Many states conduct periodic performance evaluations of their judges, either for internal education and improvement, or to educate voters in advance of judicial retention elections, or both. No state formally evaluates judicial candidates along the same criteria — a process I have called prospective performance evaluation — but the task is so important that local and state bar associations sometimes undertake it themselves.
The Philadelphia Bar Association recently unveiled their new evaluation process for judicial candidates, and it is impressively thorough — much more than this local news report suggests. The standards set forth by the Philly Bar are carefully done and well worth a review by voters and court observers alike.
Those who are truly concerned about money and politics* might take notice of this past weekend’s fundraiser for Jacob Gold, “the dean of Democratic District Leaders,” in Brooklyn. The fundraiser brought out “a small army of attorneys,” all of whom hoped to wow the party bosses and win one of a handful endorsements for the bench in the coming election.
I have previously noted the rather nauseating control that party bosses maintain over the selection of New York’s trial judges. Events like this offer little solace for the prospect of an impartial and independent judiciary. New Yorkers deserve much better.
* As opposed to those who simply and mindlessly rant about Citizens United.
State legislatures continue to propose and advance bills that will impact their respective court systems. Here are some of the latest developments:
- Indiana’s proposal to convert Marion County (Indianapolis) to a merit selection system is heading to conference committee. The latest version of the bill calls for a 14-member nominating committee to choose three final candidates for the governor’s selection; four of the committee members would be chosen from voters. Previous coverage of the Indiana bill and its history is here.
- In Arkansas, a new bill would change the way state judges are elected in Cumberland County Superior Court. The current election system grants seats on the bench to the top two vote-getters among all candidates. The bill would require candidates to declare which of the two judicial seats they are seeking.
- The Florida House of Representatives has passed an amendment to the state constitution that would impose term limits on state appellate judges, including supreme court justices. This is a terrible idea, but happily it is still in its infancy. The state senate would also have to approve the move, and then voters would have to approve it in 2018. Similar efforts in others states have been defeated in recent years after they were exposed for the transparent political proposals that they were.
- Nebraska’s unicameral legislature has advanced a bill to raise judicial pay in the state.
Nat Stern (Florida State) has posted his new article, Judicial Candidates’ Right to Lie, on SSRN. Here is the abstract:
A large majority of state judges are chosen through some form of popular election. In Republican Party of Minnesota v. White, the Supreme Court struck down a law forbidding certain judicial campaign speech. A decade later, the Court in United States v. Alvarez ruled that factually false statements do not constitute categorically unprotected expression under the First Amendment. Together these two holdings, along with the Court’s wider protection of political expression and disapproval of content-based restrictions, cast serious doubt on states’ ability to ban false and misleading speech by judicial candidates. Commonly known as the misrepresent clause, this prohibition has intuitive appeal in light of judges’ responsibilities and still exists in many states. Given the provision’s vulnerability to challenge, however, states may be able to avert chronic fabrication by judicial candidates only by removing its ultimate source — judicial elections themselves.
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.
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.