Perspectives on Judicial Selection - Norman L. Greene

• Jurisdiction: United States,Federal
• Publication year: 2005
• Citation: Vol. 56 No. 3

Perspectives on Judicial Selectionby Norman L. Greene^*

The Symposium entitled "Judicial Professionalism in a New Era of Judicial Selection," held on October 22, 2004, at the Walter F. George School of Law of Mercer University in Macon, Georgia, generated important questions on judicial selection reform: how are judges selected, how should they be selected, what makes a good judge, how should we deal with a bad judge, what changes need to be made in judicial selection, where are they being made, how can they be made in other states, and how long will it take to accomplish them.' Shall we have a justice system where judgeships are a reward for the politically faithful;' where the right to dispense justice is acquired by unjustly heaping abuse on one's adversary through attack advertisements? where selecting the best person for the job depends on skill in collecting campaign cash; where many voters cast ballots blind, ignorant of the candidate except for his name; and where unsuspecting voters choose a "Roy Moore when they need a Harry Blackmun, who was not and never would have been elected to any public office."⁴ These are all essential questions to be resolved as Georgia and other states with elected judiciaries decide how to reform their judicial selection systems.

This Article will highlight certain aspects of the dissatisfaction with judicial selection expressed at the Symposium and suggest some remedies. It will also focus on common objections to and proposed solutions for appointive selection plans.⁵

I. The Nature of the problem

Judges should decide cases impartially ⁶ and possess the requisite professional abilities to enable them to do so.⁷ But circumstances today make it appear that judges sometimes do not conduct themselves impartially and commit themselves, in advance, to positions on legal issues.' Some problems include judicial campaigns waged at excessive costs with dangerously free campaign speeches and statements of opinion that have expanded under the authority of Republican Party of Minnesota u. White⁸ and Weaver u. Bonner,¹⁰ In some campaigns, candidates claim the right to characterize how they might decide particular cases that come before them through misleading advertisements, signals, cues, and code words, even in voter guides." "When an advertisement attacks a judge on a legal issue, when an advertisement suggests a certain judge will produce a certain decision, the message to the public is that judges are not expected to be impartial."¹²

Some claim judges are, or appear to be, pressured to decide cases in popular ways or in ways favorable to their campaign contributors-as opposed to on the basis of the law-to avoid retribution on election day by the voters. This observation has been made for both civil cases, where plaintiffs and defendants have sought to "retain and elect judges perceived as favorably disposed toward them,"¹³ and criminal cases.¹⁴ Although some states are enacting or suggesting election reforms—public financing of judicial elections (North Carolina);" screening committees for judicial candidates (New York);¹⁶ voters guides to inform the public who the candidates are (North Carolina);¹⁷ and volunteer committees to address false advertising and other campaign conduct (Georgia)," speakers at the Symposium repeatedly warned against over-optimism. More than once we heard that judicial selection reform is a field of bunt singles where progress is slow, rather than a field of home runs.

This refrain may have originated in certain times and places, but it should not deter reformers from seeking needed reforms. Significant reforms may result from a confluence of circumstances, including a perceived need for reform and a will to achieve it through planning and organization. ¹⁹ in New York the acceptance of bribes by sitting trial court judges recently spurred attention to reform, leading to the incremental step of appointing a commission to reform elections.²⁰ In the 1970s elections for New York's highest court led to the adoption of a constitutional amendment changing the selection method for the New York Court of Appeals from elective to appointive.²¹ The unsatisfactory nature of judicial elections has led to reform efforts not only in New York, but also in other states, including West Virginia" and Ohio.²³ Momentum toward political change has been driven by the efforts of the organized bar, including the American Bar Association, the Association of the Bar of the City of New York, and various state bars; the Committee for Economic Development;²⁴ and other organizations.²⁵

