Help wanted: is there a better way to select judges?

• Author: Bierman, Luke
• Position: Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges

Fights over the courts, and how to select our judges, have been with us since our nation's birth. (1) The Declaration of Independence charged King George with making colonial judges dependent on him alone. (2) There were great debates in the Constitutional Convention and during the ratification process about how to select judges. (3) The Jacksonian Period saw a marked trend toward electing judges, (4) with the subsequent Progressive Era beginning a movement back toward appointment. (5) More recently, concerns about judicial elections, which range from judges raising increasingly large amounts of campaign money to the ethical problems associated with conducting campaigns, have prompted a variety of organizations including the League of Women Voters, the American Bar Association, and state-based reform advocacy groups to reconsider how best to improve judicial selection. (6) As the debate over the role of America's courts becomes increasingly shrill and partisan, (7) the need for creative approaches to placing judges on the bench increases.

1. INTRODUCTION

   The morning of April 30, 2006, dawned unlike many in upstate New York. For one thing, it was brilliantly sunny with the promise of turning comfortably warm, a rare occurrence during the upstate spring. For another, it was my birthday, the annual reminder of not getting any younger. Finally, the classified job postings in the Albany Times-Union included an advertisement for a Justice of the New York Supreme Court, Third Judicial District. Of these three things, the latter was the most extraordinary in my estimation. Judges are not usually recruited in the want ads, along with pipefitters and mental health workers, drivers and chefs. Was New York, facing a crisis in its judicial selection system, up to something creative, interesting, and new in judicial selection?

   The judicial want ad attracted my attention for several reasons. First, I was considering the job market in upstate New York, a region I have come to love and call home. Of course, upstate suffers many challenges including harsh weather, a stagnant economy, and diminishing numbers of young adults, none of which seem to offset its beauty, comfortable pace of life, affordable housing, and accessibility to the population centers and attractions of the Canadian and American Northeast. There are not many opportunities in upstate New York that compare to the senior-level law and policy research, teaching, and advocacy that I have been doing for the last decade. Second, I had spent a fair amount of time working with judges and the courts in upstate New York, clerking for two Appellate Division justices in the Third Department, where I also served as the court's Chief Attorney. Having also practiced in an upstate law firm and taught about law and policy, I know a little something about New York law, including not just the details and intricacies but also the big picture. I also know enough about the politics of New York to know the realities of how people generally become judges, something that a recent lawsuit brought to the public eye in a dramatic way--the legal challenge to New York's convention system of choosing candidates had been successful. (8) Third, I had spent the past dozen or so years working on so-called judicial selection reform, helping craft an effort to reinvigorate merit selection of judges by looking at the weaknesses of electing judges and proposing some creative ways to select judges.

   With these things in mind, I considered the want ad. I knew that the ad was for an interim appointment authorized by the state constitution and made necessary because Justice Thomas Spargo had been removed from the bench by a ruling of the State Commission on Judicial Nomination. (9) Anyone appointed would serve only until an election was held to fill the full fourteen-year term of a Justice of the Supreme Court, an appointment lasting most likely only a matter of months. (10) I knew that if practice followed custom, Governor Pataki would appoint a loyal Republican lawyer who would run for election with cross endorsements from the major political parties after some agreements among party leaders about who would become Justices of the Supreme Court from within the Third District. (11) Of course, Pataki's lame duck status could well affect the prevailing patterns of power in judicial selection. I was not naive about these standard operating procedures, having lived through nominations and renominations of lawyers and judges I counted as colleagues and friends, having studied New York judicial selection as part of my doctoral dissertation, and having commented, lectured, and testified about this selection process for years.

   Yet, I wondered, what if? What if this job ad offered a new way to recruit judges and Governor Pataki, seeking to add to a legacy as he mulls over a presidential run, was really employing a creative approach to attracting new and interesting judges to the bench? Perhaps Governor Pataki was thinking of innovative ways to diminish the partisan bickering over judges that had become commonplace in Washington and increasingly apparent in the states so as to present himself to the national electorate as someone who is willing to forge new ground for the public good. Perhaps Governor Pataki had come to realize that judges, the human representation of justice and the rule of law in a republican form of government that sets America apart from much of the world, are different from those selected to serve in the political branches and should be treated differently than legislators and other political appointees. (12) Perhaps he had seen the light and come to understand that the judiciary should not be a Republican or Democratic issue, a liberal or conservative issue, but an American issue. Maybe, just maybe, something different was going on here.

   This possibility, that an ambitious political leader might seek distinction by rising above the increasingly harsh and partisan bickering over the role of judges in America and how we should select them, is appealing. It is well known that judicial selection attracts inordinate attention from public law scholars and others interested in the judiciary. (13) This attention has only increased over the past few years as more money flows into judicial campaigns and various politically ambitious constituencies seem to recognize that public policy can be affected by state supreme court decision-making (14) During this time, those interested in changing judicial selection processes worked hard to develop new approaches, such as public financing of judicial campaigns, improved screening processes for merit selection, and safeguards for judicial elections. (15) Thus, there is no shortage of possible approaches to change judicial selection. The judicial reform arena lacks political leadership, as there have been a number of defeats for those advocating change, especially regarding merit selection. (16) After all, disrupting existing patterns of political power and patronage offers little political payback for an ambitious political leader. (17) But such a leader might receive some positive attention for tackling this thorny issue in new and creative ways.

   So, on this April 30, with the sun bright and the date reminding me of the passage of time, I indulged myself and did what many self-respecting, constitutionally eligible judicial aspirants, facing the realpolitik of the situation, might not have done: I resolved to answer the ad in the paper with an application to be a Justice of the Supreme Court, Third Judicial District, just like any other job. And believe me, having been rejected for lots of jobs over the years, I knew a thing or two about applying for jobs, judicial or otherwise.

2. JUDGES ARE DIFFERENT, So WHY DO WE TREAT THEM THE SAME?

   The American republic, an experiment in self governance, was built upon several principles including democratic representation, checks and balances, and separation of powers. This latter principle, referred to as an "invaluable precept in the science of politics," (18) posits that there are three separate but equal branches of government that exercise power according to the processes and procedures laid out in the Constitution. (19) While the first part of this dogma is explicitly provided for in the Constitution--the three branches are established and provided areas of authority in the first three Articles--the precise nature of how power is exercised is not explicitly stated in our charter (20) and remains to this day a work in progress. (21) It is, nonetheless, beyond debate that separation of powers exists as a powerful force in the structure of American government. We may debate the precise contours of that separation but it undoubtedly exists. Indeed, the Framers characterized the nature of our federal government as republican in nature...