Academic journal article Fordham Urban Law Journal

Enriching Judicial Independence: Seeking to Improve the Retention Vote Phase of an Appointive Selection System

Academic journal article Fordham Urban Law Journal

Enriching Judicial Independence: Seeking to Improve the Retention Vote Phase of an Appointive Selection System

Article excerpt

[I]ndependence of the judges is ... requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. (1)

The reformer is careless of numbers, disregards popularity, and deals only with ideas, conscience, and common sense. He feels, with Copernicus, that as God waited long for an interpreter, so he can wait for his followers. (2)


Judicial independence and reform seem inextricably intertwined. Even as Alexander Hamilton eloquently argued for the importance of an independent judiciary, the history of our states reveals the difficulty in evolving the best possible system of judicial selection to achieve optimum independence and quality. The inherent resistance to change and the premium to be placed on patience in would-be reformers further complicate the discussion. As the recent symposium at Fordham Law School revealed, a panoply of ideas exists about how to most effectively continue moving toward the ideal system of selecting state court judges. Toward that end, this Essay seeks to address a relatively narrow aspect of the issue: the struggle to improve the effectiveness of judicial retention elections in an appointive selection system. This Essay will start by reviewing the framework of the existing system of selection and retention in Nebraska. It will consider why an appointive system might need, or want, to maintain elective retention. Next, this Essay will consider some of the potential problems related to the effectiveness of existing appointive systems that employ retention elections. This Essay will conclude with some proposals for improving the effectiveness of the retention vote in Nebraska and similarly situated states.


Nebraska's judiciary consists of a supreme court, an intermediate court of appeals, district courts, county courts, juvenile courts, and a workers' compensation court. (3) All judges in Nebraska are appointed by the governor, who chooses from a list of candidates submitted by a judicial nominating commission. (4) Once appointed, judges in Nebraska must stand for periodic non-partisan retention votes. (5) The Nebraska Constitution, the Nebraska Statutes, and the Nebraska Supreme Court Rules set forth the details of Nebraska's system of judicial selection. (6)

Nebraska's existing system of judicial selection is prescribed by the Nebraska Constitution. (7) At Nebraska's inception, Nebraska Supreme Court justices were selected by popular election to six-year terms. (8) Similarly, in 1875, Nebraska began selecting district court judges by popular election to four-year terms and county court judges by popular election to two-year terms. (9) In 1909, the Nebraska Legislature adopted the Nonpartisan Judiciary Act, which barred judicial candidates from official affiliation with any political party. (10) In 1962, Nebraska approved a constitutional amendment adopting a "merit plan for selection of judges" of the Nebraska Supreme Court and the district courts ("the plan"). (11) Nebraska extended the plan to include county court judges in 1974. (12) In 1990, Nebraska approved a constitutional amendment creating the Nebraska Court of Appeals, whose judges are also selected by the plan. (13) The plan also governs judicial selection for Nebraska's juvenile courts and workers' compensation court. (14)

The plan dictates that judicial vacancies "shall be filled by the Governor from a list of at least two nominees presented to him by the appropriate judicial nominating commission. …

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