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Bar News - June 15, 2012


Opinion: Judicial Selection - Beyond the Elected vs. Appointed Debate

Editor’s note: In February 2012, the Institute for the Advancement of the American Legal System at the University of Denver (IAALS) gathered individuals from a range of perspectives to discuss judicial selection, retention, and evaluation processes. The event was part of the IAALS Quality Judges Initiative which "promotes judicial selection processes that preserve the impartiality of the judiciary, while still providing accountability." R. Matthew Cairns, an attorney with Gallagher, Callahan & Gartrell in Concord, and immediate past President of the Defense Research Institute, was honored to be invited to participate in the Roundtable. He was impressed with the discussion and found the outcome to be thought-provoking. He forwarded the report to Bar News to share it with his NH colleagues. The following is a condensed version of the IAALS report.

The goal of the meeting was to explore whether a group of people from diverse backgrounds and with disparate viewpoints could arrive at a consensus on what we are looking for in our court systems and our judges--and about the features of various selection systems that might best serve these goals. Former Arizona Chief Justice Ruth McGregor, in a keynote address the night before the Roundtable, framed the issue: "Unfortunately, when we discuss judges, we often jump immediately to the question of how we should select them . . . . Tomorrow, we will begin our discussion by moving one step back and answering the initial question of what we think characterizes a ‘good judge’ and what attributes define a ‘good court’." From this starting point, Justice McGregor explained, participants would be well positioned to discuss how best to assure the selection of judges and courts with these attributes, as "in any area, it is difficult to decide how to reach a goal if we do not first define what that goal is."

The following are areas of broad agreement arrived at by the Roundtable:

Desirable attributes of court systems
  • Transparency
  • Accountability
  • Accessibility
  • Timeliness
  • Impartiality
  • Trustworthiness
  • Fair, efficient, and predictable process
  • Respect for demographics/social makeup of community
  • Diversity among judges
  • Willingness to innovate
  • Responsiveness to user needs
  • Commitment to public service
  • Respect for jurors
  • Respect for, and promotion of, the jury system
  • Proactive commitment to educating the public about the courts
  • Adequately funded
Desirable attributes of individual judges
  • Participants identified the following desired attributes of individual judges:
  • Fairness
  • Impartiality
  • Core of relevant legal knowledge and experience
  • Integrity
  • Open-mindedness
  • Thoughtfulness
  • Humility
  • Productivity and efficiency
  • Clarity
  • Patience and courtesy
  • Community involvement
  • Strong communication skills
  • Administrative capacity
  • Fidelity to the rule of law
  • Adherence to the mission of the courts
  • Courage
  • Intelligence
  • Wisdom
  • Desire to keep abreast of the law
  • Hard-working
  • Deep respect for others
  • Ethical
  • Respect for, and promotion of, the jury system.
Principles for Judicial Selection

Discussion of the hallmarks of judicial selection systems that would be most likely to produce court systems and judges that embody the identified attributes focused on key themes: the importance of voter participation in choosing judges and of public accountability for judges, tempered by concerns about judges needing to raise money and align with certain constituencies in order to attain, or remain on, the bench; the fact that debates about judicial selection quickly devolve into polarity and defensiveness, often with little true understanding of how the courts work and what their role is in our constitutional framework; and the need for supporters of judicial independence to do a better job of mobilizing a broad constituency, educating the public, and being open to suggestions for improvement.

These were areas of consensus on the ideal features of judicial selection systems:

1. The selection system should provide checks and balances. No single person or entity should have sole authority in the selection of judges.

Although Roundtable participants did not agree on who should have a role in selecting judges, they did agree that this power should not be vested in a single person or entity. Spreading responsibility for the selection process among the branches of government and perhaps other entities would limit the influence of one person or group and likely enhance public confidence in the process.

2. If the governor appoints judges (whether for full terms or to fill vacancies between elections), the use of a nominating commission can guard against perceived or actual patronage in identifying highly qualified applicants for the job.

Without the use of a nominating commission, many Roundtable participants feared the process of gubernatorial appointment would lack accountability and transparency – that there would be the potential for perceived or actual patronage. An intervening mechanism, such as a nominating commission, would direct the democratic influence in a way that would produce an independent, highly qualified, and trusted judiciary. At least one participant expressed the view that governors welcome nominating commissions, as they provide cover for governors in not appointing political supporters or friends and family. Furthermore, nominating commissions can conduct a more thorough and careful inquiry into judicial applicants than can governors and their staff alone.

3. If a nominating commission is used, it should be composed and should operate in such a way that it can act independently and can engender public trust.
Where nominating commissions are used, Roundtable participants agreed that the commission must be broadly representative. A few participants thought that having the governor appoint a significant portion of the nominating commission better preserves democratic input and public accountability.

Involvement by the state bar was a somewhat contentious issue--with respect to both the bar’s role in appointing attorneys to the nominating commission and to their service on the commission. Some Roundtable participants felt it is appropriate for attorneys to play a significant role in the process; others disagreed.

4. The system – including the governor’s appointment and/or the legislature’s confirmation of appointees – should operate under reasonable time restrictions.

Roundtable participants agreed that whatever the details of the process, it should move at a reasonable speed. It is in the best interest of all concerned to have a timetable for the various phases of the process.

5. Judges should appear on a ballot for voter approval or disapproval at regular intervals.

Many participants expressed support for periodic retention elections, some noting that they confer legitimacy on the courts. Although judges in retention election states are perceived as almost always being retained, the retention election nevertheless provides an opportunity to remove a judge, if necessary. One Roundtable participant noted that, even with a robust performance evaluation and retention election process, money and efforts to defeat a judge can be successful.

6. Judicial performance evaluation promotes self-improvement of judges and provides an opportunity for voter education about the proper role of courts and judges.

There was consensus among Roundtable participants that judicial performance evaluation can be a helpful self-improvement tool for judges and can educate the public about the proper role of courts and judges. A number of Roundtable participants agreed that judicial performance evaluation could also be useful as a source of information for voters and other decision makers, as to which judges are falling below performance benchmarks.

7. Judicial terms should be neither too short nor too long (6 to 8 years is preferable), and there should be no limit on the number of terms a judge can serve.

For states in which judges do not have lifetime tenure, Roundtable participants agreed that judicial terms should be neither too short nor too long. Lengthy terms limit the accountability – whether to the governor, the legislature, or the voters – that renewable terms provide. At the same time, shorter terns in appointive systems may make the judiciary more susceptible to the influence of a particular governor, while shorter terms in elective states may entail too frequent distraction from the work of the court.

Roundtable participants were opposed to term limits for judges. Many expressed concern that term limits might dissuade qualified attorneys from pursuing judgeships.

The discussion was neither a referendum nor a caucus. It was merely a discussion among informed citizens from divergent backgrounds and perspectives who share a common interest--ensuring that our court systems and judges best serve our citizenry. There were certainly points of disagreement, but there were fundamental areas of agreement as well, as this report reflects.

More information about IAALS is available at www.iaals.du.edu. Attorney Cairns also encourages readers interested in commenting on this issue to contact him at cairns@gcglaw.com.

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