Many states around the country select judges through a merit selection process. While the process can vary between states, typically a nominating commission comprised of both attorneys and non-attorneys screen judicial candidates and make a recommendation to the governor, or in some instances the legislature, concerning the judicial candidates. While no judicial selection system is perfect, merit selection eliminates the need for judicial candidates to initially run for election, which in turn eliminates the need to campaign and fundraise. At some point merit selection judges may have to for retention, but historically retention elections have drawn less attention and partisanship than contested judicial elections.
Since 1913, the American Judicature Society (“AJS”) has promoted sound merit selection systems throughout the country. Recently they issued an “action alert” because merit selection systems are under a “sustained and coordinated attack across the country.” In their action alert, they note that bills are pending in Arizona, Florida, Hawaii, Missouri, Kansas, New York, Oklahoma and Tennessee to significantly modify or eliminate merit selection plans entirely. A copy of the AJS action alert can be found at: ActionAlert.pdf. The alert includes links to all of the pending bills in each state which challenge the state’s merit selection process.
Later this month, DRI’s Judicial Task Force will be publishing a report entitled Without Fear of Favor in 2011, A New Decade of Challenges to Judicial Independence and Accountability, which details the various challenges to judicial independence caused by partisan judicial elections, As the Task Force notes in that report:
Any good trial attorney knows that in a courtroom, perception becomes reality and that maxim holds true for our legal system. The public’s perception of the fairness of our courts is a direct correlation to its confidence in the American justice system and its respect for our rule of law. If the public’s perception of the fairness of our courts is ever lost, immeasurable damage will result to our legal system and the rule of law in our country.
Harsh attack ads and major fundraising efforts that have become the norm in partisan judicial elections are harming the public’s perception of the fairness of our judicial system. The organized defense bar, long a champion of level playing fields and fair court systems must concern itself with these issues. If you practice in one of the states where merit selection is under attack, there are certain things that you can do. Make your views known to your legislators. As the AJS action alert aptly notes, it is of vital importance to keep money, partisan politics, and the influence of special interests out of the judicial selection process. Also consider writing an op-ed piece or a letter to the editor defending merit selection in your home state.
Members of the defense bar are in an ideal position to protect the system of justice and the independence of the judiciary. We must begin to do so before the concept of judicial independence is mortally wounded.