Preserving Judicial Independence

Judicature, May/June 2012 | Go to article overview

Preserving Judicial Independence

Merit selection of judges has come under increasing attack, with Missouri the latest target for those who seek to politicize judicial selection. Judicial nominating commissions must take concrete steps to demonstrate their effectiveness, in order to counter this trend and maintain their important role as independent bodies free of partisan influence.

Last month, the Missouri House of Representatives voted to support a ballot referendum that would alter the state's long-established nonpartisan court plan. Missouri, the first state to adopt merit selection of judges by establishing an independent nominating commission to review applicants for the state appellate courts and make recommendations to the governor, has become synonymous with the plan. The proposed changes would allow the governor to select four of seven commissioners, remove a requirement that the governor's appointees be non-lawyers, and eliminate the ex officio chair position held by a member of the state's supreme court. The proposal, which will go before voters this November, also increases the number of individuals the commission recommends, from three to four. Most notably, the proposal would permit a governor to appoint a majority of commissioners during his or her first term of office. Taken as a whole, the changes would significantly increase the governor's control over the nominating commission. Florida, where the governor is allowed to appoint commissioners at will, provides a compelling example of the possible implications of these changes, demonstrating how political control of the commissions can alter the selection process.

The sponsor of the Missouri proposal, state Senator Jim Lembke, argues that the current system allows for too much control by the trial bar and "leaves voters with no one to hold responsible for judicial rulings they dislike." His arguments have become commonplace around the country, particularly among a small group of political activists who aspire to force the judiciary to be compliant in the face of strong political winds. For example, in Florida, where three supreme court justices are facing a well-coordinated anti-retention campaign in 2012, the legislature has proposed that all gubernatorial appointments to the nominating commission serve at the pleasure of the governor, meaning that commissioners could be removed without cause. The Wall Street Journal has editorialized "The so-called Missouri Plan for judicial selection has become controversial in dozens of states that use it for giving disproportionate influence to liberals and trial lawyers." A new paper released by the Federalist Society claims that "Nebraska's judicial selection system is still fraught with politics" and proposes greater transparency, including a requirement that the commissioners' votes on recommendations be public.

Despite these claims, however, there is little evidence to suggest that merit selection is being systematically degraded by the vagaries of politics. In fact, a new study by the American judicature Society examines how merit selection systems are functioning in practice by surveying nominating commissioners, and provides evidence that merit selection systems are indeed functioning well. The study is the largest of its kind, with 487 commissioners in 30 states and the District of Columbia participating; it is also the first study of nominating commissioners in nearly 20 years. Nominating commissions function as the defining characteristic of merit selection systems, yet commissioners rarely speak publicly about the process. The anonymous survey provides a unique opportunity for those most familiar with the system - the commissioners- to offer their candid and honest assessments of the process.

The commissioners' responses illustrate an increasing reliance on formal and consistent rules of operation and ethical guidelines, evaluation processes that focus on applicants' professional qualifications and experience rather than political factors, and high levels of respect for their peers and the process. Lawyer and non-lawyer members are equally satisfied that their fellow commissioners respect and value their input. Eighty-seven percent say that party affiliation is "not very important" in the review of applications, while eighty-nine percent report that good communication skills are "very important" or "absolutely essential"; eightytwo percent feel that professional reputation is "very important" or "absolutely essential"; and the same percentage reports that "my commission chooses its nominees based on their professional qualifications rather than based on political considerations."

An overwhelming majority of the commissioners (95%) feel that their work is worthwhile and that the process helps insulate the judiciary from partisan political influences. Particularly when compared to past surveys, the results offer evidence to suggest that today's commissions are more diverse, more transparent, more systematic, and less political than they have been in the past. Both the plaintiff and defense bars are well-represented among the lawyer members of commissions, and non-lawyer members represent a striking diversity of professional backgrounds.

Given the common claims of merit selection critics, it is important to note that lawyers and non-lawyers who serve on commissions equally express satisfaction with the working relationships on the commission. In fact, non-lawyer members are the most likely to strongly disagree with the proposition that meetings and deliberations are dominated by a few commissioners. At very high levels, commissioners are also satisfied that they provide an appropriate check on the authority of the governor.

The American judicature Society has a long and distinguished history of supporting merit selection of judges during the past century. Today, the survey results demonstrate that merit selection systems are operating largely as intended. Continued support to strengthen and improve these systems, however, is necessary. Survey responses indicate three potential areas of improvement.

First, a fairly high proportion of commissioners report that they have held public office (31%); 21% have served as an officer for a political party. At the same time, relatively few commissioners (just 15%) report that their commission has adopted formal ethical guidelines to govern the political activity of members. Three-quarters of the commissioners, however, indicated that their commission had adopted some written ethics requirements for those who serve, a significant improvement over past survey findings. Nonetheless, specific rules and guidelines delineating the boundaries of commissioners' political activity can help ensure that merit selection processes remain independent of partisan or special interest influence to every extent possible.

Second, over 93% of survey respondents report that their commission uses formal candidate interviews, and the in-person interview is ranked very highly as a source of information to use in the evaluation of applicants (72.9% ranked the formal interviews as "absolutely essential" in the process). Contrary to AJS recommendations, however, the survey responses demonstrate that interviews typically last less than 30 minutes. Longer interviews permit better opportunities to get to know the people behind the applications, to assess verbal communication skills and temperament, and to allow applicants sufficient time to explain their past experience and future potential as a judge.

Finally, the survey findings suggest that additional work needs to be done to enhance commissions' consideration of diversity on the bench. Fifty-three percent of survey respondents say that their commission makes an effort to submit a diverse list of recommended applicants to the appointing authority. At the same time, just 45% of commissioners agree that racial and gender diversity on the bench are important considerations in their commission's decision to recommend individuals to fill a judicial vacancy. Combined with commissioners' reports that most attorney members are partners or shareholders in a private firm, that commissions recruit primarily using general bar association publications and are less likely to reach out to minority bar organizations, and that recommendations from other commissioners are considered an important source of information in the evaluative process, the survey findings indicate that wellestablished lawyers may have an advantage in the process. Thus, there is reason to think that under-represented groups, including women and people of color, may remain underrepresented absent more intentional efforts to achieve greater diversity on the bench.

Systems of judicial selection inevitably provoke political debates, particularly among those with a stake in case outcomes. Unlike the legislative and executive branches, however, the courts are responsible for interpreting law fairly, a task that is inconsistent with traditional notions of "politics." The goal of ensuring fair decisions, free of political motivation, was the impetus for the creation of merit selection. Today, research demonstrates that these systems function effectively to guarantee fair and impartial courts for the future.

Editorials are prepared by a committee of the American Judicature Society appointed by the president.

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