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.
Continue reading “Indiana legislature considers expanding merit selection for state judges”
From the Palm Beach Post: Santino says she broke rules in election but still fit to be judge.
The judge, who was elected in November, is facing disciplinary action for four ethics violations, stemming from campaign statements that impugned the integrity of her opponent and the entire judicial process. Of note, Judge Santino sent a campaign email disparaging her opponent’s criminal defense work and is tied to a Facebook page proclaiming that her opponent “has made a lot of money trying to free Palm Beach County’s worst criminals.”
Judge Santino faces a disciplinary hearing before another state judge this week, after which recommendations will be made to the state supreme court. From an organizational perspective, this is another interesting example of the courts policing the actions of their own members even when those actions fall outside the strict definition of judicial activity.
The case, alas, is also another example of how contested judicial elections can compromise both the actual and perceived impartiality of judges. Most judges, of course, never run into ethical issues of this type. But elections vastly increase the risk of such ethical violations, and the misbehavior of a handful of judges or judicial candidates can have damaging ripple effects on the public trust of the entire judiciary.
As I reported previously, North Carolina Governor Roy Cooper vetoed a bill that would require state trial court elections to be partisan. Candidates would have to participate in party primaries and run under a specific party affiliation. Disappointingly, the state House of Representatives voted to override the veto yesterday. The issue now moves to the state Senate.
UPDATE: The Senate has completed the veto override. All North Carolina judicial elections will be partisan going forward.
Judge Neil Gorsuch’s opening statement in his Supreme Court confirmation hearings was a lovely ode to his family, upbringing, and the judges and lawyers who mentored him throughout his career.
Two passages in the 16-minute speech jumped out at me:
As a lawyer working for many years in the trial court trenches, I saw judges and juries — while human and imperfect — trying hard every day to decide fairly the cases I presented. As a judge now for more than a decade, I have watched my colleagues spend long days worrying over cases. Sometimes the answers we reach aren’t ones we would personally prefer. Sometimes the answers follow us home and keep us up at night. But the answers we reach are always the ones we believe the law requires. For all its imperfections, the rule of law in this nation truly is a wonder — and it is no wonder that it is the envy of the world. Once in a while, of course, we judges do disagree. But our disagreements are never about politics — only the law’s demands.
Of course, I make my share of mistakes. As my daughters never tire of reminding me, putting on a robe doesn’t make me any smarter. I’ll never forget my first day on the job. Carrying a pile of papers up steps to the bench, I tripped on my robe and everything just about went flying. But troublesome as it can be, the robe does mean something — and not just that I can hide coffee stains on my shirt. Putting on a robe reminds us that it’s time to lose our egos and open our minds. It serves, too, as a reminder of the modest station we judges are meant to occupy in a democracy. In other countries, judges wear scarlet, silk, and ermine. Here, we judges buy our own plain black robes. And I can report that the standard choir outfit at the local uniform supply store is a pretty good deal. Ours is a judiciary of honest black polyester.
I am not the only one to be struck by the phrase “honest black polyester,” but it certainly sits right with anyone who has worked with a judge day in and day out. The unrelenting human-ness of judges, struggling to get it right and self-constrained by their own respect for the law, characterizes American courts far more than the know-it-all lawgiver or the robed politician.
Full C-SPAN video of Judge Gorsuch’s statement is here.
The Philadelphia Inquirer reports on the results of last week’s ballot lottery for candidates seeking a position on Philadelphia’s Court of Common Pleas (its general jurisdiction trial court). Forty-eight candidates entered the state primary for ten open positions, and their ballot order was determined by lottery. The article nicely details the consequences of ballot position: candidates at the top have a tremendous strategic advantage in the primary election, regardless of their relevant experience, expertise, or skill.
Judicial elections were the standard for state courts until the mid-twentieth century, but their flaws have become increasingly exposed over time. Poor or incompetent judges are elected, experienced jurists are removed in party sweeps, and public confidence falls as judges are treated as ordinary politicians. Groups like Pennsylvanians for Modern Courts have been at the forefront of pushing for positive change in that state’s judicial selection methodology.
Contested elections can — and often do — produce fine judges. And judges should be accountable to the public they serve, no matter how they are chosen. But the surety of choosing a good judge by contested election increasingly feels like a lottery itself.
