Rethinking judicial nominating commissions: independence, accountability, and public support.

• Author: Colquitt, Joseph A.
• Position: Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges

Of all the difficult choices confronting societies when they go about designing their legal systems, among the most controversial are those pertaining to judicial selection and retention. (1)

1. INTRODUCTION

   There is no one best way to select judges. (2) Any judicial selection system has both strengths and weaknesses. In order to create the best judicial selection process possible, society must be willing to design and create selection paradigms that result in the best-available individuals taking the bench even though, in the process, some well-entrenched aspects of existing schemes must fall by the wayside.

   Judges usually take the bench via election or appointment. (3) Regardless of the judicial selection method employed in a given jurisdiction, most judges, even those in states utilizing judicial elections, initially take the bench through appointment. (4) Therefore, it be comes imperative to examine appointive procedures when evaluating the effectiveness of a judicial selection process.

   This Article focuses on one of the pillars of the appointive process, the judicial nominating commission, although it warrants noting both that some jurisdictions that use judicial elections also use nominating commissions to fill vacancies, and that not all appointive systems utilize nominating commissions. (5) Although this Article eschews any analysis or discussion per se of the election alternative, (6) it suggests that all jurisdictions should have judicial nominating commissions. Naturally, a judicial nominating commission exists to screen and select nominees for judgeships. In discussing nominating commissions, the self-assigned purpose of this Article is to envision and describe a system that more likely will result in selecting the right person for the bench. (7)

   The task in a good judicial selection system is not simply to fill vacancies, but to select the best candidates for judicial positions. Short of this goal, perhaps at the very least, a well-devised system can eliminate "seriously underqualified" candidates. (8) To accomplish this purpose through the use of a nominating commission scheme, we should strive to develop the ideal judicial nominating commission system. (9) That system should possess (at least) three principal features: it should adhere to democratic ideals; it should maintain as much independence as reasonably possible; and it should enjoy public acceptance and support. Additionally, local conditions and requirements must be considered in designing any commission scheme. Obviously, the needs of the various states and locales differ. (10) Selecting the appropriate judicial nominating commission scheme can be challenging, but effective judicial nomination commissions will greatly aid in the effort to obtain the best judges possible.

   Almost needless to say, these features and considerations conflict to some extent. Because of the tension between them, they greatly complicate efforts to design an ideal commission. Despite these difficulties, we should not compromise on the principal features of an ideal scheme any more than necessary to reach the best possible balance. (11) A delicate balancing of democratic ideals and independence will garner public support for a judicial nominating commission without over-compromising any of these core principles.

   This Article consists of five Parts. Part I introduces the topic, briefly explains how I was introduced to the issues being aired, (12) and provides an overview of the three fundamental, principal concerns discussed, namely democratic ideals, independence, and public support. In Part II, the Article explores the process of properly designing a commission system. The first section of Part II identifies the goals for the appointment process and introduces the concept of commission capture. The second section of Part II focuses on the makeup of commissions. It examines potential sources of authority (i.e., constitutional, statutory, or executive order) and the strengths and weaknesses of each. It looks at the structure of the commission, including commissioner selection processes, and it also addresses diversity. In the third subdivision of Part II, the Article addresses the work of commissions, including guidance for commissioners, ethics, and the judicial selection process. In the latter subsection, the Article airs the opposing concerns of secrecy and openness. The fourth subpart of Part II briefly discusses the role of commissions with regard to renomination or retention of judges.

   Part III studies the challenging issue of desirable subjective attributes of judicial candidates and how commissions should address that issue. Part IV focuses on and discusses the need to sell the nominating commission process to the public and the political leadership. The Article's conclusion appears in Part V. We begin where I began: my appointment to the trial bench.

   1. My Introduction to a System (in the Interest of Candor) (13)

      I first became acquainted with a judicial selection process in August, 1971. Benny H. Mize, a very prominent and well-respected circuit judge in Alabama, had died. His death created a mid-term vacancy on the trial bench. Two friends called me, then a young attorney, to see if I could have lunch with them. Over lunch they told me that, as members of the governor's local political organization, they would be advising the governor about who should be appointed to the vacancy and wanted my input. We discussed my knowledge of each of the announced candidates for the seat on the court.

      After our conversation, they asked for a copy of my resume (which I provided) so that they could mention my name to the governor during their meeting the next day, just in case the governor needed to appoint someone to a board or to represent the state for litigation purposes sometime in the future. (14) The next afternoon, after assuring the local news media that I had not received a bench appointment, (15) I received a call from the governor's press secretary who informed me that an Alabama state trooper was on his way to my office with my commission as a state circuit judge. That call was my first communication from, to, or with anyone in the governor's office about the matter.

      Twenty years later, I served as the Chair of the Judicial Appointments Commission (16) that carefully considered candidates to replace me upon my retirement from the active bench. Thus, I have seen judicial selection firsthand from both extremes. The governor appointed me through a very political process. When I left office, I served as Chair of our judicial nominating commission, one of only seven in the state. (17) Hence, my compilation of experiences have placed me in a unique position to critique straight appointment versus nominating commission schemes. Which do I think is the better system? Had a judicial selection commission existed locally in 1971, I likely would not have served as a circuit judge for the next twenty years. Nevertheless, I think a judicial appointments commission is an essential component of any properly designed judicial selection system, whether that system involves an elective or appointive scheme.

   2. Judicial Appointments

      As noted previously, most judges originally take the bench by appointment. (18) Obviously, the quickest and most efficient way to fill a judicial vacancy is by appointment. Appointments are necessary to maintain efficient operation of the court in the event of a vacancy on the bench. The death or resignation of a judge from the active bench seriously disrupts the work of the court, and the speedy selection of a replacement is important to the litigants and the public. Most, perhaps virtually all, of these interim vacancies are filled by gubernatorial appointment. (19) In a few states, the legislature makes the appointment. (20) Alternatively, a state could choose a special election, (21) but that method entails uncertainty, delay, and costs. Appointment is the better method of filling vacancies.

      Absent a commission, though, appointing authorities may appoint individuals more for their politics than for their ability. Governors tend to appoint individuals who have been active in state or local politics, particularly focusing on those who have helped the governor or the governor's party or allies. (22) Neither the gubernatorial nor the legislative appointment process is faultless. Both involve the political process and can involve significant delay. Moreover, neither gubernatorial nor legislative appointment schemes necessarily accomplish our objectives, namely to create an appointment process that adheres to democratic ideals, is independent of the political process (as much as possible), and enjoys widespread public acceptance and support. Inserting a properly crafted judicial nominating commission into the appointment process, though, can greatly enhance the likelihood of meeting these objectives. These three objectives, which are vital to any properly constructed judicial nominating commission, are discussed in the following subsections: i) Democratic Ideals, ii) Independence, and iii) Public Support.

      i. Democratic Ideals

      A properly functioning commission system must adhere to certain democratic ideals. Citizens must have at least some say in their government. (23) Although the judiciary is not considered a political branch, the courts are a part of our democratic form of government. In fact, in this country, the courts are an essential part of the government. We must also recognize, frankly, that politics are part of our governmental scheme. Our courts impact public policy and help shape the norms of society. (24) In that sense, at the very least, the courts are part of the political system. (25)

      The amount of input the citizens of a state exercise with regard to their courts varies greatly from state to state. Citizens potentially have more direct input in states with an elected judiciary and less input in states with an...