29 June 2009

U.S. States Seek Fair Method for Selection of Judges

While judges are appointed to federal courts, states use varying methods for selecting judicial officials.

By Stefano Rivolta
Staff Writer

Washington — In any trial, the judge plays one of the most important roles. In the United States, how these judges are selected — and the role citizens play in selecting them — varies.

At the federal level, judges are nominated by the president and confirmed by the Senate, as the U.S. Constitution requires. But within states, the process differs, Adam Skaggs, democracy counsel for the Brennan Center for Judicial Studies at New York University, told America.gov.

VARYING STATE SYSTEMS

Many states have three levels of courts: the supreme, appellate or circuit, and trial court. Some states combine the trial courts and the appellate courts into one system.

The first level most cases go through is the trial court, where evidence is reviewed and facts are determined. At the appellate or circuit court, judges review the decisions made in the trial court. Evidence, testimony and other information presented at trial are assessed when reviewing the initial ruling.

“The highest court of the state,” Skaggs said, “is the state supreme court.” The supreme court exclusively deal with legal appeals from the intermediate courts and does not hold trials. The high court may vacate — or discard — the decision, or it may remand — send back down — a decision for reconsideration by the lower court.

How judges are selected for these state courts varies. Some are appointed by governors and confirmed by the state legislature, mimicking the federal judicial-appointment process. Others are elected directly by the people. In some states, a mix between appointments and elections is used. Some use a retention process in which a governor appoints a judge for a term and at the end of the term, the citizens vote whether to keep the judge in office.

According to the Brennan Center, 39 out of 50 states hold some sort of judicial election. Thirty-eight states have elections only for the state supreme court. Seven of those states hold partisan elections (where judicial candidates run as members of a political party), 14 have nonpartisan elections and 17 have a retention process following an appointment.

Each process has advantages. Keeping the selection within the government’s power — and away from the ballot box — lets informed individuals come to a thoughtful decision. On the other hand, when citizens vote for their judges, their democratic duties are more freely exercised and governmental prejudice can be avoided, which is one reason why public judicial elections began in the late 1800s.

In some judicial races, candidates cannot disclose their party affiliation, while in others they can choose to run as a member of a political party. Running in a nonpartisan election can be difficult for judicial candidates, who must inform the public what they stand for “without saying too much in terms of being identified as [in] a particular party,” Skaggs said. “Both systems of judicial selection are capable of having beneficial outcomes; however; they do not always function particularly well.”

The relationship between judges and those who contribute money to their campaigns is an issue that many — including the U.S. Supreme Court — have closely examined for signs of potential bias.

In the case Caperton v. Massey, the Supreme Court on June 8 ruled that elected judges have a responsibility to remove themselves from cases involving major campaign donors. In this case, the judge reviewing the appeal of a ruling against a large coal company previously had accepted $3 million in campaign donations from the company’s chief executive.

Citizens are capable of getting accurate information on judicial candidates, Skaggs said, yet biased political information about a candidate spreads during judicial contests just like in other elections. Advertising that uses slanders, character attacks and name calling can skew the voter’s viewpoint, Skaggs said.

Some states are using a merit commission to make the judicial selections. “If the members of the commission are selected appropriately and the selection process works as it should,” Skaggs said, “a merit-commission-based selection process can produce the best quality of judicial candidates.”

A merit commission usually consists of a mix of public members, lawyers and nonlawyers, appointed by the state government. Merit commission members should be highly qualified to interpret policies and determine complex issues by virtue of education, experience and training. This should result in a more informed selection based on merit rather than political affiliation, and could limit bias, Skaggs said.