What Makes a Good Appointive System for the Selection of State Court Judges: The Vision of the Symposium

Article excerpt

I. The Vision of the Symposium
   A. Introduction
   B. The Context
      1. Concerns About Elections
      2. "No Anomalous Political Mugging": The
         Second Circuit's Decision in Lopez Torres v.
         New York State Board of Elections
      3. Designing the Alternative

II. The Symposium
    A. The Importance of Judicial Appointments
       Throughout the United States
    B. The Principal Modes of Appointment
    C. The Need for Public Education on the Role of
       the Judiciary
    D. Selecting a Judicial Nominating Commission
    E. Rules and Training of Judicial Nominating
       Commissions
    F. Confidentiality of Commission Proceedings
    G. Review and Oversight for Commission
       Proceedings
    H. Diversity in Appointment Systems
    I. The Role of Judicial Discipline in Judicial
       Selection
    J. The Reselection of Judges in Appointment
       Systems
    K. Judicial Performance Evaluations in Appointive
       Systems
    L. Pre-Judicial Education--European Models
    M. Empirical Research on Appointive Systems
Conclusion
Symposium Acknowledgments

Pessimists about the benefits and chances of reform can be found everywhere. In my view, whatever we believe about any particular system, we should all approach our democracy as reformers and agents for change, especially lawyers, who take an oath to uphold and improve the law. While some sit back and praise what we all believe to be the greatest government in the world, others ... continually focus on not what our democracy is, but what it should be. (1)

I. THE VISION OF THE SYMPOSIUM

A. Introduction

What makes a good commission-based appointment system for the selection of state court judges? (2) This is an important question because the models proposed by reformers and adopted by the states should be the best available. Through the presentations at Fordham Law School on April 7, 2006 and the articles in this book, the symposium sought to guide the reform of judicial selection systems by identifying the best approaches to appointing judges, existing or proposed. (3) To paraphrase the introduction to this Article, the symposium approached the subject as an agent for change. (4) The subject is multi-disciplinary, so the symposium included a number of panelists who are political scientists as well as lawyers, law professors, and judges; because the subject involved various states, the twenty participants came from fifteen different ones.

This Article will proceed in two parts. First, it will set forth the context of the symposium, including reflections on how judges are being selected now through the elective process, the need for a better approach to judicial selection, and the particular climate in New York at the time of the symposium and thereafter. The New York discussion will focus on the district court and Second Circuit decisions in Lopez Torres v. New York State Board of Elections, which exposed and struck down as unconstitutional New York's scheme for selecting certain trial court judges, under which political party leaders dictated judicial selection. (5) Second, it will review the principal topics and themes of the symposium, including highlights of the presentations and articles of the participants on how a well-constructed judicial appointment system should be designed. To quote one of the symposium's panelists, "Embracing a judicial nominating commission scheme is not enough. Choosing the appropriate paradigm is paramount." (6)

B. The Context

1. Concerns About Elections

Reformers have long proposed the use of commission-based appointive systems as a cure for judicial selection problems, principally but not exclusively with elections. (7) These problems include improper incentives for elected judges to decide what might be popular rather than decide the case upon the basis of the law and the facts, and the ills of costly, nasty election campaigns. …

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