Improving judicial selection is not just about getting better judges²⁶ but also about getting a better process.²⁷ Professor Patrick Longan's article written for the Symposium, Judicial Professionalism in a New Era of Judicial Selection, looks at the quality issue, focusing on despotic behavior by judges. The Article states:

trial judges should be subject to some form of regular re-selection. Their terms, or at least their first term, should not be so long that they have too much time to rule as petty little despots, if that is what they become . . . . If the appointing authority will look to that pool [of trial judges] when a seat comes open, then we can protect appellate judges from hostile voters with greater confidence that we are not thereby harboring a tyrant . . . ,²⁸ For the few who will let the power of judicial office go to their heads, some mechanism must be in place to persuade them to behave out of fear of sanction or, as a last resort, to punish them for abuse of their office . . . .²⁹ Judges who soon become afflicted with "robe-itis" [may need to be removed3 . . . . The fear of being booted out might also inoculate some judges against the disease of arrogance . . . .³⁰

Quantifying the extent of judicial misconduct is difficult. Some misconduct may not even be reported, and therefore, will not generate data, perhaps for fear of alienating a judge before whom one may appear. Furthermore, as Professor Longan notes, even if it is reported, a good deal of troubling conduct may not reach the disciplinary level.³¹ But just as it is possible to overestimate the misconduct, it is also possible to underestimate it. For example, Professor Longan's article states that "[m]ost people who become judges will conduct themselves with dignity and civility because they are the type of people who know what is appropriate."³² There is no statistical evidence of that, of course, and none is offered. Indeed, it would be a peculiar study to seek to determine how many judges do not misbehave or how many demonstrate good conduct. These and similar comments made elsewhere may reflect merely anecdotal evidence or even a gesture of respect to the judicial branch.

Some have wondered how the ill-tempered or otherwise ill-suited judge can be controlled and whether that is best done in an elective or appointive system.³³ To begin with, control of such a judge need not wait until the time for reselection.³⁴ The misconduct could either be reported to the applicable judicial qualifications or conduct committee, bar association committee, administrative judge, or Office of Court Administration. However designated, the agency or entity handling such complaints should develop rules for resolving them. In many cases a call to a judge by the chief administrative judge informing such judge of the complaint and seeking an explanation may be sufficient to resolve the problem. A disciplinary system depends first on those who observe and report judicial misconduct and then action by the authorities charged with handling the problem. Indeed, there could be a formalized procedure for evaluating judges before the time for reselection; the Association of the Bar of the City of New York has recommended a pilot project of mid-term evaluations.³⁵

Without detailed public information on performance, the public is in danger of electing and retaining abusive judges in an elective system or appointive system with retention elections.³⁶ If reselection is made by a judicial nominating commission and not by election, such information must be submitted to that commission as well. The North Carolina voter guide, submitted at the Symposium, says nothing about the candidate's temperament, and for all one is told, one could be electing the next Texas federal judge, John McBryde.³⁷ Nor does a candidate's poor conduct on the bench generally become the subject of campaign advertisements so as to otherwise reach the voting public. "When it comes to . . .judicial candidates," a New York state judge noted with respect to New York judicial elections, "weget name[J rank and [,] serial number, and maybe a photo of him with his dog."³⁸

If there are to be elections of any sort for retention or otherwise, the public should, to the extent reasonable and consistent with the need for confidentiality, receive the type of data evaluated by bar association committees who make the decision to recommend a judicial candidate as qualified or unqualified, presumably in a summarized form.³⁹ If a model is required, the information for the public could be of the nature made public by Colorado about its own judicial candidates standing for retention. Professor Longan describes Colorado's judicial performance evaluations, which provide detailed information on incumbent judicial candidates seeking retention based on carefully gathered data from persons in a position to observe them.⁴⁰ The decision to vote for a candidate is far more critical than the decision of a bar association on a judge's qualifications; the voters can elect or defeat a candidate. A bar association's ratings may affect an election, but their effect is less direct and sometimes nonexistent. There are sad examples of political leaders supporting candidates with unqualified ratings and voters electing It is easier for voters or political leaders to dismiss a bar association rating of a candidate when no...