Enhancing diversity in an appointive system of selecting judges.

• Author: Romero, Leo M.
• Position: New Mexico - Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges

1. INTRODUCTION

   Any system for selecting judges must be legitimate, and it will not be perceived as legitimate if it excludes certain members of the bar or if it makes it difficult for different groups to get its members on the bench. For an appointive system (1) to be perceived as legitimate, it must ensure that diversity is considered in nominating candidates and in appointing judges. This Article will examine the different measures that states, with a particular focus on New Mexico, have adopted in order to enhance diversity in their appointive systems and then propose ways to structure an appointive system that gives due consideration to concerns about diversity. This Article concludes that an appointive system should be designed to require consideration of diversity in the composition of nominating commissions and in the evaluation of applicants. In addition, an appointive system should include provisions that make the process transparent, so that it can be monitored to see if the process is fair in providing lawyers from all minorities and genders a fair chance of becoming a judge. Finally, the system must provide for accountability by providing means to ensure compliance with the diversity and transparency requirements.

2. DESIGNING AN APPOINTIVE SYSTEM TO ENHANCE DIVERSITY

   Appointive systems for selecting judges necessarily must be attentive to the issue of diversity if they are to be perceived as fair. The screening of judicial applicants by a nominating committee involves selection by a small group with little accountability, unlike an electoral system for selecting judges where judicial candidates subject themselves to the voters in a public election. Although the ultimate appointment is made by the governor, an official accountable to the public, the governor's appointment power is limited to the list of applicants nominated by the commission. Nominating commissions, therefore, have considerable control over the selection of judges by reason of their power to decide which candidates can be considered for appointment by the governor. Thus, the possibility exists for an appointive system to be perceived as controlled by a group of insiders without accountability and to be perceived as a system that works to the disadvantage of outsiders like women and minority lawyers, lawyers in small firms or sole practice, and lawyers who practice outside of the urban centers of the state. Appointive systems must be designed to counter these possible perceptions and to ensure that the process is inclusive, open, and fair. The legitimacy and credibility of the appointive system therefore depend on the public's faith in the fairness of the system and in the acceptance of the system by all communities, including minority communities.

   To achieve diversity in an appointive system, the people involved in implementing the process must be directed to consider diversity at the different stages of the process. Diversity should be considered in appointing nominating commissions, in evaluating and recommending judicial applicants, and in appointing judges. Although consideration of diversity does not necessarily produce a diverse judiciary, and indeed does not require that women and minority lawyers be appointed to the bench, the consideration of diversity focuses attention on the need to have a judiciary that will serve diverse communities and should result in a selection system that is fair and inclusive.

   Consideration of diversity in the appointive system process can be required in several ways. First, the law establishing the appointive system can require the consideration of diversity in commission composition and in the evaluation of applicants. Second, nominating commissions can create their own rules that require consideration of diversity. Third, nominating commissions or the chair can adopt informal practices that promote diversity.

3. DIVERSITY CONSIDERATIONS REQUIRED BY LAW

   Ensuring diversity is most likely to occur when the law establishing the appointive system, whether in a constitution or statute, includes language that mandates consideration of diversity. Mandates can also be accomplished by executive order. Diversity language in constitutional provisions, legislation, or executive orders has the effect of valuing diversity and giving it the legal stamp of approval. Legally requiring diversity considerations should influence the behavior of those charged with implementing an appointive system. Diversity provisions can apply to several stages in the appointive system and can require the consideration of diversity in (1) the composition of the nominating commissions, (2) the evaluation of candidates by the commissions, and (3) the appointment of nominees by the governor.

   1. Diversity in Nominating Commissions

      A review of the appointive systems in effect in 2006 shows that twelve states include diversity provisions with regard to the composition of commissions. Most of these provisions appear in statutes, (2) but some appear in constitutions (3) and three appear in executive orders. (4) The language requiring consideration of diversity varies, with some states specifically requiring consideration of race and gender, (5) and others requiring consideration more generally of the broad diversity of the citizenry of the state. (6) One state requires gender balance but does not require any other types of diversity, (7) and two states do not define diversity. (8) A number of states also require that nominating commissions reflect geographic diversity, (9) law practice diversity, (10) and political balance. (11)

      The New Mexico judicial selection system (12) provides an example of a constitutional requirement of diversity in the composition of nominating commissions. In the provision setting forth how the commission members will be selected, the New Mexico Constitution states that the president of the state bar, in consultation with the judges on the commission, shall appoint additional members of the bar to achieve political balance on the commission and to insure that "the diverse interests of the state bar are represented." (13) The constitution does not impose a diversity requirement on any of the other officials who appoint members of the commission (the governor, the speaker of the house of representatives, and the president pro tempore of the senate). The constitution also provides that the dean of the University of New Mexico School of Law "shall be the final arbiter of whether such diverse interests are represented." (14) The phrase "diverse interests" is not defined in the constitution and the dean, as the arbiter of diversity, is left to define the term. According to deans who have served as chair of the nominating commission, diversity includes geography, practice type (for example, civil, criminal, plaintiff, or defense), gender, race, and ethnicity. (15) To determine whether diverse interests of the bar are represented on nominating commissions, the dean does two things. First, the dean consults with the president of the state bar to ensure that women and minority lawyers are represented on the commissions. Second, whenever a vacancy occurs, the dean notifies the governor, speaker of the house of representatives, and president pro tempore of the senate of the need to appoint commissioners (16) and specifically reminds them to consider appointing women and minorities.

      A provision that goes beyond mandating consideration of diversity by requiring a certain percentage or number of women or minority commissioners may result in equal protection challenges. Indeed, Florida's attempt to reserve one-third of commission seats for women or members of a racial or ethnic minority group faced such a challenge. A federal court invalidated the Florida law on grounds that the 1991 statute violated the equal protection clause of the Fourteenth Amendment. (17) Florida law now requires that the governor, who makes the appointments to the nominating commissions, ensure that to the extent possible, the membership of each commission reflects the "racial, ethnic, and gender diversity, as well as the geographic distribution of the population" within the relevant jurisdiction. (18)

   2. Consideration of Diversity in Evaluations of Judicial Applicants

      Unlike mandates to consider diversity in nominating commissions, states for the most part do not require commissions to consider diversity when evaluating candidates and deciding whom to recommend to the governor for appointment. States generally require only that candidates be evaluated on the basis of criteria that do not include race, ethnicity, or gender. (19) Only three states refer to gender or minority status of the candidates when addressing the evaluation of candidates. (20) By statute, Minnesota...