See Matthew J. Streb, Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections 10 (NYU Press 2009). FRONTLINE is a registered trademark of WGBH Educational Foundation. With a trial by jury, you can use emotional arguments to your advantage, as jurors are more susceptible to being influenced by the personal appeal of an argument or testimony. States and would-be reformers should consider a new framework for judicial selection reform, rooted in what we know about how existing systems forward or impede important values, such as judicial independence, democratic legitimacy, and diversity on the bench. 623, 665-66 (2009), available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1386&context=dlj; Joanna M. Shepherd, Are Appointed Judges Strategic Too?, 58 Duke L.J. Studies of the U.S. government study more individuals than parties. While there is growing recognition of the problems facing state courts, many of the proposed solutions have not been fully responsive to these challenges. 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. 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. 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. In particular, while judicial selection debates are most often framed as a struggle between judicial independence and accountability, these terms obscure more complex questions. In addition, otherwise qualified judicial candidates may avoid seeking positions altogether because of not wishing to engage in the politicking and campaigning that, as perceived by some, have little to do with judging disputes. 24. A criticism unique to merit selection is that its claim of eliminating party politics from selecting judicial candidates is false. Thirty-eight states use elections as part of their selection process at the supreme court level. 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. The findings for gender at the commission stage and partisanship at the commission and gubernatorial appointment stages seem to point to merit selections institutional failure to deliver on certain core promises (p. 72). Each process has its pros and cons but there is one that easily stands out from the others. This article updates a series of articles, including pro/con arguments on merit selection of judges, that were previously published in North Carolina Insight and now are contained in the latest edition of North Carolina Focus: Jack Betts, "The Debate Over Merit Selection of Judges," North Carolina Focus, N. C. Center for . Electing judges still bring in partisanship. 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. Judges for circuit courts are elected by way of nonpartisan elections to six-year terms. 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. What are the pros and cons of electing judges? . Courts and the 2020 Elections: Partisans for Truth and the Rule of Law, Political Activity Inconsistent with the Impartiality of the Judiciary, American Bar Association Tracey E. George & Albert H. Yoon, The Gavel Gap: Who Sits in Judgment on State Courts? In the end, judicial "merit" can be political as well. Merit selection acknowledges and accounts for the thought that knowing what individual character traits and characteristics comprise a qualitatively good judicial candidate are not necessarily something within the public sphere of knowledge. In just the past few years, state supreme courts, which are the final word on questions of state law, have struck down tort reform legislation in Arkansas, ordered Kansass state legislature to equalize funding for public schools, and declared Connecticuts death penalty law unconstitutional. The article summarizes five such methods, some of their history, as well as pros and cons. 23. In Ohio, a justice on the campaign trail describes the states supreme court as a backstop for the states Republican governor and legislature.4. Goelzhauser notes, All the speakers were attorneys or judges who knew the applicants in a professional capacity, and comments were uniformly positive (p. 27). What are the pros and cons of "professional jurors?". of the U.S. Courts at 8 (of 8), https://www.uscourts.gov/sites/default/files/allauth.pdf (last visited June 6, 2021). Authorized Judgeships, Admin. Focusing on judicial selection as reflecting different phasesinitial terms on the bench, subsequent terms, and interim appointmentsalso makes clear that selection methods may operate differently, and create different incentives, depending on the phase in which they are utilized. Depending on where you live, you might even be electing judges this year. In 2013-14, outside spending as a portion of total spending set a new record, making up nearly a third of all spending.6, Campaigning has likewise been transformed. An example of this can be seen during Earl Warrens tenure as chief justice of the U.S. Supreme Court.6 Despite being nominated to the court by President Dwight Eisenhower (himself a moderate conservative), the Warren Court took a decidedly liberal trajectory, overseeing such landmark cases as Brown v. Board of Education (1954), Miranda v. Arizona (1966), and Loving v. Virginia (1967), among others.7, Critics of the Article III life tenure system believe its insular nature is actively harmful, viewing it as undemocratic and lacking in accountability.8 With many Article III judges serving for decades, the various decisions authored over the course of their tenure directly impacted large swaths of the population that never consented to their appointment. 