The judicial independence through fair appointments act.

• Author: Greene, Norman L.
• Position: Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges

AS OF FEBRUARY 21, 2007

Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system.... If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges. (1)

INTRODUCTION: THE PURPOSE OF THE MODEL

The United States Supreme Court's 2002 decision in Republican Party of Minnesota v. White (2) and lower court decisions following it in various states have intensified the debate over alternatives to election, such as appointment of judges. According to these decisions, judicial candidates may state their own personal views on political and legal issues and to some extent personally solicit campaign funds. The cases have raised concerns that judges are committing or giving the appearance of committing themselves to outcomes and compromising their neutrality.

Virtually every state appoints some judges, whether the appointments are of interim judges who are selected to fill unexpired terms of departing judges, initial appointments of all judges, or something in between. A commission-based model of appointment, in which a commission recommends a limited number of candidates for the executive or appointing authority to select, has been the classic appointment model for states for decades. Yet there are many possible variables even for commission-based systems.

The Judicial Independence Through Fair Appointments Act is a model act which provides a merit-based system for selecting a qualified, independent, accountable, and diverse judiciary based on close study of existing systems. (3) It provides the entire structure of a judicial selection by appointment system, building on concepts in established commission-based appointment plans and incorporating important refinements. Although the act is designed as a statute, many states may need or wish to convert some or all of it into a constitutional provision in order to increase the permanence of the scheme or because a constitutional amendment is otherwise required. Selected portions may also be enacted separately as rules and regulations governing the process.

THE SUMMARY OF THE MODEL AND SECTION ANALYSIS

The Judicial Nominating Commission and Commissioners

The principal element of the model act is a judicial nominating commission, which is subject to the oversight of a judicial nominating review commission. The mandate of the judicial nominating commission is, among other things, to seek and receive applications from candidates; review their credentials; interview them as appropriate; investigate them through the due diligence process; and propose nominees for the executive to select. The act provides alternatives in which the commission proposes three or five individuals, depending on the preferences of the enacting state. (4)

Judicial nominating commissions are created for each district for the trial courts, for each department or circuit for intermediate appellate courts, and for the highest court, a statewide commission is created. (5) A department or circuit is presumed to be the area served by a single intermediate appellate court, which would include a number of trial courts. The model act takes the position that the selection process should be decentralized through a number of commissions, with local chief executives selecting judges for local courts and with the governor selecting judges in other cases. Decentralization helps ensure that those involved in the judicial selection process are familiar with the area which the court serves. Some states, however, may have a more limited pool of available commissioners or significantly fewer judicial positions to fill than other states and therefore may wish fewer commissions. Alternatives suggested include one judicial nominating commission for all courts of the state or one commission for a department or circuit to nominate judges for both the mid-level appellate court and trial courts within the department or circuit. (6)

Commissions consist of thirteen members, including seven lawyers and six non-lawyers. (7) This close division recognizes not only the lawyers' special expertise in matters involving the judiciary, but also the non-lawyers' stake in the system as consumers of judicial services. Non-lawyers may also be keen observers of the qualities that may make someone a good judge. Using fewer commissioners may be acceptable without affecting the structure of the model, although using fewer than nine commissioners is not advisable. The terms of judicial nominating commissioners are four years. (8) The model act specifies the method of appointing lawyer and non-lawyer members of the commission. (9) The model seeks to create a nonpartisan structure by requiring a balance among political parties, with no more than a simple majority of commissioners belonging to the same party. (10) Commissioners unaligned with any party would not affect the balance. Since judicial selection requires certain knowledge and abilities, judicial nominating commissioners are required to receive training in the performance of their duties and meet certain experience requirements. (11) Among other things, commissioners are expected to attend commission meetings, with automatic termination for poor attendance. (12) Both the commissioners and applicants for judicial office are governed by rules of conduct.

The act recognizes the importance of limiting the appointing authority's actual or perceived control over the judicial nominating commission. Common criticisms are that some commissioners do not exercise independent judgment, but rather respond to the directions of politicians outside the commission (principally the executive) concerning who they should select as nominees. Potential applicants who believe that only an executive's favorites have a chance at appointment may choose not to apply. This defeats the goal of obtaining the best judicial candidates, harms the image of the selection system, and lessens public support for the appointive process.

The act therefore prohibits the appointing authority from suggesting names to the commission and thus controlling or appearing to control the commission. (13) The penalty for violating the provision regarding communications between the appointing authority and the commission is the inability of the appointing authority to select the judge from the names proposed by the commission, with the power going to the chief judge of the court for which the vacancy exists. (14) Similarly, those who appoint commissioners are precluded from making such suggestions to those they appoint. (15) The model also limits the appointing authority's selection of members of the judicial nominating commission to one lawyer and one non-lawyer on the grounds that the plan should not give the appearance, whether based on perception or fact, of executive control. (16) The executive's principal, if not only function, should be to select from a list of approved nominees. Commissioners are responsible for identifying the most qualified candidates regardless of the likelihood of their appointment by the appointing authority; qualifications, and not political acceptability, are determinative. (17)

The Selection Process

The model establishes procedures for obtaining an invitation for interviews, conducting interviews, a due diligence stage in which the candidate is investigated, secret ballots and absentee ballots, and voting for and transmitting selected candidates to the appointing authority for further study and action. (18)

A non-exclusive list of qualifications guides commissioners in identifying and nominating judicial candidates. (19) The list shares some similarities with those used in some states and models, although its terminology may vary. A refinement is a provision that commissioners may not give undue consideration to the law school attended by the applicant. (20) This responds to concerns that some commissions may be elitist by preferring applicants from certain law schools. Quality, however, is not measured exclusively by easy devices, such as the candidate's law school, class rank, or judicial clerkships as a young lawyer. These early achievements fail to measure the whole person, and a judicial candidate should be considered on his or her full record. In listing various qualifying criteria, the model act also recognizes the significance of the applicant having had prior judicial education. (21)

Diversity in the nominating process is responsive to core American values and essential to building public confidence in the appointive system. The model provides that to the extent practicable, commissioners must reflect the diversity of the jurisdiction. (22) The commission is also to exercise "due regard" for the demographic characteristics of the district for which a judge is to be nominated and, more specifically, diversity of nominees in the broadest sense. (23) Nor are nominees to be predominantly from one area of practice, a problem in various jurisdictions, typically where former public servants of one type or another have an advantage or disadvantage. (24) Although no one segment of the profession should be artificially excluded from the judiciary, no one aspect of the profession should serve disproportionately. The judiciary should reflect the broad range of experience within the legal community.

The model act does not take a position on the confidentiality of the proceedings, except in limited instances. For example, by implication, because public hearings would be part of the reappointment process, some of the process will be open. (25) In addition, the judicial nominating commission is required to report publicly on its work, including the demographic characteristics of the applicants. (26) The model's code of conduct also includes confidentiality provisions. (27) Where possible...