Perspectives on judicial selection reform: the need to develop a model appointive selection plan for judges in light of experience.

• Author: Greene, Norman L.
• Position: Issues Facing the Judiciary

I wish to thank Albany Law School, its law review, and Professor Vincent Bonventre for inviting me to this symposium. The school's sponsorship of this program reminds me of a discussion that I had with a law professor. The professor said that a number of law schools would be reluctant to look at state judicial selection because they consider the federal judiciary a more prestigious subject, despite the fact that state courts hear most of our cases and supply the judges with whom we most often interact. (1) I am glad that Albany Law School deemed this subject worthy of its study.

"No subject in American law has drawn as much ink, and sweat, as the debate and fight over which method of selecting judges is least unsatisfactory." (2) I would like to mention to you three of the important pieces of literature in this field. One is Justice in Jeopardy, which is the American Bar Association report published in 2003 on judicial selection reform. (3) The American Bar Association recommends appointive selection of judges as its preferred method of judicial selection. (4) Another is the Association of the Bar of the City of New York's Task Force Report on judicial selection reform, also published in 2003, which likewise recommends appointive selection of judges. (5) A third is Stephen B. Bright and Patrick J. Keenan, Judges and the Politics of Death." Deciding Between the Bill of Rights and the Next Election in Capital Cases, which recommends appointive selection to enable judges to decide impartially on the law without fear of losing their jobs for making unpopular decisions. (6) In particular, the article discusses how elected state court judges often demonstrated their "tough[ness] on crime" through their conduct in capital cases in order to ensure their electability. (7) Judges should not have an incentive to bow to public sentiment--including by penalizing the unpopular, whether in civil or criminal cases--so as to advance or preserve their careers. (8)

Despite such extensive literature supporting appointive selection as opposed to judicial elections, the question of whether appointive selection will take hold in particular places has drawn some pessimism. Professor Roy Schotland of Georgetown University Law Center once commented that appointive selection could not be achieved in certain locations for centuries if the current pace of judicial selection change were to continue. (9) However, Professor Schotland's statement was not categorical, and he recognized changes which might lead to a different perspective on the subject. (10) Others have also stated that appointive selection reform would not be achieved in their lifetime, as if that were an argument. (11) But that is not an argument. That is just a statement or excuse not to seek reform. Obtaining judicial selection reform depends on work to reform the process. (12)

In the 1970s, when judicial selection by appointment came to the New York Court of Appeals, there were doubters as well, and yet it occurred anyway. (13) In New York, the catalyst towards reform consisted of problem elections which upset people who had the power to make a change. (14) One such catalyst was Court of Appeals candidate, and later Judge, Jacob Fuchsberg, a wealthy trial lawyer who was not part of the establishment. In addition, he was never a judge before. (15) He ran against Charles Breitel, a respected Court of Appeals judge, but lost. Judge Fuchsberg ran again and this time defeated appellate judge Harold Stevens. But Judge Breitel and Governor Hugh Carey, among others, decided that the selection process needed to change and supported an appointive selection system for the New York Court of Appeals. (16) This was the subject of a public relations campaign, but no public hearings; almost suddenly appointive selection arrived in New York. (17)

Voters in New York, as elsewhere, generally do not even know who the candidates for judge are, and they often do not vote for judicial candidates at all. (18) Adequate voter guides to describe the judicial candidates are lacking. Voter guides should provide useful information, far beyond the equivalent of mere name, rank and serial number. Such information might include whether the judicial aspirant is scholarly, a good administrator, courteous, patient and fair, as opposed to rude, intemperate, biased, unfair, or tyrannical. Some of this information is readily discernible from interviews with persons with experience with the candidate. Colorado's judicial evaluations, which are disseminated to the public, are a positive model. (19) At most, the bar associations or screening panels obtain such information if their work is thorough, but they generally do not share the details with the voters. Rather, they just say that the candidate is "qualified" or "not qualified," without explanation. Judges also get elected despite unqualified ratings, which may not be surprising since the words "not qualified" convey no specifics. (20)

New York's selection plan for its Court of Appeals, "as good as it may be in comparison to others, is not nearly as good as it should be." (21) For example, New York has a system that reportedly has had the practical effect of deterring applications from qualified candidates. (22) For a recent vacancy, only one appellate judge from all the New York Appellate Division justices, Eugene Pigott, was said to have applied to be a Court of Appeals judge. (23) He was also reputed to be a favorite for the position, along with the Governor's former counsel, James McGuire. (24) One would think that every Appellate Division justice who does not mind spending part of his or her time in Albany would want to be on the New York Court of Appeals. But there is a perception that only persons close to the Governor have a chance--that the Governor is controlling the process--even though there is no requirement that the commission recommend anyone close to the Governor. (25) It takes substantial time and effort to apply to be a Court of Appeals judge, and undoubtedly few would wish to waste their time to apply just to have a preordained result.

A judicial nominating commission must have rules. One rule should help prevent the situation described above where a governor is able to ensure that his candidate is recommended by the commission and then ultimately selected. Such a rule might state that if a commissioner hears from the governor or someone on his behalf as to whom the governor favors, the commissioner must report that to the chair of the judicial nominating commission who must make it public. The question of a proper penalty for such a communication is interesting. Disqualifying the reportedly favored candidate is not a good option. The candidate could be a good judge and may have had nothing to do with the situation. Alternatively, the praise from the governor might be a "false positive." The governor might not like the candidate and therefore might praise him just to be rid of him. A sensible remedy would be to deprive the governor of his right to select that round, with the choice going instead to a respected official in the particular jurisdiction, such as a chief judge who would be required to select from the already approved panel. The deterrent effect may be significant, with future governors seeking to avoid public embarrassment and disenfranchisement.

Furthermore, the plan should be devised so as to ensure that the commission and its members are complying with commission rules. Some oversight is essential to ensure compliance. A reasonable solution is a review panel which one might call a judicial nominating review commission, with access to the records of the nominating commission. Other suggestions might include an individual, such as an ombudsman or perhaps an office of court administration. In addition, some commission-based plans do not build in sunshine or open meetings provisions and leave the commission operating in secret. To avoid public suspicion, greater transparency should be built into the process. "IT]he public generally is suspicious of important governmental processes which appear to be cloaked in secrecy." (26)

I was speaking to the administrator of the judicial nomination commission in Massachusetts about the need for oversight after Governor Mitt Romney voluntarily established the Massachusetts commission by executive order. (27) They have a detailed code of conduct for the judicial nominating commissioners. I asked her what would happen if a judicial nominating commissioner were to violate the commission's rules and perhaps not attend meetings, or worse. "That's easy," she responded. "I'm there at every meeting. If that happens, I can just report the incident to the Governor and the Governor will remove him." (28) Of course, that is easier in Massachusetts, since the governor picks all members of the judicial nominating commission. But not every system would accept having a governor's representative present at all meetings of the judicial nomination commission. At the very least, that might give the appearance of the governor having too much control over the selection process. (29)

Classical theory states that the judicial nomination commission should not contain any members selected by the appointing authority. The appointing authority can pick the judicial nominee from the selections put forward by the commission, but such authority should not choose the persons (namely, the commissioners) who make the selections. As stated in an American Judicature Society publication:

Since merit selection is intended to deprive the executive of the opportunity to make judicial appointments solely on the basis of his political motivations (and to remove the political pressures on him to do...