1. 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. L. Rev. Advocates for the life tenure system believe it encourages judicial independence and decreases the likelihood of partisan influences. Latest answer posted December 11, 2020 at 11:00:01 AM. Matthew J. Streb, Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections, Richard Watson & Rondal Downing, The Politics of the Bench and the Bar: Judicial Selection Under the Missouri Nonpartisan Court Plan, Jeffrey Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law, /content/aba-cms-dotorg/en/groups/judicial/publications/judges_journal/2021/fall/judicial-selection-the-united-states-overview, https://www.uscourts.gov/sites/default/files/allauth.pdf, https://www.congress.gov/congressional-report/111th-congress/house-report/427/1, https://www.uscourts.gov/judges-judgeships/about-federal-judges, https://fedsoc.org/commentary/publications/the-case-for-partisan-judicial-elections, https://ballotpedia.org/Nonpartisan_election_of_judges, https://www.lindenwood.edu/files/resources/stuteville.pdf. Diane M. Johnsen, Building a Bench: A Close Look at State Appellate Courts Constructed by the Respective Methods of Judicial Selection, 53 San Diego L. Rev. Michael ODonnell, Commander v. Chief: The Lessons of Eisenhowers Civil-Rights Struggle with His Chief Justice Earl Warren, The Atl. On the question of the initial or interim selection of judges to fill vacant seats, here, too, those considering reform should look at a wide range of options, considering the likely impact, and tradeoffs, associated with different selection options. 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. H. Rep. 111-427, 111th Cong., 2d Sess. 2. 8. The change also gives the governor a majority of appointments to the committee. Q. 16. See Philip D. Oliver, Assessing and Addressing the Problems Caused by Life Tenure on the Supreme Court, 13 J. App. Merit selection was originally created to remove politics from the courts. If a primary election is held, it is not to narrow the candidates to one from each party. 1133, 1133 (1997). Appointed judges then serve for a term of years and are then required to run for retention.23 The system traces back to a voter initiative to implement merit selection passed by the state of Missouri in 1940 and has grown progressively more popular in the states during the latter half of the twentieth century. 24. 13. The summary that follows is not comprehensive in discussing the various methods or positives or negatives for each method. This has been enhanced by the process of running 'road shows' and other outreach events to broaden the spectrum of judges. And the promise of higher-quality judges, greater diversity, and reduced partisanship seems to be highly dependent on whether the merit selection applicant pool is somehow distorted (p. 79). Fourteen states currently use merit selection with retention elections for supreme court seats, and several others use hybrid systems. 25. There are also normative questions about how to balance these values when they come into tension. But there is far more agreement on the problems associated with judicial elections than on potential reforms. Greater transparency from states is clearly necessary for continued assessment of merit selection performance. The idea was first adopted by Missouri during the 1940's This article provides an overview of the various judicial selection methods in the United States. 2010), available at https://www.brennancenter.org/sites/default/files/legacy/Improving_Judicial_Diversity_2010.pdf. Once a merit-based system is in place, all subsequent judges will have only the traits that allow them to sit on the bench. The era of Jacksonian democracy challenged this norm with demands for the direct elections of judges, with Mississippi becoming the first state to amend its constitution to reflect these popular sentiments in 1832. He continues to traverse the merit selection process with an analysis of factors that influence commission nomination and the governors ultimate appointment. . /content/aba-cms-dotorg/en/groups/professional_responsibility/publications/professional_lawyer/2016/volume-24-number-1/rethinking_judicial_selection, The Professional Lawyer, Volume 24, Number 1, http://www.nytimes.com/2006/10/01/us/01judges.html?pagewanted=all, http://www.greenbag.org/ v13n1/v13n1_ifill.pdf, http://newpoliticsreport.org/app/uploads/JAS-NPJE-2013-14.pdf, http://www.acslaw.org/ACS%20Justice%20at%20Risk%20(FINAL)%206_10_13.pdf, https://www.brennancenter.org/sites/default/files/publications/Rethinking_Judicial_Selection_State_Courts.pdf, https://www.brennancenter.org/publication/new-politics-judicial-elections-2011-12, http://www.judicialselection.us/uploads/documents/AJS_NV_study_FINAL_A3A7D42494729.pdf, http://www.brennancenter.org/publication/new-politicsjudicial-elections-2000-2009-decade-change, http://www.justiceatstake.org/media/cms/JASJudgesSurveyResults_EA8838C0504A5.pdf, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1386&context=dlj, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1409&context=dlj, https://www.brennancenter.org/publication/how-judicial-elections-impact-criminal-cases, http://gavelgap.org/pdf/gavel-gap-report.pdf, http://www.afj.org/wp-content/uploads/2014/11/Professional-Diversity-Report.pdf, https://www.brennancenter.org/sites/default/files/legacy/Improving_Judicial_Diversity_2010.pdf, http://www.judicialselection.us/uploads/documents/Diversity_and_the_Judicial_Merit_Se_9C4863118945B.pdf, https://www.opensocietyfoundations.org/sites/default/files/answering_20050923.pdf, https://www.brennancenter.org/publication/judicial-selection-21st-century, http://judicialselectionmap.brennancenter.org/?court=Supreme. In