The Judicial Independence through Fair Appointments Act

By Greene, Norman L. | Fordham Urban Law Journal, January 2007 | Go to article overview

The Judicial Independence through Fair Appointments Act

Greene, Norman L., Fordham Urban Law Journal


Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system.... If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges. (1)


The United States Supreme Court's 2002 decision in Republican Party of Minnesota v. White (2) and lower court decisions following it in various states have intensified the debate over alternatives to election, such as appointment of judges. According to these decisions, judicial candidates may state their own personal views on political and legal issues and to some extent personally solicit campaign funds. The cases have raised concerns that judges are committing or giving the appearance of committing themselves to outcomes and compromising their neutrality.

Virtually every state appoints some judges, whether the appointments are of interim judges who are selected to fill unexpired terms of departing judges, initial appointments of all judges, or something in between. A commission-based model of appointment, in which a commission recommends a limited number of candidates for the executive or appointing authority to select, has been the classic appointment model for states for decades. Yet there are many possible variables even for commission-based systems.

The Judicial Independence Through Fair Appointments Act is a model act which provides a merit-based system for selecting a qualified, independent, accountable, and diverse judiciary based on close study of existing systems. (3) It provides the entire structure of a judicial selection by appointment system, building on concepts in established commission-based appointment plans and incorporating important refinements. Although the act is designed as a statute, many states may need or wish to convert some or all of it into a constitutional provision in order to increase the permanence of the scheme or because a constitutional amendment is otherwise required. Selected portions may also be enacted separately as rules and regulations governing the process.


The Judicial Nominating Commission and Commissioners

The principal element of the model act is a judicial nominating commission, which is subject to the oversight of a judicial nominating review commission. The mandate of the judicial nominating commission is, among other things, to seek and receive applications from candidates; review their credentials; interview them as appropriate; investigate them through the due diligence process; and propose nominees for the executive to select. The act provides alternatives in which the commission proposes three or five individuals, depending on the preferences of the enacting state. (4)

Judicial nominating commissions are created for each district for the trial courts, for each department or circuit for intermediate appellate courts, and for the highest court, a statewide commission is created. (5) A department or circuit is presumed to be the area served by a single intermediate appellate court, which would include a number of trial courts. The model act takes the position that the selection process should be decentralized through a number of commissions, with local chief executives selecting judges for local courts and with the governor selecting judges in other cases. Decentralization helps ensure that those involved in the judicial selection process are familiar with the area which the court serves. Some states, however, may have a more limited pool of available commissioners or significantly fewer judicial positions to fill than other states and therefore may wish fewer commissions. Alternatives suggested include one judicial nominating commission for all courts of the state or one commission for a department or circuit to nominate judges for both the mid-level appellate court and trial courts within the department or circuit. …

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