Merit Selection and Judicial Elections
With oral arguments in Williams-Yulee before the Supreme Court earlier this year, attention has once again focused on the impact of money in judicial campaigns. The question of how judges can remain impartial looms large when judges must stand for general election or receive a sufficient number of votes to retain their seats in elections at regular intervals. Furthermore, where judges are subject to electoral pressures (including, but not limited to the need to campaign), a serious concern about the public’s ability to trust that their courts will remain apolitical arises.
These are not merely academic questions. Surveys routinely show that voters believe elections influence judicial decisionmaking and a connection between judicial campaign spending and rulings in criminal trials has been demonstrated, including harsher sentences and longer sentences. A study of judges in Alabama demonstrated that in election years, those judges were more likely to exercise their authority to over-ride a jury’s sentence of life in favor of a sentence of death. Similar effects are shown in civil trials as well.
Florida Supreme Court Justice Barbara Pariente and retired Texas Supreme Court Chief Justice Wallace B. Jefferson have published an editorial in the Dallas Morning News, expressing alarm about the harms which flow from the influence of money in judicial elections. The justices believe that merit selection systems are the solution.
Merit selection systems of some type, for some judicial offices and some vacancies, are in place in 34 states and the District of Columbia, according to the American Judicature society. (The justices place this number at 23, likely because some states use a merit selection process only for mid-term vacancies). Merit selection systems vary in the details, but generally merit selection systems use a nominating commission comprised of lawyers and non-lawyers to select qualified candidates for the judicial vacancy. The governor appoints a candidate from the list, and in some states, the legislature confirms the appointment. A good over view of the process is available at judgepedia.org with more detail available at the American Judicature Society’s judicialselection.us.
Merit selection systems, of course, are not without problems, including the politics inherent in appointing or selecting commissioners for the selection committee. Institutional and vestigial racism also limits the diversity of candidates who meet merit selection criteria. This may account for why merit selection has never been a popular suggestion in Illinois, where judges are nominated in partisan primaries and elected in nonpartisan general elections.
However, two recent legislative proposals in Illinois look at ways to bring merit selection criteria into the electoral process. One proposal, offered by Rep. Kelly Cassidy, proposed a merit retention process: an independent judicial commission would use objective performance measures to evaluate the performance of sitting judges. Those judges deemed qualified to retain their seats would retain them and those who did not meet performance standard would have the option of running on a retention ballot. A second proposal, offered by Sen. Bill Cunningham, would raise the percentage of yes votes required to retain judicial office and would also establish an independent judicial commission to assess the qualifications of judicial candidates. Judicial candidates would have to meet certification criteria in order to run for office.
Public scrutiny of judicial elections, judicial campaigns, and the perception of bias in the judiciary is on the rise. Evidence is mounting that perception of bias in courts with elected judges has significant basis in fact. States will have to examine and reform their systems for filling judicial vacancies if our courts are to retain respect, authority and efficacy. It’s impressive to see justices taking these issues seriously.