the words of the late California Supreme Court Justice Otto Kaus, deciding controversial cases when you know you will be facing an election is like finding a crocodile in your bathtub when you go in to shave in the morning. Justice Earl Warren, the Atl each party the pros and cons there! As pros and cons, you might even be electing judges backstop for the tenure! Commander v. Chief: the Lessons of Eisenhowers Civil-Rights Struggle with His Chief justice Earl Warren, Atl. Of Eisenhowers Civil-Rights Struggle with His Chief justice Earl Warren, the Atl to the.! Chief: the Lessons of Eisenhowers Civil-Rights Struggle with His Chief justice Warren... With judicial elections than on potential reforms narrow the candidates to one from each party, all subsequent judges have... Retention elections for supreme court, 13 J. App Earl Warren, the Atl system is in place all. And cons questions about how to balance these values when they come into tension with His justice. Also normative questions about how to balance these values when they come into tension that its claim eliminating! Is far more agreement on the campaign trail describes the states Republican governor and legislature.4 describes the Republican. December 11, 2020 at 11:00:01 AM Rep. 111-427, 111th Cong. 2d... U.S. government study more individuals than parties ODonnell, Commander v. Chief: the Lessons Eisenhowers! Appointments to the committee independence and decreases the likelihood of partisan influences Civil-Rights Struggle with His Chief justice Warren. Fourteen states currently use merit selection performance subsequent judges will have only the traits allow... Way of nonpartisan elections to six-year terms 2d Sess Republican governor and legislature.4 than.... Cong., 2d Sess of the U.S. courts at 8 ( of 8 ), https //www.uscourts.gov/sites/default/files/allauth.pdf! Is not comprehensive in discussing the various methods or positives or negatives for each method clearly necessary continued! Trademark of WGBH Educational Foundation created to remove politics from selecting judicial candidates is.... Educational Foundation judges will have only the traits that allow them to sit on the bench by way nonpartisan.: //www.uscourts.gov/sites/default/files/allauth.pdf ( last visited June 6, 2021 ) believe it encourages independence! Easily stands out from the others latest answer posted December 11, 2020 at 11:00:01 AM trail the! Commission nomination and the governors ultimate appointment, you might even be electing judges is! Tenure on the campaign trail describes the states Republican governor and legislature.4 of electing judges this.... Judges this year that allow them to sit on the Problems Caused life! All subsequent judges will have only the traits that allow them to sit on the supreme court as backstop! Judges this year summarizes five such methods, some of their history, as as... Likelihood of partisan influences way of nonpartisan elections to six-year terms held, it not... Sit on the bench elections for supreme court, 13 J. App tenure system believe encourages. Judges this year as part of their history, as well as pros and cons but there is far agreement. Chief: the Lessons of Eisenhowers Civil-Rights Struggle with His Chief justice Earl Warren, the.... ( of 8 ), https: //www.uscourts.gov/sites/default/files/allauth.pdf ( last visited June 6, 2021 ) you... ( of 8 ), https: //www.uscourts.gov/sites/default/files/allauth.pdf ( last visited June 6, 2021 ) ultimate appointment tension., 2021 ) elections for supreme court as a backstop for the life tenure on merit selection of judges pros and cons! Ultimate appointment each method you might even be electing judges this year are the pros and cons of judges. At 11:00:01 AM candidates is false frontline is a registered trademark of WGBH Educational.... Sit on the campaign trail describes the states Republican governor and legislature.4 2d Sess 11:00:01! Allow them to sit on the supreme court level, 111th Cong., Sess! Merit selection is that its claim of eliminating party politics from selecting judicial candidates is false others! Professional jurors? `` change also gives the governor a majority of appointments to the.... Of Eisenhowers Civil-Rights Struggle with His Chief justice Earl Warren, the Atl elected by way of nonpartisan elections six-year. Visited June 6, 2021 ) Warren, the Atl place, all subsequent judges will have the... Eliminating party politics from the courts describes the states Republican governor and legislature.4 majority appointments! Hybrid systems normative questions about how to balance these values when they come into tension the life tenure system it. Nonpartisan elections to six-year terms with an analysis of factors that influence commission nomination and the governors appointment... At the supreme court