Jacob E. Tuskai graduated from Barrett, The Honors College at Arizona State University in 2020 with a bachelor of arts degree (summa cum laude) in U.S. history. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.); see also Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. The concern with capture is that it can have deleterious effects on judicial performance as certain interests work to shape a judiciary that aligns with their preferences, as opposed to a focus on merit. for Civil Rights Under Law, Answering the Call for a More Diverse Judiciary: A Review of State Judicial Selection Models and Their Impact on Diversity 10 (2005), available at https://www.opensocietyfoundations.org/sites/default/files/answering_20050923.pdf. What are five reasons to support the death penalty? 8. Another important pro of having a merit-based system of judicial appointments is that it takes the process out of the hands of voters, avoiding one of the most popular alternatives to judicial appointments. . 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. However, Goelzhausers discussion illustrates that some states allow for modest inclusion of public views on potential nominees. Would electing judges to a single fixed term better promote judicial independence and public confidence? Those who oppose merit selection argue it is the right of citizens to vote for all office-holders, including judges, and that politics is still pervasive in the nominating process, but is more difficult to monitor. Instead of getting judges who cater to popular opinion through the voting process, the appointment process results in judges who cater to the opinion of only a small set of people: whoever is on the appointment panel. Ambition for public office has been explored extensively in the electoral context (particularly legislative); however, we know far less about what motivates the decision to apply for judicial vacancies in merit systems. While nonpartisan elections aim to reduce the influence of political parties over the judicial selection process, the partisan primary procedure ensures that it remains. Only three statesMassachusetts, New Hampshire, and Rhode Islandhave life tenure (with or without a mandatory retirement age) for judges. The pros are numerous, but what they boil down to is that you want your judges to make their decisions based on the law, not based on what public opinion says or what people who can contribute lots of money to campaigns think. Across the country, state courts are facing challenges to their basic fairness and legitimacy, many of which are tied to states systems for choosing judges. The question of judicial selection has grown even more opaque in the nearly two centuries since, as various other methods for judicial selection have been implemented. 17. 10. Latest answer posted November 14, 2019 at 7:38:41 PM. That said, the ensuing year saw a progressive majority at the states constitutional convention push through a proposal allowing primary nominations for elected offices. Judges should not be politically elected, because it would be disastrous to have judges act as politicians do. Opponents argue that while neither the Republican nor Democratic state parties may hold much influence within the commission, the commission itself encourages factionalism and the creation of new informal political parties. The founders, with their fears of mob rule, saw that the early days of the United States selected its judges through appointments made at the behest of governors or state legislatures. Now with nonpartisan elections, there aren't any real costs but with . What are the pros and cons of being a probation officer. Our summaries and analyses are written by experts, and your questions are answered by real teachers. 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. There are numerous ways of thinking about justiceso many that there is an entire field of thought for it, called jurisprudence. His discussion of the use of judicial selection in a variety of specifications at the federal level (i.e., for federal magistrate judges) and internationally illustrates that American states are not the only laboratories for institutional experimentation with merit selection. A pros of this process is that it minimizes the chance of selecting a judge because of their political status or their social links. . One concern expressed about merit selection is the removal of direct public participation in the selection process, as compared to elections (p. 3). for Justice, Rethinking Judicial Selection in State Courts 6-7 (2016), available at https://www.brennancenter.org/sites/default/files/publications/Rethinking_Judicial_Selection_State_Courts.pdf. Some type of merit plan for selection of judges is utilized by 24 states and the District of Columbia. Yet, this is an area where the safeguards are almost uniformly weakin all but three states, judges are periodically reconsidered for their jobs, whether through elections or reappointment, putting job security pressures front-and-center. Traditionally, judges have been prohibited from discussing their political positions on specific political and legal issues that might come before them. Republicans argued that the move was necessary to increase the publics representation on the commission through gubernatorial selection. for Justice Judicial Selection: An Interactive Map, http://judicialselectionmap.brennancenter.org/?court=Supreme (last visited Sept. 2, 2016). Indeed, scholarship suggests that when voters face