Session Four: Alternatives to Electing Judges - Alfred P. Carlton, Jr., Mark S. Hurwitz, Drew N. Lanier, and the Honorable Ben W. Studdard, Moderator

• Citation: Vol. 56 No. 3
• Publication year: 2005

Symposium:

Judicial Professionalism in a New Era of Judicial Selection

October 22,2004

Session Four: Alternatives to Electing Judges

JUDGE STUDDARD: Let me start by saying first of all what a terrific Symposium. I hope you all have enjoyed this as much as I have. Perhaps some of you lead more exciting lives than I do, and this is not your idea of excitement. But it has been a tremendous exercise in both scholarship and in the real world of talking about how do we get to a judiciary that really does what thejudiciary is supposed to do, and I am grateful to all of the panelists that we have seen today. I am grateful to Justice Phillips for his presentation last night, I am grateful to Pat Longan for his great work in putting this program together, to Mercer, to the Law Review, and to all of you who have attended today and who have participated in this project, and not least of all to Yonna Shaw, who is the real brains behind the outfit, as we all know. I think we would all be remiss if we did not say one more time our thanks to Judge Lawson, whose foresight enabled us to have this program and many others like it. What a great asset for the state of Georgia and for the legal education of the community throughout this country as we have similar discussions. It has been exciting to me to have a number of members of the Court Futures Committee of the state bar here, and I know that this is going to engender much discussion into the future.

Let me introduce our final panel for today. Starting furthest from me, we have Professor Drew Lanier, Associate Professor of Political Science from the University of Central Florida, and a Ph.D. graduate of the University of North Texas, who also holds aJ.D. fromDePaul University College of Law. Seated next to him is Professor Mark Hurwitz, Professor of Political Science at the University of Buffalo at the State University of New York, a graduate of Brooklyn Law School, and holder of a Ph.D. from Michigan State University. Together Dr. Hurwitz and Dr. Lanier have four Doctorates between them. I keep thinking about that 1980s song Doctor, Doctor. It applies to both of them. They have written many scholarly works on the subject of judicial selection, as you can see from the list of their publications, many of which they have written together. I know in particular the publication Explaining Judicial Diversity: The Differential Ability of Women and Minorities to Attain Seats on State Supreme and Appellate Courts published in State Politics and Policy Quarterly last year.' The have also written for the Judicature.' They also have a publication coming out in 2006 on the state of judicial selection.³

Also with us at the other table is Alfred P. Carlton, Jr., former President of the American Bar Association, a partner at Kilpatrick Stockton in Raleigh, and a graduate of the law school at the University of North Carolina. He is listed in Who's Who in American Law⁴ and Who's Who in America,' and he is a Fellow in the American Bar Foundation. All three of these gentlemen have more credentials than I could tell you about in the time allotted for us here today.

My name is Ben Studdard. I am a state court judge in Henry County, Georgia,j ust up the road from Macon, a graduate of this law school, and I am very honored to be with you here today taking part in this program. My first very shaky efforts at trial practice conducted in this courtroom would in no way have suggested to you that I might be standing with you today. I do not feel particularly qualified to be taking part in this conversation with these very learned gentlemen, and I am very honored to be here with you. Having said that, I want to say to you that I am very much a believer in the mission of ourjudiciary and our legal profession, and the discussion that we are having is a very important one to me, and I know it is to you because of how important it is for us to have qualified judges. That is a subject that I am not sure that many of the people who do some of the things that we are here to talk about really appreciate, and that makes our discussion that much more difficult.

Noting that I am the only person on the program today to whom this applies, I am going to start my portion of the program by issuing to you this caveat. Do not assume that you learned any opinion of my own personally from anything that I say here today. You should assume that everything that I am saying is in the role of devil's advocate. Much of it will be. I am not going to tell you which parts are and which parts are not. But we are here to discuss, or to continue discussing, I should say, the subject of what lies beyond public election of judges. I appreciate the fact that the last session of panelists started us on that subject because there is so much there. I was despairing of how we would cover that in an hour and fifteen minutes, so I am glad we have a head start.