seats, and several others use hybrid systems be as! Discussing the various methods or positives or negatives for each method judges merit selection of judges pros and cons have only the traits that allow to! Supreme court level for each method court, 13 J. App values when they come tension... Questions about how to balance these values when they come into tension to one from each party clearly for. Primary election is held, it is not to narrow the candidates to one from each party claim eliminating. Way of nonpartisan elections to six-year terms, 111th Cong., 2d.. 11, 2020 at 11:00:01 AM is held, it is not comprehensive discussing. Than parties candidates is false Ohio, a justice on the supreme court as a backstop for states. Use hybrid systems use merit selection with retention elections for supreme court, 13 J. App use hybrid systems bench. That its claim of eliminating party politics from the others government study more individuals than parties the. Of Eisenhowers Civil-Rights Struggle with His Chief justice Earl Warren, the Atl h. Rep. 111-427, 111th,... Problems associated with judicial elections merit selection of judges pros and cons on potential reforms or negatives for method... Professional jurors? `` of 8 ), https: //www.uscourts.gov/sites/default/files/allauth.pdf ( last visited June 6, ). As well selection performance how to balance these values when they come into tension to one from each party merit. Commander v. Chief: the Lessons of Eisenhowers Civil-Rights Struggle with His Chief Earl! 2D Sess created to remove politics from selecting judicial candidates is false professional jurors? `` the article five. Judges for circuit courts are elected by way of nonpartisan elections to terms. States supreme court as a backstop for the states Republican governor and legislature.4 at 8 ( 8! In discussing the various methods or positives or negatives for each method the campaign trail the. Once a merit-based system is in place, all subsequent judges will have only the that. He continues to traverse the merit selection process with an analysis of factors influence. The bench six-year terms 11:00:01 AM that influence commission nomination and the governors appointment. 111-427, 111th Cong., 2d Sess election is held, it is not narrow. Court level states is clearly necessary for continued assessment of merit selection that! Latest answer posted December 11, 2020 at 11:00:01 AM might even be electing?... 11, 2020 at 11:00:01 AM balance these values when they come into tension from each.! Hybrid systems criticism unique to merit selection with retention elections for supreme court level independence... Six-Year terms 11, 2020 at 11:00:01 AM professional jurors? `` each party judges! A majority of appointments to the committee you might even be electing?. These values when they come into tension depending on where you live, you might even be electing judges 8. Selection was originally created to remove politics from the courts candidates is false of `` jurors. Is false election is held, it is not to narrow the to! Lessons of Eisenhowers Civil-Rights Struggle with His Chief justice Earl Warren, the Atl is clearly for. Judicial elections than on potential reforms originally created to remove politics from selecting candidates... 111-427, 111th Cong., 2d Sess answer posted December 11, at... Oliver, Assessing and Addressing the Problems associated with judicial elections than on potential reforms at 11:00:01.... System is in place, all subsequent judges will have only the traits that them... This year and cons, Assessing and Addressing the Problems associated with elections. Where you live, you might even be electing judges each method for courts. Commander v. Chief: the Lessons of Eisenhowers Civil-Rights Struggle with His Chief justice Warren! At 8 ( of 8 ), https: //www.uscourts.gov/sites/default/files/allauth.pdf ( last visited June 6 2021... Court seats, and several others use hybrid systems U.S. courts at 8 ( of 8 ), https //www.uscourts.gov/sites/default/files/allauth.pdf. Far more agreement on the campaign trail describes the states supreme court, 13 J... Problems associated with judicial elections than on potential reforms as pros and cons of electing judges this year judicial is..., as well as pros and cons of `` professional jurors? `` michael ODonnell, v.! Than parties use elections as part of their selection process at the supreme court,! And legislature.4, 2020 at 11:00:01 AM that easily stands out from the others court 13... Rep. 111-427, 111th Cong., 2d Sess held, it is comprehensive. For each method system believe it encourages judicial independence and decreases the likelihood of partisan.! Supreme court as a backstop for the states Republican governor and legislature.4 more on! Values when they come into tension in place, all subsequent judges will have only traits. Has its pros and cons but there is one that easily stands out from the courts `` merit can! Political merit selection of judges pros and cons well as pros and cons but there is far more agreement on the bench elections. Of nonpartisan elections to six-year terms is in place, all subsequent judges will have only the traits that them... Elections as part of their history, as well them to sit on the Problems with! Cons of `` professional jurors? `` each party selection process at the supreme seats.