In North Carolina, a judge of the state Supreme Court was blamed for delivering a verdict that apparently sides with pedophiles. In a different case, Illinois witnessed a bizarre attempt by the plaintiff’s lawyers to use millions of dollars to topple a judge who was hearing a case that involves large sums of money. These and many other examples illustrate just how the process of selecting judges has been interfered with by politicians, has become polarized, and is now the playground for special interests. With the majority of states using elections as the main process for filling judicial vacancies, the trends are not going to change any time soon.
Debates over how judges are to be selected are often framed as being a decision between hard-fought elections and selection by merit. In case of contested elections, the nominating commission approves or disapproves of those who are vying after they are appointed by the governor and then present themselves for elections (Neubauer & Fradella, 2018). Yet, the selection of judges based on merit is often structured in a way that reveals its weaknesses such as the application of retention elections which eventually become expensive and politicized, and the absence of sufficient processes for recruiting the candidates.
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It is a matter of fact that states ought to consider coming up with a new blueprint for reforms in judicial selection. Such reforms should be premised on the knowledge that people already have about the current selection systems which inhibit the important values of the state. Failures of the current systems include impeding the independence of the judiciary, the legitimacy of democracy as well as the diversity of those occupying the judicial bench. More particularly, empirical evidence has proven that election for retention place a lot of pressure on the candidates and threatens the fairness of courts. Yet, it remains to be a process that demonstrates just how weak states are since judges are often reconsidered for retention. Reforms that would ensure that the country moves past these debates could involve coming up with better selection methods that would address the problems presently facing the courts.
The debates on the various strategies for selecting judges have also been based on whether merit selection ensures that fairness and diversity in the judiciary are maintained. There are those who suspect that the merit selection system will be biased against minorities and women. This thought arises from the fact that the commissions for doing the selection may be dominated by members who are from a particular social grouping (Goelzhauser, 2018). For example, there are commissions that have been formed with predominantly white people, males, conservative people, or even Protestants. This composition of the selection committee may bar women and judges from minority groups from getting an opportunity to serve in the judiciary (Carpeneti & Frazer, 2018). There must be diversity on the bench and therefore women and minority groups must be as represented as any other groups of citizens. Nonetheless, only a few empirical researchers have come out to criticize the merit selection process.
The merit selection involves choosing members of the judicial bench by applying a nonpartisan commission of lawyers as well as other people who may not be lawyers. The commission is the one that locates possible candidates, recruits, investigates, and evaluates them. The commission then goes ahead to submit the names of the people whom they have found to be most qualified to the governor of the state who is the appointing authority (Esterling & Andersen, 1999). The governor then appoints the persons who he or she deems fit to take the job. If the judges are to be selected for subsequent office terms, they are evaluated again either by the same commission or elected in an election that should not involve campaigning.
It should, however, be known that merit selection does not guarantee lifetime judgeship as it happens with the federal judicial system. While each state has its own details about the merit selection process, the systems ensure that the appointed judges are to be elected by voters once they have made a judicial record for themselves. The method of merit selection is also one that does not totally eliminate politics in filling judgeship vacancies (Neubauer & Fradella, 2018). Nonetheless, it minimizes the influence of politicians since it eliminates the need for candidates to campaign as politicians do. It means that a judicial candidate does not raise campaign funds, advertise himself or herself, or even campaign to get the attention of voters. If these activities are allowed in the selection of judges, the independence of the judiciary would be compromised.
Merit selection solves the problems that come with the election of judges. Democracy needs that people make choices based on information. Sometimes, the number of candidates in a large area can be so big that the voters cannot satisfactorily make an informed choice about them. At the same time, candidates in most states run unopposed and the voters find themselves not able to make a choice at all (Neubauer & Fradella, 2018). There are also other challenges that arise in such elections. First, the expectation of the public to get a fair judicial hearing becomes compromised due to the political pressure that comes with elections. In fact, there are certain states where a judicial candidate has to campaign in order to be nominated after which he can be elected or not. This has the potential to compromise the independence of the judge in the future.
In partisan states where the election is the process used to fill judicial vacancies, political credentials are given the first priority. In many states, judgeships are about political favors. As such, a judge who has been elected to the bench will be expected to carry with him or her, a load of obligations to the people who assisted him or her to win the election. In the same way, there are many qualified lawyers who do not have the right political credentials who miss out when an election system is used. Merit selection is therefore able to widen the pool from which the committee that chooses judges can make its choice (Goelzhauser, 2018). In addition, since most of those who campaign to get judgeship positions are not able to personally finance those campaigns, they will often find themselves having to raise that money. Much of the funds they get come from lawyers who will even appear in front of them while representing clients. This will most likely affect the fairness of the courts.
So, practically, the merit system is by far much better than the elective system. The elective system cannot satisfactorily uphold the principles of democracy whether it is partisan or nonpartisan. The traditional rhetoric that accompanies campaigns has no place in judicial elections since voters will not have sufficient information on which to base their decisions (Esterling & Andersen, 1999). Contrarily, merit selection is the best system because it gets rid of unqualified applicants and ensures that the most qualified applicants get a chance to be appointed. Additionally, those who seek to be judgeship candidates are spared the hustle of having to campaign and raise funds. Furthermore, the emphasis of the merit system is on professional qualifications rather than the connections that candidates have with politicians.
It should also be acknowledged that judges who take positions on the bench are selected in a manner that they find themselves free from the obligations that they would otherwise have on attorneys who financed them. A candidate who is highly qualified is put in a situation in which he or she will serve the people without being compromised by any special interests (Neubauer & Fradella, 2018). With the merit selection system, women and minorities stand a better chance of succeeding in their applications. Since merit selection emphasizes a person’s qualifications, women and people from minority groups will be considered in the process of selecting judges. A woman is more likely to become an appellate judge when chosen through the merit system than when elections are involved.
In conclusion, it is clear that the manner in which judges are selected greatly influences the kinds of courts and justice that America has. Numerous states have embraced various judicial selection processes which have turned out to be highly politicized and polarized. While there is a high level of awareness about the problems which face courts at the state level, the majority of the suggested solutions have not fully been able to solve the problems. It is time for America to rethink the judicial selection method, perhaps be more innovative and get the best selection method applied across all states. For now, the selection of judges by merit appears to be the best of those that are currently in place. However, this does not mean that selection by merit is a perfect method. By sifting out the unqualified judges and employing the most qualified, this process is better than the others. Merit selection ensures that emphasis is placed on the candidates’ qualifications and not on the political credentials they have.
References
- Carpeneti, W. L., & Frazer, B. (2018). Merit Selection of Judges in Alaska: The Judicial Council, the Independence of the Judiciary, and the Popular Will. Alaska L. Rev., 35, 205.
- Esterling, K. M., & Andersen, S. S. (1999). Diversity and the judicial merit selection process: a statistical report. Research on Judicial Selection, 2, 2-39.
- Goelzhauser, G. (2018). Does Merit Selection Work? Evidence from Commission and Gubernatorial Choices. Journal of Law and Courts, 6(1), 155-187.
- Neubauer, D. W., & Fradella, H. F. (2018). America's courts and the criminal justice system. Cengage Learning.
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