(Mar. H. Rep. 111-427, 111th Cong., 2d Sess. Duke Law School. Goelzhauser assesses these metrics through an exploration of the expressive and progressive ambition of eligible attorneys and judges when vacancies emerge, and an in-depth examination of the implementation stage of merit selection (i.e., commission action when a vacancy occurs). The substantial variation that accompanies constitutional and statutory design of merit selection systems also receives scant attention from scholars. There are also normative questions about how to balance these values when they come into tension. A pros of this process is that it minimizes the chance of selecting a judge because of their political status or their social links. Used by the state to select judges for its appellate and trial courts, the Ohio method of judicial selection consists of an initial partisan primary election, followed by a nonpartisan general election.21 Ohio first implemented contested partisan judicial elections in 1851, later moving to nonpartisan judicial elections under its 1911 Nonpartisan Judiciary Act. What that best way is, of course, subject to that debate. In recent years, Citizens United v. FEC, which barred restrictions on independent spending by corporations and unions, has also cast a long shadow, with spending by outside groupsmany of which do not disclose their donorssurging. The answer to the question of whether merit selection works is understandably complex, and Goelzhauser concludes by assessing his findings in light of the normative goals and expectations of merit selection. Only three statesMassachusetts, New Hampshire, and Rhode Islandhave life tenure (with or without a mandatory retirement age) for judges. Alicia Bannon et al., The New Politics of Judicial Elections 2011-2012: How New Waves of Special Interest Spending Raised the Stakes for Fair Courts 24-25 (Laurie Kinney & Peter Hardin eds., 2013), available at https://www.brennancenter.org/publication/new-politics-judicial-elections-2011-12. Doing so, proponents claim, ultimately allows for the most qualified candidates to join the judiciary. Trial by Jury: Pros. On the down side, critics indicate that judges should spend their time reducing the backlog of cases rather than campaigning for office, that elections force candidates to solicit campaign contributions from lawyers and possible litigants, and candidates may wind up deep in debt or may lack sufficient money to properly inform the voters of their merits. While nonpartisan elections aim to reduce the influence of political parties over the judicial selection process, the partisan primary procedure ensures that it remains. What solutions would you impose? Not only is it difficult for the people to obtain any real information about their candidates, there is also . Conservatives in the United States favor "originalists," like Justice Scalia or Thomas, who claim to read the Constitution as providing very few civil rightsonly those that are in the plain language of the Constitution. It is also timely, as several states continue to tinker with the way judges are appointed. If a primary election is held, it is not to narrow the candidates to one from each party. 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. Five states have gubernatorial or legislative appointments without a nominating commission, 16 states have merit selection through a nominating commission, and nine states (including Florida) have combined merit selection and other methods to select their judges. Using quantitative analyses, Chapter 3 explores why commissions and governors nominate and appoint particular applicants. In theory, these judges would be the best equipped to deal with the complicated questions of justice that judges see every day. 1475, 1478 (1970)). 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. Even the best judges disagree with one another: look at the Supreme Court of the United States, which is filled with constitutional scholars from Ivy League law schools who have decades of experience as lawyers and judges, splitting 4-4-1 in the pivotal Obamacare case, National Federation of Independent Business v. Sibelius. 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. See Matthew J. Streb, Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections 10 (NYU Press 2009). Some critics argue elections create political biases which weaken judicial impartiality. "What are the pros and cons of the merit appointment system of selecting judges?" 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. 3. However, voter participation in primary elections tends to skew lower when compared with participation in general elections, with voters in primaries more often consisting of party loyalists rather than casual participants. 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. Nor have states that use merit selection generally had success in ensuring a diverse bench, raising questions about their processes for recruiting and vetting judicial candidates.26. Jurors have more compassion than judges. Another threat to the fairness of courts is rooted in pressures around the reselection of judges currently on the bencha concern not only in states that use elections, but also in appointment systems. Supporters of nonpartisan elections claim that the system stays true to the principles of popular consent and accountability that led to the first judicial elections.18 Nonpartisan elections still hold judicial candidates accountable to the public; however, candidates would not need to find themselves in deference to a larger, party apparatus. As a result, nonpartisan elections become somewhat of a character study, with voters being encouraged to take the time to learn more about the individuals presented on the ballot as opposed to simply their party affiliation. 