Academic journal article Fordham Urban Law Journal

Designing an Appointive System: The Key Issues

Academic journal article Fordham Urban Law Journal

Designing an Appointive System: The Key Issues

Article excerpt

A leading scholar of state judicial elections has estimated that more than eighty-seven percent of state judges go before the voters at some point in their careers. (1) This figure, endlessly repeated in the literature, has fostered a perception of the ubiquity of judicial elections. (2) Yet one might as readily argue that it is appointment, not election, that dominates judicial selection in the states. Twenty-one states initially appoint the judges of their general jurisdiction courts, while another four states appoint at least some of their trial judges. (3) Twenty-two of the states that have intermediate appellate courts appoint their members, and thirty states appoint the justices of their supreme courts. (4) Moreover, even in states where selection is nominally by election, judges are often appointed to the bench to fill unexpired terms. (5) For example, in a study of accession to state supreme courts from 1964-2004, Lisa Holmes and Jolly Emrey found that more than half the justices (fifty-two percent) in states that elect judges were initially appointed to their positions. (6) This is significant because once appointed, these justices often face minimal or no electoral challenges to remaining in office, (7) thus transforming a nominally elective process into an essentially appointive one. In a study of state supreme court elections from 1980-1994, Melinda Gann Hall discovered that barely half of incumbents (52.1 percent) faced a challenger, regardless of whether they were initially elected to the court or appointed mid-term; furthermore, in only 15.5 percent of the races did they fail to garner more than fifty-five percent of the vote. (8) Appointed incumbents on lower courts are even less likely to face serious opposition. (9) The obvious conclusion is that, although judicial elections may seem ubiquitous, the vast majority of state judges never participate in a competitive election.

In states that combine appointment with retention elections, initial appointment is likewise the determinative decision. Despite some heralded cases in which interest groups targeted and defeated supreme court justices, incumbent judges are rarely unseated in retention elections. (10) In the most comprehensive study of judicial retention elections, involving ten states from 1964-1998, Larry Aspin found that only fifty-two of 4,588 judges (1.1 percent) were defeated when they sought retention. (11) Close elections were likewise rare: the same study noted that the average affirmative vote in retention elections never dipped lower than 69.4 percent during that period. (12)

The frequency of appointment as a means of reaching the bench, combined with the unlikelihood that incumbent judges will be defeated, underscores the importance of establishing a good system of judicial appointment. Judicial reformers have been at the task since 1906, when Roscoe Pound called for the replacement of judicial elections in his famous address on "The Causes of Popular Dissatisfaction with the Administration of Justice." (13) In 1914 Albert Kales, a co-founder of the American Judicature Society, proposed an appointive system that became the basis for the "merit selection" system that has dominated reform efforts ever since. Under Kales's proposal, an independent, nonpartisan commission would nominate candidates to fill judicial vacancies, an elected official--the chief justice--would appoint judges from among the lists of nominees, and the populace in noncompetitive elections would periodically assess the performance of the judges thus selected. (14) Later commission-based appointive systems replaced the chief justice with the governor but otherwise followed Kales's lead. Over time a consensus emerged among reformers in favor of such commission-based appointive systems, which were christened "merit selection" systems. In 1920 the American Judicature Society endorsed "merit selection," and in 1937 the American Bar Association followed suit, providing powerful institutional support for reform efforts. …

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