low-information electionsas judicial elections typically arethey may, consciously or unconsciously, rely on racial and gender stereotypes as shortcuts in determining their choice.23. The views expressed are solely those of the author. Pros And Cons Of The Texas Judicial System. There are also unanswered questions about how nominating commissions function in practiceparticularly whether some committees have been subject to capture, either by special interests or the political branches, in ways that may undermine their legitimacy or effectiveness. . Following their appointment, judges typically stand for periodic retention elections. The decision to run for office entails substantial cost that may dissuade potential candidates. I highly recommend Judicial Merit Selection: Institutional Design and Performance for State Courts, as this work will be of great interest to students and scholars of judicial politics, comparative institutionalists, legal scholars, transparency advocates, and state officials. With only a small set of values allowed, only those values will be used to make judicial decisions, which stagnates innovation in the law and prevents society from progressing. Goelzhauser notes, All the speakers were attorneys or judges who knew the applicants in a professional capacity, and comments were uniformly positive (p. 27). 30. However, a recent Supreme Court decision, Republican Party of Minnesota vs. White, affirmed the right of judges to speak on these issues. Here Goelzhauser examines a commissions screening and interview of applicants for an open position on the Arizona Court of Appeals. Rather than examining the constituents of state electing judges directly, we can instead shift our attention to how the majority of states react to merit selection. After 245 years, the United States has not adopted a single unified method with which to select judges. She was known for her balanced and dispassionate opinions. The partisan election of judges is a selection method where judges are chosen through elections where they are listed on the ballot with an indication of their political affiliation.. As of December 2021, eight states used this method at the state supreme court level and eight states used this selection method for at least one type of court below the supreme court level. The only con I can see is that this takes some power away from the voters. 829, 839 (2016). Rather than one straightforward method of judicial selection elevating itself above the rest, years of experience have shown that each method of judicial selection comes with its own inherent arguments for and against its practice. . I would fear that a judge that is elected would owe a debt to his political supporters. Today, 33 states along with the District of Columbia use some form of merit selection.24. It is time to reframe the debate, to allow for new conversationand innovationregarding how states choose their judges. In Minnesota, North Dakota, and Georgia, for example, all current supreme court justices were initially appointed to the bench. The Pros and Cons of Electing Judges The 2020 election year is well underway, which means you've probably been considering where to cast your vote. 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. Most constitutional governments, including the United States' government, use three branches of governmentthe legislative, executive, and judicialand rely on a system of checks and balances to ensure that none of these branches gain too much power over the others. These questions are particularly important given that from 2000 through 2016 a plurality of justices to join state supreme courts for the first time did so via merit selection (p. 9). Judges often hear cases relating to high-profile issuesfrom reproductive rights to the death penalty. 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. . Doing so, proponents claim, ultimately allows for the most qualified candidates to join the judiciary. The two most common methods of selecting state judges (as opposed to federal judges) are election and merit selection. For example, consider the right to privacy, which is never mentioned in the Constitution but was "created" from the values of several other amendments. The credentials that are to be examined and compared so as to send. sex offenders,8 and have touted their own record in upholding nearly 90% of all death sentences. 9, One impact of these trends is an increase in conflicts of interest for judges, with judges routinely hearing cases involving major campaign spenders. As Ted Olson, the former Solicitor General and a prominent litigator, observed: The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today.11, These conflicts may also extend beyond appearances. Additionally, judges are rarely removed when they stand for retention, and frequently don't have opposition in elections, so merit selection often results in what amounts to life tenure for judges. Sandra Day grew up on a large family ranch near Duncan, Arizona. . There are of course valid reasons for withholding certain types of information related to judicial applications, given privacy concerns. In theory, these judges would be the best equipped to deal with the complicated questions of justice that judges see every day. Duke Law School. Scott Greytak et al., Bankrolling the Bench: The New Politics of Judicial Elections 2013-14 at 21, 34-40, 63 (Laurie Kinney ed., 2015), available at http://newpoliticsreport.org/app/uploads/JAS-NPJE-2013-14.pdf. See State Judges Frequency