Indiana legislature considers expanding merit selection for state judges

Merit selection refers to a method of choosing state judges through a nominating commission, which typically selects three candidates and forwards the names to the governor for final selection.  Judges chosen through merit selection are therefore pre-vetted for qualifications, skill, and judicial temperament.  Most states with merit selection protect accountability to the public by appointing judges to set terms on the bench, after which they must seek reappointment or retention before the voters.

I have long championed merit selection as the best process for balancing quality judges and public accountability.  The process is not perfect, but if done thoughtfully — with a balanced and inclusive nominating commission, sufficiently lengthy terms to allow a judge to grow professionally on the bench, and retention elections coupled with a transparent judicial evaluation process — they have proven to be very effective.

Many states around the country choose some or all of their judges through merit selection.  And Indiana, which uses merit selection for trial judges in three large counties (Allen, Lake, and St. Joseph), is now poised to expand the system to Marion County as well.

The proposal comes with some history.  In 2015, the Seventh Circuit Court of Appeals struck down Marion County’s current “pay to play” slating system for electing judges.  That system mandated an equal number of primary ballot positions for Democratic and Republican judicial candidates.  The system, designed to make elections less partisan, effectively rendered general elections meaningless and rewarded candidates who made large financial contributions to their political parties.

The current bill proposing to replace the old system with merit selection is indeed thoughtfully done.  It would establish a 14-member selection committee, with members appointed by bipartisan legislative leadership, political party leaders, the Indianapolis Bar Association, and key legal constituencies.  (Even better would be appointments by the governor and judicial branch, giving every branch of state government some skin in the game.)

The bill also calls for the nominating commission to make recommendations to voters when a judge seeks retention. Such recommendations are important, and the other Indiana counties using merit selection currently have no process for informing the voters of a sitting judge’s performance. But better still would be to create a separate evaluation committee — like the kind used in many merit selection states — that would conduct evaluations and make recommendations for retention. While a nominating commission could make those recommendations in good faith, a separate commission is more removed from the politics of appointment and is more likely to gain the trust of the voters.

Even though this bill is not perfect, it is a vast improvement on the current system. We will continue to track its movement through the legislature carefully.

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