Enriching judicial independence: seeking to improve the retention vote phase of an appointive selection system.

• Author: Irwin, John F.
• Position: Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges

[I]ndependence of the judges is ... requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. (1)

The reformer is careless of numbers, disregards popularity, and deals only with ideas, conscience, and common sense. He feels, with Copernicus, that as God waited long for an interpreter, so he can wait for his followers. (2)

1. INTRODUCTION

   Judicial independence and reform seem inextricably intertwined. Even as Alexander Hamilton eloquently argued for the importance of an independent judiciary, the history of our states reveals the difficulty in evolving the best possible system of judicial selection to achieve optimum independence and quality. The inherent resistance to change and the premium to be placed on patience in would-be reformers further complicate the discussion. As the recent symposium at Fordham Law School revealed, a panoply of ideas exists about how to most effectively continue moving toward the ideal system of selecting state court judges. Toward that end, this Essay seeks to address a relatively narrow aspect of the issue: the struggle to improve the effectiveness of judicial retention elections in an appointive selection system. This Essay will start by reviewing the framework of the existing system of selection and retention in Nebraska. It will consider why an appointive system might need, or want, to maintain elective retention. Next, this Essay will consider some of the potential problems related to the effectiveness of existing appointive systems that employ retention elections. This Essay will conclude with some proposals for improving the effectiveness of the retention vote in Nebraska and similarly situated states.

2. A LOOK AT NEBRASKA'S EXISTING SYSTEM OF JUDICIAL SELECTION

   Nebraska's judiciary consists of a supreme court, an intermediate court of appeals, district courts, county courts, juvenile courts, and a workers' compensation court. (3) All judges in Nebraska are appointed by the governor, who chooses from a list of candidates submitted by a judicial nominating commission. (4) Once appointed, judges in Nebraska must stand for periodic non-partisan retention votes. (5) The Nebraska Constitution, the Nebraska Statutes, and the Nebraska Supreme Court Rules set forth the details of Nebraska's system of judicial selection. (6)

   Nebraska's existing system of judicial selection is prescribed by the Nebraska Constitution. (7) At Nebraska's inception, Nebraska Supreme Court justices were selected by popular election to six-year terms. (8) Similarly, in 1875, Nebraska began selecting district court judges by popular election to four-year terms and county court judges by popular election to two-year terms. (9) In 1909, the Nebraska Legislature adopted the Nonpartisan Judiciary Act, which barred judicial candidates from official affiliation with any political party. (10) In 1962, Nebraska approved a constitutional amendment adopting a "merit plan for selection of judges" of the Nebraska Supreme Court and the district courts ("the plan"). (11) Nebraska extended the plan to include county court judges in 1974. (12) In 1990, Nebraska approved a constitutional amendment creating the Nebraska Court of Appeals, whose judges are also selected by the plan. (13) The plan also governs judicial selection for Nebraska's juvenile courts and workers' compensation court. (14)

   The plan dictates that judicial vacancies "shall be filled by the Governor from a list of at least two nominees presented to him by the appropriate judicial nominating commission." (15) Nebraska has separate judicial nominating commissions for various geographic areas within the state, and a separate commission for the Chief Justice of the Supreme Court. (16) Each judicial nominating commission consists of nine members: one Supreme Court justice designated by the governor to serve as a non-voting chairperson; four state bar association members; and four citizens of the relevant judicial district who are not admitted to the practice of law before the Nebraska courts. (17) Additionally, no more than two lawyers and two non-lawyers within each commission may be members of the same political party. (18) Commission members serve staggered four-year terms. (19)

   A public hearing must be held within sixty days after the final determination that a judicial vacancy exists. (20) Any lawyer who meets the requirements to serve as a judge may signify her interest in being appointed to fill the judicial vacancy by filing an appropriate application at least twenty-one days prior to the scheduled public hearing. (21) Any member of the public is "entitled to attend the public hearing to express, either orally or in writing, his or her views concerning candidates for the judicial vacancy." (22) After the public hearing, the judicial nominating commission can hold additional private meetings, receive additional information in writing, and make independent investigation and inquiry as it deems necessary to evaluate the qualifications of the candidates. (23) The judicial nominating commission is even empowered, if it feels it is necessary, to institute a search for additional candidates and to hold further public hearings. (24) The judicial nominating commission forwards to the governor the names of candidates who received at least five votes from the voting members of the nominating commission. (25)

   After the names of qualified candidates are forwarded to the governor, the governor has sixty days to appoint a candidate to fill the judicial vacancy. (26) If the governor fails to make an appointment within sixty days, the Chief Justice or the acting Chief Justice of the Nebraska Supreme Court shall make the appointment. (27)

   Sitting judges who wish to remain on the bench must submit themselves to periodic non-partisan retention votes. "At the next general election following the expiration of three years from the date of appointment ... and every six years thereafter as long as such judge retains office, [every sitting judge in Nebraska] shall have his right to remain in office subject to approval or rejection by the electorate." (28) In the case of the Chief Justice of the Nebraska Supreme Court, the electorate of the entire state votes on the question of retention; in the case of all other judges, the electorate of the district from which the judge was appointed votes on the question of retention. (29) A simple majority of voters indicating that the judge should be retained is all that is required for successful retention.

   The Nebraska State Bar Association's judiciary committee evaluates Nebraska judges. (30) To this end, the committee circulates judicial performance surveys to the state bar and attorneys complete the surveys by answering questions about judges standing for retention with whom the attorneys have had professional contact. (31) The survey asks attorneys to rate judges on a number of criteria, and also includes a question specifically asking the respondent whether the judge should be retained in office. (32) The results of the evaluation are available to the public on the bar association website and by circulation to the state print media. (33) Additionally, the bar association makes available to voters who request it a "Judicial Retention Information Kit," which includes a letter emphasizing the importance of having an independent judiciary, guidelines to be considered in evaluating judges sitting for retention, background information about the judicial performance survey, survey results, and biographical information about those judges sitting for retention. (34)

3. KEEPING ELECTIVE RETENTION IN AN APPOINTIVE SELECTION SYSTEM

   Many reformers argue for improving both independence and effectiveness in the judiciary by replacing elective retention with an entirely commission-based retention system. (35) Although the optimal goal might well be to someday move toward commission-based retention, there are good reasons to first consider keeping elective retention while striving to improve the effectiveness of the retention vote. There are both historical and practical reasons for premising the current discussion on maintaining elective retention. (36) Evidence also suggests that the purposes and goals of judicial retention systems can effectively be achieved with an improved elective retention system.

   As an initial matter, it is important to recognize the historical reason for many appointive selection systems including elective retention. Initial reformers of judicial selection sought to remove the actual and perceived possibility of corruption associated with political elections. (37) To that end, reformers proposed various appointive selection systems, such as the nominating commission system put in place in Nebraska. (38) Those reformers, however, recognized that the public would not be eager to entirely forfeit its say in selecting judges. (39) Additionally, initial reformers recognized that elections provide a means of public accountability for the effectiveness of judicial performance. (40) As a result, the compromise for attempting to reduce corruption while allowing the public a more direct voice than representation by a commission was to remove the elections on the "front end" of the process at selection, but maintain elections on the "back end" of the process at retention. (41)

   Practically speaking, the same problems that faced initial reformers continue to be problems today. As demonstrated by recent public controversy and media attention surrounding, inter alia, United States Supreme Court nominees John...