The identifying feature of merit selection is its two-stage appointment process: An appointed commission winnows a list of candidates and then forwards that list of candidates to the governor for appointment. Each process has its pros and cons but there is one that easily stands out from the others. Q. After 245 years, the United States has not adopted a single unified method with which to select judges. . The Appointments Clause, more specifically Article II 2, provides that the president of the United States shall nominate, and by and with the Advice and Consent of the Senate, shall appoint. A merit-based appointment system prevents voters from making this mistake. Do some institutional specifications make certain merit selection systems more susceptible to capture, which could affect the systems ability to deliver on things like the appointment of high-quality jurists? While there is growing recognition of the problems facing state courts, many of the proposed solutions have not been fully responsive to these challenges. 19. It is also timely, as several states continue to tinker with the way judges are appointed. 3. However, any judicial appointment system is rife with cons as well. 26. FLORIDA: Judges for the supreme court and district courts of appeal are chosen through a merit selection involving a nominating commission. 16. Q. What are the pros and cons of electing judges? 10. 28. Assisted appointment, also known as merit selection or the Missouri Plan: A nominating commission reviews the qualifications of judicial candidates and submits a list of names to the governor, who appoints a judge from the list. Guest columnists write their own views on subjects they choose, which do not necessarily reflect the opinions of this newspaper. Doing so, proponents claim, ultimately allows for the most qualified candidates to join the judiciary. 18. Article III judges have life tenure. Studies of the U.S. government study more individuals than parties. As such, the What are some pros and cons of appointed judges? FRONTLINE is a registered trademark of WGBH Educational Foundation. 10. Here are some of the pros and cons of electing judges. There are also normative questions about how to balance these values when they come into tension. On average, judges will earn between $180,000 and $270,000 per year. That said, the ensuing year saw a progressive majority at the states constitutional convention push through a proposal allowing primary nominations for elected offices. One concern expressed about merit selection is the removal of direct public participation in the selection process, as compared to elections (p. 3). /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. Several of the most serious threats to equal justice stem from the growing politicization of judicial elections. 3. . DOWNERS GROVE I agree that something should be done to improve the judicial selection . While there is significant variation in merit selection systems, states generally utilize nominating commissions to screen candidates and present a slate to the governor, who must select from among the nominees. D. Castiglione, Judicial Diversity on State Supreme Court, 39 Seton Hall L. Rev. 23. 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. Liberals, on the other hand, favor judges like Justice Ginsburg or Sotomayor, who are willing to expand the language of the Constitution to "create" civil rights that are not mentioned in the Constitution but which are clearly "meant" to be there. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting); see also generally Jeffrey Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (Oxford Univ. Judges based in areas that favor one party over the other may be incentivized to author decisions that help their reelection efforts rather than making their rulings on the merits to the best of their ability. 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. 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 Diane Rehm Show discusses how judicial elections and appointment processes impact fairness in state courts. 1053 (2020). for Justice, How Judicial Elections Impact Criminal Cases 7-11 (2015), available at https://www.brennancenter.org/publication/how-judicial-elections-impact-criminal-cases. 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. 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. . 1475, 1478 (1970)). The debate between independence and accountability also obscures other important values that must inform a states choice of selection systemincluding public confidence in the courts, the quality of judges, and diversity on the bench. Iowa Governor Kim Reynolds recently signed legislation that would increase her appointment power over the state's judicial merit selection commission by removing the senior supreme court justice from the 17-member commission and giving the governor the authority to fill the particular seat. The decision to run for office entails substantial cost that may dissuade potential candidates. Prac. However, he pointedly notes that serious concerns of transparency accompany merit selection systems (p. 139), concerns that are as important as the other findings produced by Goelzhausers analyses. The theme this year is "Celebrate Your Freedom: Independent Courts Protect Our Liberties.". Michael ODonnell, Commander v. Chief: The Lessons of Eisenhowers Civil-Rights Struggle with His Chief Justice Earl Warren, The Atl. The article summarizes five such methods, some of their history, as well as pros and cons. 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. (Mar. In their attempts to resolve this struggle, each proposed system of judicial selection further highlights their inherent strengths and flaws. I would much rather have a constitutional scholar, a judge with vast experience in the law itself, than someone with a pretty face and a good election slogan who knows how to be popular. 1589, 1617-21 (2009), available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1409&context=dlj. Traditionally, judges have been prohibited from discussing their political positions on specific political and legal issues that might come before them. Democrats described the move as a power grab. The impact of this change is yet to be seen; however, Goelzhausers discussion in Judicial Merit Selection: Institutional Design and Performance for State Courts provides a much-needed theoretical and empirical lens through which to examine the motivations and potential consequences of such institutional adjustments. 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. Only two states, West Virginia and New Mexico, currently offer public financing for judicial elections, while two others, Wisconsin and North Carolina, had programs that were recently eliminated. PUBLISHED BY: The views expressed are solely those of the author. Thirty-eight states use elections as part of their selection process at the supreme court level. The substantial variation that accompanies constitutional and statutory design of merit selection systems also receives scant attention from scholars. . Judges are not politicians, even when they come to the bench by way of the ballot.Williams-Yulee v. The Florida Bar (Roberts, C.J.) 21. Goelzhauser finds consistent evidence of the influence of partisanship at the gubernatorial appointment stage, with Democrats being systematically disadvantaged in regards to appointment probability (p. 70). Goelzhauser challenges the institutional homogeneity assumption (p. 104) that typically accompanies research on merit selection commissions. 8. A study of the Nevada Supreme Court found that in 60 percent of civil cases decided in 2008-09, at least one of the litigants, attorneys, or firms involved in the case had contributed to the campaign of at least one justice.10 Weak recusal rules mean that judges face few barriers in hearing cases involving major financial supporters, particularly when that support takes the form of independent expenditures, which are less regulated. eNotes Editorial, 11 Jan. 2018, https://www.enotes.com/homework-help/what-pros-cons-merit-appointment-system-selec-396472. With the partisan election is makes the voting process go along much faster seeing as they can just head to one of 3 columns, either Democrat, Republican or Independent, and they don't have to sift through a huge list of people choosing which would be best to vote for. 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. 2023. Who are the experts?Our certified Educators are real professors, teachers, and scholars who use their academic expertise to tackle your toughest questions. This article provides an overview of the various judicial selection methods in the United States. They are first nominated by the president of the United States, and then with the Advice and Consent of the U.S. Senate, confirmed pursuant to the Appointments Clause in Article II of the U.S. Constitution.2 Envisioned by the framers as a means to insulate the courts from shifts in the public consensus, life tenure is derived from the good Behaviour clause in Article III of the Constitution, a concept tracing back to England.3 This system of life tenure for Article III judges has existed, more or less uninterrupted, since the Constitution was ratified in 1788. 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. 579, 640 (2005) (noting Professor Raoul Berger traced the phrase hold their Offices during good Behaviour to the [British] Act of Settlement of 1701 (which protected the independence of English judges by granting them tenure as long as they conduct[ed] themselves well, and provided for termination only through a formal request by the Crown of the two Houses of Parliament) and to earlier English traditions) (citing Raoul Berger, Impeachment of Judges and Good Behavior Tenure, 79 Yale L.J. As such, the Atl and flaws, 1617-21 ( 2009 ), at... Some pros and cons of appointed judges from making this mistake Castiglione judicial... 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