Wyoming's Judicial Selection Process: Is It Getting the Job Done?
Kite, Marilyn S., Fordham Urban Law Journal
The rights guaranteed by the United States Constitution to the citizens of our country mean little without an independent judiciary to enforce those rights. As Alexander Hamilton commented in THE FEDERALIST PAPERS, the method by which judges are selected unavoidably impacts their ability to function independent from political influence. (1) In general, the goals of a judicial selection system should be to encourage judicial independence, recruit the highest quality judiciary, provide for accountability, create a representative judiciary, and maintain public confidence in the fairness and integrity of the judicial system. (2) Any time politics are inserted into the judicial selection process, judicial independence is compromised. (3) Public perception of political influence on the judiciary, whether through money or political affiliation, undermines the citizenry's confidence in the integrity of the system. In the words of the primary author of Wyoming's judicial selection system, R. Stanley Lowe, an orderly society needs a judiciary that commands respect. (4)
In discussing the uniquely American concept of separation of powers, James Madison noted that for each branch of government to have a "will of its own," the members of each branch should have "as little agency as possible in the appointment of the members of the others," ideally requiring the people to select the members of each branch. (5) Madison recognized that selection of the judiciary in that manner would be "inexpedient," however, in part because the primary concern in the selection of the members of that branch of government should be qualification. (6) The rejection of public election of the judiciary left appointment as the only viable method of selection. Appointment was deemed sufficiently compatible with the concept of separation of powers because, as the founders noted, life tenure for federal judges "must soon destroy all sense of dependence on the authority conferring them." (7) Thus, although federal judges are inherently affected by the political process at the outset of their judicial careers because they are appointed by the chief executive and confirmed by the Senate, lifetime appointments minimize political influence over time. (8)
Many state constitutions did not, however, follow the federal model. (9) Thousands of state judicial positions are filled every year across our country by varying methods of selection, including appointments by the chief executive, partisan elections, non-partisan elections, and, as in Wyoming, gubernatorial appointments from lists of nominees chosen by judicial nominating commissions, usually followed by retention elections. (10) Without life tenure, how can states select judges who are independent? The answer lies in the judicial nominating commission form of judicial selection. The advantage of the judicial nominating commission system, as opposed to politically-based systems such as elections or pure executive appointment, is that it focuses on the qualifications of the judicial candidate, rather than his or her political or personal connections. (11) The commission-based system is designed to emphasize the factors which should be relevant in choosing a judge, including judicial temperament, intellect, training, integrity, and experience. (12)
The purpose of this Article is to explain Wyoming's commission-based judicial selection process, study how it has performed over the years, see what lessons we can learn from that history, and consider how it can be improved. Throughout this Article, the focus will be on what attributes of a judicial selection system best result in an independent, accountable, and vibrant judiciary.
A HISTORY OF WYOMING'S JUDICIAL SELECTION PROCESS
Prior to 1972, judges in Wyoming were elected in non-partisan elections. (13) Elected judges, like all political officials, were chosen by popular vote and not, necessarily, on qualifications or merit. …