Commission-selection, political appointment method of judicial selection
From Judgepedia
Contents |
The commission-selection, political appointment method of judicial selection is sometimes referred to as the Missouri Plan.
States that choose state Supreme Court justices using this method are:
Six year terms
- Arizona. Nomination by commission, followed by gubernatorial appointment.
- Florida. Nomination by commission, followed by gubernatorial appointment.
- Kansas. Nomination by commission, followed by gubernatorial appointment.
- Nebraska. Nomination by commission, followed by gubernatorial appointment.
- Oklahoma Supreme Court.
- Oklahoma Court of Criminal Appeals.
- Vermont Supreme Court.
Eight year terms
- Connecticut Supreme Court. Nomination by commission, followed by gubernatorial nomination, followed by legislative choice.
- Iowa Supreme Court. Nomination by commission, followed by gubernatorial appointment.
- South Dakota Supreme Court.
- Tennessee Supreme Court.
- Wyoming Supreme Court.
Ten year terms
- Alaska. Nomination by commission, followed by gubernatorial appointment.
- Colorado. Nomination by commission, followed by gubernatorial appointment.
- Hawaii. Nomination by commission, followed by gubernatorial appointment, followed by senate consent.
- Indiana. Nomination by commission, followed by gubernatorial appointment.
- Maryland Court of Appeals. Nomination by commission, followed by gubernatorial appointment, followed by senate confirmation. .
- Utah Supreme Court.
Twelve year terms
- Delaware. Nomination by commission, followed by gubernatorial appointment, followed by senate consent.
- Missouri. Nomination by commission, followed by gubernatorial appointment.
Fourteen year terms
Life terms
Mechanics
So-called "merit" selection usually involves a nominating commission which reviews the resumes 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 to the governor. The Governor will have a pre-determined period of time with which to select and nominate a candidate. 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 supreme court.
In some cases, the Legislature may be required to confirm the governor's choice. Generally, incumbents in this system who wish to stay in office then run in retention elections (without challengers). Voters are then asked to retain the judge or not. States where justices are retained by state legislatures rather than by voters are:
- Vermont[1]
Criticisms
Proponents of this method of judicial selection have dubbed it "merit" selection ostensibly because such a method results in "better" judges than judicial elections. However,"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."[2]
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. It is Calogero's belief that various forms of merit selection, built upon the notion that an elected judiciary is susceptible to political meddling and therefore poised for corruption, is an incorrect assessment. Calogero said:
“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.[3]
Report on judicial 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.[4]
Low turnover
- To date, no appellate judge in Missouri has ever lost a retention election.[5]
- 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.[6]
- "...[T]he current system of electing judges in Georgia, which generally starts with an appointment by the Governor, results in a re-election rate of more than 95 percent – and most elections are uncontested."[7]
- 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.[8]
- 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.)[9]
- David Lanphier became Nebraska's first Justice to lose a retention election; he was unseated in 1996 (having been appointed in 1992). [10]
- Since Iowa adopted a merit plan with retention elections (1962), only four judges have not been retained.[11]
- 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.[12]
Approaches to removing justices
Soft on Crime
California: In 1986, Chief Justice Rose Bird and Justices Joseph Grodin and Cruz Reynoso were rejected by voters. "In particular, it was their voting records in death penalty cases that were the subject of the campaign [to unseat them].... A highly organized opposition focused on this issue in painting the Justices as soft on crime.... Republican Governor George Deukmejian and a group of district attorneys from across the state spearheaded the campaign to unseat Bird."[13]
Twelve years later, a similar attempt was made on the heads of two California Supreme Court justices up for retention: Chief Justice Ronald M. George and Justice Ming W. Chin. The duo was targeted by pro-life groups who took umbrage with the Justices for having struck down a state law requiring parental consent for minors' abortions. However, the opposition was neither well-focused or organized and did not have the support of a political party. Both justices were ultimately retained.[14]
Tennessee: Having recently overhauled its longstanding use of judicial elections, Tennessee voters rejected the retention of then-Chief Justice Penny White in 1996. White's opposition claimed she was "soft on crime" and that, when called upon, would not vote in favor of the death penalty. "The campaign against her centered on her concurrence in the opinion that overturned the death sentence in a case many thought deserved the death penalty. She...receiv[ed] only a forty-five percent favorable vote." [15] (Note: Tennessee's judicial performance evaluation process was not up and running until 1998; as far as White was concerned, voters relied on advertising and distributed materials by her supporters and opposition for information.)
Nebraska: David Lanphier's margin of defeat was nearly two-to-one, as opposition focused on two issues: his votes on Nebraska's second-degree murder statute and term limits. Lanphier had voted with the majority in decisions where the Supreme Court ruled to overturn second-degree murder convictions for lack of mailice. "The new interpretation of the statute resulted in the vacating of many murder convictions and the freeing of some previously convicted of murder....His opponents labeled [him] 'soft on crime,' among other things."[16]
Term limits
In 1996, Nebraska Supreme Court Justice David Lanphier was rejected by voters nearly two-to-one. One reason for rejection was Lanphier's authorship of a unanimous court decision (in 1994) that overturned a term limit amendment that voters had approved two years previously. Also in 1994, he voted with a four-member majority to reject a new term limit amendment (along with four other would-be amendments that year) from being put on the ballot, because its submission to the secretary of state was one day past the filing deadline. Opposition to Lanphier's retention spent nearly an estimated $200,000 in the counties tied to his retention. According to an article pubished in the Omaha World-Herald, Lanphier's main opposition refused to file campaign finance statements with the state election commission. They claimed they were exempt from disclosing said statements thanks to standing law. [17] (Note: In Nebraska, each judge is chosen to represent certain counties, and thus, faces retention election in only those areas.)
See also
- Non-partisan election of judges
- Partisan election of judges
- Legislative election of judges
- Gubernatorial appointment of judges
- Judicial selection in the States: Courts of Last Resort
- Judicial selection in the States: Trial Courts and General Jurisdiction
External links
- Vote For Judges "What is a Judicial Election?"
- The Wall Street Journal: "The ABA Plots a Judicial Coup"
- The Wall Street Journal: "Without Judicial Merit"
- The Wall Street Journal: "State Courts in the Balance"
- Schlafly rails against appointed state judges
- Uncertain Justice: Politics and America's Courts: The Reports of the Task Forces of Citizens for Independent Courts (2000)
References
- ↑ DeBow, State Judicial selection: Once More Unto the Breach.
- ↑ DeBow, State Judicial selection: Once More Unto the Breach.
- ↑ Justice cautions on appointing judges
- ↑ Judicial Retention Elections: Loyola of Los Angeles Law Review
- ↑ Grisham's Judicial Appeal
- ↑ Judgeing the Judges from the American Spectator
- ↑ Judicial Elections & Impartiality: An Interview with Shannon L. Goessling, Esq.
- ↑ Judicial Retention Elections: Loyola of Los Angeles Law Review
- ↑ Judicial Retention Elections: Loyola of Los Angeles Law Review
- ↑ Judicial Retention Elections: Loyola of Los Angeles Law Review
- ↑ Judicial selection in the States: Iowa (American Judicature Society)
- ↑ Judicial selection in the States: Wyoming (American Judicature Society)
- ↑ Judicial Retention Elections: Loyola of Los Angeles Law Review
- ↑ Judicial Retention Elections: Loyola of Los Angeles Law Review
- ↑ Judicial Retention Elections: Loyola of Los Angeles Law Review
- ↑ Judicial Retention Elections: Loyola of Los Angeles Law Review
- ↑ Judicial Retention Elections: Loyola of Los Angeles Law Review
| |||||||
| ||||||||
