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 is sometimes referred to as merit selection or the Missouri Plan. Either term describes the process of choosing judges by means other than popular election. 33 states currently use some form of "merit selection." The merit selection process was modeled after the process used to select federal judges. However, the commission or board nominates candidates, instead of the President.

Mechanics

So-called "merit" selection usually involves a nominating commission which reviews the résumés of candidates for judicial office. This commission--composed of both lawyers and non-lawyers (often chosen by the Executive branch)--interviews and screens candidates for judicial positions, and then sends a short list of acceptable candidates--usually between three and five names--to the governor. The governor will then have a pre-determined period of time with which to select and nominate a candidate from the list. Failure to nominate in the prescribed time period will put the decision back to either the commission or, in some cases, the chief justice of the state's supreme court. In some cases, the legislature may be required to confirm the governor's choice.[1]

Retention

Generally, after serving a specified initial term, a judge is evaluated for retention by the commission, or voters in a retention election (without challengers). Voters are asked whether to retain the judge or not. This allows the commission, or voters, to evaluate a judge's performance once they have had a chance to serve on the bench. Judges then face a similar evaluation process whenever their term expires. In Vermont, justices are retained by state legislatures rather than by voters.[2]

States using this method

While over 30 states currently use some elements of the Missouri Plan, or merit selection, to select judges for some courts, several states use the process for selecting judges at both the trial and appellate court levels. These include:

  • Alaska
  • Arizona
  • Colorado
  • Florida
  • Indiana
  • Iowa
  • Kansas
  • Missouri
  • Oklahoma
  • Nebraska
  • South Dakota
  • Tennessee
  • Wyoming[3]

=Selection for courts of last resort

States that choose state supreme court justices (court of appeals judges in New York and Maryland) using this method are:

Six-year terms

Eight-year terms

Ten-year terms

Twelve-year terms

Fourteen-year terms

Life terms

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, instead of the law.[1]

[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.[4]

—Billy Corriher, Associate Director of Research for Legal Progress at the Center for American Progress Action Fund[5]

Cutting down on the increasing amount of money involved in judicial election campaigns is used as a key argument for merit selection. 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.[6][4]

Criticisms

Not everyone agrees that merit selection is the best way to choose judges. Opponents argue merit selection is still a political process. Board members are usually chosen by small groups, as opposed to being elected by voters. Generally, the governor and lawyers, through the state's bar association, select members to serve on a merit selection board. 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. The activities of most merit selection commissions do not take place during meetings which are open to the public and the laws in many states specify that the names of candidates applying to become judges 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.[4]

—Michael E. DeBow[7]

[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.[4]

—Professor Brian T. Fitzpatrick of Vanderbilt University[8]

As the bar is an elite segment of society, states that give lawyers more power than their fellow citizens are rightly described as elitist.[4]

—Professor Stephen Ware of the University of Kansas[9]

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.[4]

—Professor Stephen Ware of the University of Kansas[9]

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.[4]

Pascal Calogero[10]

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.[8][4]

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, states began searching for alternative methods to select judges as early as 1776. Under Pennsylvania's first 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.[11]

By the early 1800's, appointing judges had become increasingly unpopular. In 1832, Mississippi, was one of the first states to begin holding judicial elections to allow voters to elect judges.[11] 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 in 1913. This national, non-partisan organization was formed to maintain a qualified, independent judiciary and ensure fairness in the United States' justice system. The merit selection system was one method the organization promoted for selecting judges.

The idea of choosing judges using a non-partisan, merit selection process was first proposed by Albert Kales, a co-founder of the American Judicature Society, in 1914.[12] In 1940, the State of Missouri was the first to adopt what is now often referred to as a "merit selection" system, known as the "Nonpartisan Selection of Judges Court Plan," which was approved by the voters in 1940. In 1945, this method became a part of Missouri's State Constitution as noted in Article V, Section 21.[13] This type of judicial selection process eventually became known as "The Missouri Plan". In 1976, some changes were made to Missouri's judicial selection method. The primary change allowed the nominating commission to appoint a judge from the list of names submitted to the Governor, if the Governor did not do so within 60 days.[11]

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.[14]

Turnover

  • To date, no appellate judge in Missouri has ever lost a retention election.[15]
  • In 2006, a circuit judge in St. Louis, Judy Draper, received one of the worst ratings in decades with only 27.5% of lawyers recommending her retention. Overall, 192 lawyers surveyed said that Judge Draper was poor or below average when it came to "consistently applying laws, rules and sentences." Only 39 lawyers rated her excellent or above average, and 45 rated her merely as average. Judge Draper was nevertheless retained by voters.[16]
  • California adopted retention elections in 1934. As of 1986, not a single California Supreme Court justice had failed to be retained. In that year, however, Chief Justice Rose Bird and Justices Joseph Grodin and Cruz Reynoso were rejected by voters--by 66%, 65%, and 57%, respectively.[14]
  • Tennessee voters rejected the retention of then-Chief Justice Penny White in 1996. The state had just recently adopted judicial retention as its preferred method of judicial selection.[14]
  • David Lanphier became Nebraska's first Justice to lose a retention election; he was unseated in 1996, after having been appointed in 1992.[14]
  • Since Iowa adopted a merit plan with retention elections in 1962, four judges have not been retained.[17]
  • Since Wyoming adopted merit selection of judges in 1972, five judges have been rejected by voters, including a supreme court justice whose 1992 bid for retention failed.[18]

See also

External links

References

  1. 1.0 1.1 American Judicature Society, "Merit Selection: The Best Way to Choose Judges," archived October 2, 2014
  2. DeBow, State Judicial selection: Once More Unto the Breach.
  3. KU Scholarworks, "The Missouri Plan in National Perspective," September 28, 2009
  4. 4.0 4.1 4.2 4.3 4.4 4.5 4.6 4.7 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
  5. Center For American Progress Action Fund, "Merit Selection and Retention Elections Keep Judges Out of Politics," November 1, 2012
  6. 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)
  7. The Federalist Society, "State Judicial selection: Once More Unto the Breach," March 20, 2008
  8. 8.0 8.1 Missouri Law Review, "The Politics of Merit Selection, Vol. 74, Issue 3, Article 13," accessed December 9, 2013
  9. 9.0 9.1 Missouri Law Review, Vol. 74, Issue 3, "The Missouri Plan in National Perspective," accessed December 9, 2013
  10. Justice cautions on appointing judges
  11. 11.0 11.1 11.2 American Judicature Society, "History of Reform Efforts," archived October 2, 2014
  12. American Judicature Society, "Selection FAQs," accessed December 9, 2013
  13. Your Missouri Courts, "About Your Courts, Meet Your Missouri Judges," accessed December 9, 2013
  14. 14.0 14.1 14.2 14.3 Loyola of Los Angeles Law Review, "Judicial Retention Elections," 2013
  15. The Wall Street Journal, Grisham's Judicial Appeal," March 20, 2008
  16. The American Spectator, "Judging the Judges," April 23, 2008
  17. American Judicature Society, "Judicial Selection in the States: Iowa," archived October 12, 2011
  18. American Judicature Society, "Judicial Selection in the States: Wyoming," archived Novebmer 5, 2011