
  19. Loyola of Los Angeles Law Review, "Judicial Retention Elections," 2013
  20. American Judicature Society, "Judicial Retention Evaluation Programs in Four States: A Report with Recommendations," accessed December 9, 2014