A role for disciplinary agencies in the judicial selection process.

• Author: Tembeckjian, Robert H.
• Position: Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges

All fifty states and the District of Columbia have a judicial disciplinary entity responsible for investigating complaints of ethical wrongdoing by judges and, where appropriate, disciplining or recommending discipline for those judges found to have engaged in misconduct. (1) These jurisdictions also have grievance committees to deal with complaints against lawyers. (2)

Whether a state chooses its judges by appointment, election, or some combination of the two, is there an appropriate role for a judicial disciplinary commission or an attorney grievance committee in the selection or evaluation process of judicial candidates? If so, how limited or expansive should that role be?

The answers to these questions vary from jurisdiction to jurisdiction. While all the states have disciplinary systems, there is no uniformity as to whether or to what degree the disciplinary entity may participate in the selection or evaluation process. (3)

In Michigan and Mississippi, for example, the Judicial Tenure Commission and the Commission on Judicial Performance, respectively, play no role in the selection process. (4) In Indiana and the District of Columbia, the Commission on Judicial Qualifications and the Commission on Judicial Disabilities and Tenure, respectively, are integral parts of the selection process and in fact double as the judicial nominating entity for some or all judicial vacancies. (5) For example, for vacancies on the Indiana Supreme Court or Court of Appeals, the commission nominates three candidates to the governor, who must choose from among those nominees. (6)

In New York, the Commission on Judicial Conduct plays a limited role, required by statute under certain circumstances to reveal information pertaining to candidates under consideration for appointment by the governor or being rated by such entities as a bar association evaluation committee for election or appointment. (7) (Records of attorney grievance committees may be released for "good cause" on order of the Appellate Division. (8) This approach appears to be rooted in the notion that disciplinary entities, while not necessarily oriented toward identifying those best or most qualified for judicial office, are likely to have useful information as to candidates that may be ill-suited for the bench.

The overwhelming majority of New York State's 3,400 judges are elected to office. (9) A relative few--judges of the Court of Appeals, the Court of Claims, and the New York City Criminal and Family Courts, for example--are appointed. (10)

One of the concerns often expressed regarding a shift from a predominantly elective system to an appointive system is the effective disenfranchisement of the electorate that would result. (11) One of the common rebuttals to this concern is the example of the federal judiciary, which has never been elected and was purposefully designed to be independent of the partisan political process. (12)

Without comment on whether an appointive system would be superior or inferior to the electoral method, the New York experience in a predominantly electoral system suggests that in an appointive system, participation by the judicial or attorney disciplinary entity can at least partially compensate for the lack of direct voter participation, assuming--as is the case in New York--that the system reposes the actual authority to nominate and/or confirm in elected representatives of the body politic. (13) Obviously, no system, elective or appointive, is going to be perfect or please every constituency. For any method to work, the public must have justifiable faith in the reasonableness of the structure and the good faith efforts of the participants in fulfilling their responsibilities.

Like most professional disciplinary entities, the New York State Commission on Judicial Conduct ("the Commission") operates under a strict mandate of confidentiality in the investigative stage of its work. (14) (New York is in the minority of states--thirty-eight to twelve--insofar as it requires proceedings to remain confidential even when investigation is concluded and formal disciplinary charges have been proferred against the respondent judge. (15)

There is a natural tension in this process between legitimate competing forces. The Commission must conduct its investigative work vigorously yet discreetly. (16) It must protect the confidentiality of both respondents and complainants, while weighing a compelling responsibility to provide the public, directly or through its representatives, appropriate information bearing on the qualifications and fitness of those running or being considered for judicial office. (17) There is a legitimate argument to be made that the Commission is obliged to provide enlightening, useful, and credible information to the appointing, nominating, or electing authority to ensure that such entities make an informed decision on whom to elevate to the bench. Should not a governor or the voting public know, for example, that a particular candidate for judicial office had been issued three or four private reprimands by an attorney or judicial disciplinary body?

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