Questionnaire, Justice at Stake 5 (2001), http://www.justiceatstake.org/media/cms/JASJudgesSurveyResults_EA8838C0504A5.pdf. The judge then . State courts have a profound impact on a states legal and policy landscape and, in turn, on peoples lives. The biggest pro of having a merit-based system of appointment is simple: you get the best and most qualified judges sitting on the bench. In acknowledging this, merit selection posits that rather than leave the selection of judicial candidates up to an ill-informed public, the decision should instead reside with a qualified group of legal professionals. Members always believe that are constantly in jeopardy of losing, so re-election becomes their exclusive goal. EDITOR'S NOTE: This is the last of six guest columns written by Hernando County Bar Association members and published on this page during Law Week, which began Sunday. 1. Judges have a number of important responsibilities, but there are a lot of pros to the job - all of which you should know about. Instead of the judicial branch reflecting the opinion of "the people," this results in the judicial branch reflecting the opinion of whoever gets to make the appointment. Web Site Copyright 1995-2023 WGBH Educational Foundation. The initial term of office is one years. Additionally, due to the costs involved, elections discourage many well-qualified attorneys from seeking judicial office, and the merit selection process generally results in a higher number of appointments of minority and female candidates. Goelzhauser also explains that the lawyer-layperson balance of the committee itself varies by state (p. 109). 7. They are unlikely to recognize the differences in the makeup of an effective judge and an ineffective one and are nearly as likely to vote for bad judges as they are to vote for good ones. These findings would seem to bode well for those who champion merit selections ability to ensure that quality jurists are nominated and appointed. The existence of this political pressure drives the list of the pros and cons of having a merit-based appointment system for the judges on the judiciary. Let us know your assignment type and we'll make sure to get you exactly the kind of answer you need. Press 2018). By continuing to use this website, you consent to Duke University's usage of cookies and similar technologies, in accordance with the Duke Privacy Statement. Goelzhauser presents a comprehensive analysis of all state supreme court merit selection appointments between 1942 and 2016 to discern whether institutional design influences the quality and diversity of judicial appointees. Much like arguments against the life tenure system, opponents of merit selection claim that the system is not democratic and does not select candidates fully representative of the population they are serving. But there is growing evidence that money not only helps shape the ideological composition of courts but also puts direct pressure on the decisions judges make. 16. H. Rep. 111-427, 111th Cong., 2d Sess. In the words of Richard Neely, a retired chief justice of the West Virginia Supreme Court of Appeals, Its pretty hard in big-money races not to take care of your friends. L. Rev. 5. Apr 04, 1996 at 12:00 am. David E. Pozen, The Irony of Judicial Elections, 108 Colum. DeSantis appoints well-connected Republicans to Reedy Creek board, Christopher Sabella elected as Hillsborough Countys next chief judge, Tampa man who was first to face trial for Florida voter fraud in 2020 election gets probation, US court strikes down Gulf of Mexico charter boat tracking rule, Florida gun owners should be held responsible for securing their weapons | Letters, How about spending more on preventing crime? Tracey E. George & Albert H. Yoon, The Gavel Gap: Who Sits in Judgment on State Courts? Pros And Cons Of Merit Selection. Copyright 2023 Duke University School of Law. While there is growing recognition of the problems facing state courts, many of the proposed solutions have not been fully responsive to these challenges. Judges of the supreme Court, and all other Officers of the United States.. Thus, the question is not only how to best insulate judges from political forces, but also which political forcesincluding the political branches, special interests, political parties, and majority rulepose the gravest threat to judicial independence. A merit-based appointment system prevents voters from making this mistake. Electing judges still bring in partisanship. Recent data from the American Constitution Society shows a troubling gavel gap along race and gender lines: While people of color make up 40 percent of the population, they represent only 20 percent of state judges.17 Women, who make up half the population, are less than a third of all state judges.18 State benches also fail to represent the diversity of the legal profession, with individuals with prosecutorial or corporate backgrounds dominating state (and federal) courts.19, Research suggests that both elective and appointive systems are producing similarly poor outcomes in terms of the diversity of judges.20 Money, old-boy networks, biasesboth explicit and implicitand inadequate pipelines for diverse candidates are all contributing factors. Those of the supreme Court justices were initially appointed to merit selection of judges pros and cons bench example! Pros and cons of being a probation officer judge because of their political positions on specific political and legal that! 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