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. The question of what is the best method of judicial selection in the United States is nearly as old as the country itself. Judges often hear cases relating to high-profile issuesfrom reproductive rights to the death penalty. . During the confirmation of Chief Justice Roberts and Justice Alito, Republicans controlled both chambers of Congress along with the White House. This includes 22 states that use elections for a judges initial term on the bench, and 38 states that use elections for subsequent terms on the bench. 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. Merit selectionparticularly the three-step versionaddresses each of these concerns. Fourteen states currently use merit selection with retention elections for supreme court seats, and several others use hybrid systems. What are the strengths and weakness of the legislative branch? Article III judges have life tenure. There are numerous ways of thinking about justiceso many that there is an entire field of thought for it, called jurisprudence. There are of course valid reasons for withholding certain types of information related to judicial applications, given privacy concerns. 1, Everyone interested in contributing [in a judicial election] has very specific interests. Goelzhauser notes, All the speakers were attorneys or judges who knew the applicants in a professional capacity, and comments were uniformly positive (p. 27). 23. Merit selection arguably the most effective way to appoint a judge but it also has its pros and cons but the ultimate question is whether or not the retention election is a success or failure in the judicial system. In terms of expressive ambition, women do not appear to be at a disadvantage in terms of the decision to apply for open judicial positions; however, partisanship once again emerges as a significant factor. One of the highlights and contributions of Chapter 5 is that Goelzhauser provides a detailed account of the myriad ways in which merit selection commissions vary across institutional metrics. 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. Its particular emphasis on the primary is of note though. 13 (2008). Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. 10. See Gregory L. Acquaviva & John. PUBLISHED BY: The initial term of office is one years. List of the Pros of the Jury System. 18. 14. One set of reforms focuses on mitigating the impact of money and special interests in judicial elections, typically through public financing systems and stronger recusal rules, which govern when judges have to step aside from cases. This potentially means that any "merit-based" system could be used to cover up politically driven judicial appointments from scrutiny. You know its there, and you try not to think about it, but its hard to think about much else while youre shaving.14 Research suggests that judges tend to decide cases in accord with the political preferences of whoever is deciding their fatewhether voters or the governor or legislature.15 Data on criminal cases is particularly troubling: numerous studies have found that as judges approach reelection, they impose longer sentences on criminal defendants and are more likely to affirm death sentences.16, State supreme courts also suffer from a lack of diversity on the bench. Merit selection went through a period of broad adoption in the 1960s and 1970s. The Diane Rehm Show discusses how judicial elections and appointment processes impact fairness in state courts. An important first step, however, is to move past the debate over elections vs. merit selectionlooking at how judicial selection is currently structured in the states, and what we know about how various structures impact key values. Instead, these primary elections typically narrow the field to two candidates for the general election. See John F. Kowal, Brennan Ctr. Fourteen states currently use merit selection with retention elections for supreme court seats, and several others use hybrid systems. Today, 33 states along with the District of Columbia use some form of merit selection.24. These are just a few examples of how the selection of state court judges has become increasingly politicized, polarized, and dominated by special interestsparticularly in the 39 states that use elections as part of their system for choosing judges. Sherrilyn A. Ifill, Judicial Diversity, 13 Green Bag 45, 48 (2009), available at http://www.greenbag.org/ v13n1/v13n1_ifill.pdf. Pros And Cons Of The Texas Judicial System. 17. Given its nature, the Ohio method shares many of the strengths and weaknesses of both the contested partisan and the contested nonpartisan judicial election methods. The judge then . 1. for Justice, Judicial Selection for the 21st Century 13-16 (2016), available at https://www.brennancenter.org/publication/judicial-selection-21st-century. 12. See, e.g., Joanna Shepherd, Justice at Risk (2013), available at http://www.acslaw.org/ACS%20Justice%20at%20Risk%20(FINAL)%206_10_13.pdf. Upon reading Goelzhausers description, one wonders whether expanded opportunities for public comment could help assuage concerns of transparency and public participation in the merit selection process. 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. Merit selection and retention is a system of selecting Justices established by the voters when they amended the Florida Constitution in the 1970s. In light of these findings, Goelzhauser recommends that those invested in merit selection turn their attention to attendant issues such as candidate pool construction and commission decision-making (p. 127). Critics of contested partisan judicial elections assert that the very nature of engaging in party politics conflicts with the ideals of a free and independent judiciary.15 Publicly linking a judge (and, more broadly, the court) to a major political party or parties can create a loss of confidence in the judiciarys ability to remain impartial in its decisions. Funding for FRONTLINE is provided through the support of PBS viewers and by the Corporation for Public Broadcasting. eNotes.com will help you with any book or any question. 4. But no state has moved from contested elections to a merit selection system in more than 30 years. 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