Supreme Court confirmation hearings for Neil Gorsuch begin today with the introduction of the nominee by his home state senators, Michael Bennett and Cory Gardner of Colorado. It is a nice bipartisan tradition for the home-state senators to introduce all federal judicial nominees, presumably dating back to a time when the rest of the Senate was not assumed to be familiar with a candidate. While almost all post-Robert Bork Supreme Court hearings have been contentious at times — usually unnecessarily so — it is a nod to decorum that the Senate still begins every hearing with such a welcoming gesture.
Home-state bipartisanship in judicial selection is not just a matter of courtesy. Senators from many states have developed bipartisan screening committees to help them recommend qualified candidates for lower federal judgeships to the President. These screening committees review the qualifications of those interested in judgeships on federal district courts and circuit courts of appeal, and pass the names along to the home state senators, who then pass along names to the President. While the President has ultimate discretion in choosing a nominee for any Article III judgeship, the use of screening committees effectively pre-ratifies the candidate, and helps ensure a much smoother confirmation process. The Supreme Court represents a special circumstance where screening committees are not used, but we can hope that both President Trump and the Senate will continue to rely on them where appropriate in considering lower court nominees.
We will be following the Gorsuch hearings this week, with commentary to follow on how the hearings reflect and impact the current relationship between Congress and the courts.
I previously reported on a bill in the North Carolina legislature that would convert the state’s elections for trial judges into partisan races. The practical effect would be that judicial candidates would first have to clear party primaries, and then would appear on the ballot with a party designation.
This was a bad idea, and Governor Roy Cooper has vetoed the bill.
Although Cooper is a Democrat and the North Carolina legislature is controlled by Republicans, the acknowledged inefficacy of partisan judicial elections is not itself a partisan issue. Politicians and commentators from across the political spectrum agree that in the modern era, party labels for judicial candidates weaken the public legitimacy of the judiciary, offer little significant information to voters, and are at best extremely awkward for judges. The North Carolina proposal was a step backward.
North Carolina used to select all of its state judges through partisan election. Judicial candidates would have to win a party primary, and would appear on the ballot with a party designation. In 1996, the state legislature eliminated the partisan designations for state superior court races, and in 2001 did the same for district courts. Judges still face contested popular elections, but do not run under any party affiliation.
North Carolina’s move put it in good company. While a handful of states still have partisan races, most states that still elect their judges long ago moved to a nonpartisan system. Nonpartisan elections are certainly not foolproof, but deliberately omitting party affiliation from the ballot at least reinforces the message that voters should expect their judges to be impartial in performing their official duties.
This week, however, the North Carolina Senate chose to revert to partisan judicial elections. The state House of Representatives passed a similar (but not identical) bill earlier in the session. There is speculation that the Governor may veto the bill. Stay tuned.
A recent court appointment in West Virginia highlights the interplay between a court system’s internal management and its external environment. Gary Johnson served as a state circuit court judge for 24 years before losing his reelection bid last year by 220 votes. Last month, his opponent, Stephen Callaghan, was suspended from his judicial duties for two years for improper conduct during he campaign. (Callaghan’s campaign apparently issued a flyer implying that Judge Johnson partied at the White House with Barack Obama, an action deemed to be a violation of the state’s Code of Judicial Conduct and Rules of Professional Conduct.)
Judge Johnson could not undo the election results, but he landed on his feet quickly. In January, he was appointed interim Administrative Director of the West Virginia courts. Yesterday, the state supreme court gave him the job permanently.
Continue reading “Former West Virginia judge appointed state court administrator after bizarre election campaign”
When Justice Steven Taylor recently retired from the Oklahoma Supreme Court, Governor Mary Fallin tapped 35-year-old Patrick Wyrick to fill his seat. Seats on the court are geographically distributed, and Wyrick was among three finalists from the state’s Second Judicial District whose names were submitted to the Governor for final consideration. The final nominees were chosen by the state’s Judicial Nomination Commission (JNC).
But now Justice Wyrick’s appointment is being challenged by the Oklahoma Chapter of the ACLU, on the grounds that he does not actually reside in the Second Judicial District. In preliminary arguments last week, Wyrick’s lawyer dismissed the challenge, asserting that the JNC’s selection of the three finalists is effectively unreviewable. The ACLU countered that no state entity, including the JNC, has all-powerful status.
The decision is now before the state supreme court itself, leaving the eight remaining justices to decide the fate of a potential colleague. The ACLU has further requested that any sitting justice who recommended Wyrick for a judicial position be recused from considering the case.
Certainly a fascinating example of court interdependence that bears watching.