Commission-selection, political appointment method of judicial selection

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

• New York.

Life terms

• Rhode Island Supreme Court.

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

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."

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.

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.

Low turnover

• To date, no appellate judge in Missouri has ever lost a retention election.

• 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.

• "...[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."

• 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.

• 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.)

• David Lanphier became Nebraska's first Justice to lose a retention election; he was unseated in 1996 (having been appointed in 1992).

• Since Iowa adopted a merit plan with retention elections (1962), only four judges have not been retained.

• 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.

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)