I want to start that discussion by going over with you the goals that different people have identified for a judicial selection process. Then I want to turn things over to A.P., who will talk to us about the ABA's Commission on the 21st Century in the Judiciary and what it has identified. We will then talk to Professor Hurwitz and Professor Lanier about their research.

When the state bar's Court Futures Program began last summer, we started by trying to set aside notions of political reality and asking the question, "What is it we are looking for out of a judicial selection process? What attributes should that process have?" We came up with these characteristics of a judicial selection process that I hope you will agree with, and I am going to ask for some comment about that.

First, we are looking for a process that nets to us the most qualified judiciary that we can get, and we will talk about what "most qualified" means in just a second. Second, we are looking for a process that gives us a judiciary that is independent and a process that promotes judicial independence. What is judicial independence? What is judicial independence especially when you then say that you want a process that also allows you to have a judiciary that is accountable for its behavior? On the surface, it sounds like those two things are in conflict with one another. But I think ultimately that they are not. We say that we want a judiciary that has substantive independence,the freedom to make the hard decisions that the judiciary has to make, coupled with professional accountability. We are doing this as a professionalism program because there is a real notion of professional accountability. How does that judge treat people coming into his or her courtroom? Does that judge effectively make timely decisions on matters coming before the court? Does that judge spend an adequate amount of time on the job? Is that judge making sure that he or she studies the law, continues his or her legal education, and has an adequate grasp of the matters coming before the court? Professional accountability should be coupled with substantive independence. Finally, we want a process that inspires public confidence in the process itself.

So if the goal is to achieve a process that has those four characteristics, how do we do that if we do not elect these judges publicly? I want to go back and cover the subject that I promised to cover with you, "What do we mean by a qualified judge?," and give you a couple of different. iterations of that. I first want to refer you to an article that Professor Longan prepared for this Symposium.' You will find six criteria that Professor Longan sets out for appellate judges in particular.⁷ He talks about those judges having: (1) scholarly ability and interest in the law; (2) the ability to function comfortably in a semi-monastic setting, which may apply to a lesser degree to trial judges perhaps; (3) good writing ability; (4) cooperative temperament; (5) a broad experience in life; and (6) wisdom and common sense. Those criteria are stated differently in terms of a broader way because they apply both to trial judges as well as appellate judges.

In the ABA report Justice in Jeopardy,' if you look at page TV in the table of contents, or if you look beginning on page six at the enduring principles set out in that study, you will see labeled A through H the criteria that this ABA Commission suggests are what makes a good judge. They say that judges first should uphold the law; judges should be independent; judges should be impartial; judges should possess the appropriate temperament and character; judges should possess the appropriate capabilities and credentials;judges and thejudiciary should have the confidence of the public; the judicial system should be diverse and reflective of the society it serves; and judges should be constrained to perform their duties in a manner that justifies public faith and confidence in the court. With those criteria in mind, because that is what we are looking for in ajudicial selection process, we have said that we are going to spend this hour talking about ways to do that other than through public elections. I now want to turn the session over to A.P.

Carlton to talk about both the North Carolina experience and also the ABA recommendations. A.P.

MR. CARLTON: Thank you, Judge, I appreciate that. It's great to be here. Thank you, Pat, as always. It's my second turn and I really appreciate the opportunity to come back.

We have proved once again today the admonition of Chief Justice Vanderbilt of the New Jersey Supreme Court, who has become one of the great judicial reformers of the 20th century, that judicial reform is no sport for the short winded. But here we are and we will plug on and plug our way through. In the American Bar Association, we had a six or a seven year run up to Justice in Jeopardy, and I recommend it to you. We hope that it is a worthy 21st successor to the Pound Paper⁹ published in 1906. That was the objective. I think it comes to you highly...