Posted by: JanF | March 30, 2011

Courting disaster, Part 1 – A Supreme Mess?

Courts of appeal at the state level are in the news these days and many people are as surprised by the fact that appellate judges are elected as they are by the acrimony involved in these races.

The surprise is understandable since there are many different ways that judges are chosen for appellate courts with about half the states electing their jurists and the other half using merit selection or another form of appointment.

Most of us are familiar with the federal system.

The Federal Court System is often a topic around election time but only in the discussion of how the winner-takes-all for the right to make appointments to the bench. There are 9 Supreme Court justices, 179 appellate judges in 12 circuits and 677 federal judges in 94 districts. All of these judges are appointed by the president and subject to confirmation by the U.S. Senate. They serve lifetime terms and impeachments are rare (there have only been 12). In addition, federal magistrates help in the court system and have the same standing as federal judges but are appointed for a fixed term.

There are generally three ways that the states (and the District of Columbia) choose appellate court judges:
1. Merit selection from nominating commission
2. Elections, either non-partisan or partisan
3. Appointed by governor or legislature

In some states elected judges have to run for re-election and in others, the judges periodically run in retention elections where voters decide whether to retain or release a judge.

Merit selection is generally done by a nominating commission. One example is the Florida commission:

The composition of the Commissions is laid out elsewhere in the Constitution, which requires that each Commission be composed of:
a. Three members appointed by the Board of Governors of the Florida Bar from among Florida Bar members who are actively engaged in the practice of law with offices within the territorial jurisdiction of the affected court, district or circuit;
b. Three electors who reside in the territorial jurisdiction of the court or circuit appointed by the governor; and
c. Three electors who reside in the territorial jurisdiction of the court or circuit and who are not members of the bar of Florida, selected and appointed by a majority vote of the other six members of the Commission.

The Constitution prohibits judges and justices from serving on any Commission, and disqualifies Commission members from being appointed to judicial office until two years after they leave the Commission It also sets the term of office of Commission members at four years.

State by State

Here is the breakdown of the methods for appointing appellate court judges in the states:
1. Elections are held in 21 states for varying terms: 12 in non-partisan elections and 9 in partisan elections
2. Appointed by governor for a fixed term in 4 states
3. Appointed by legislature for fixed term in 1 state (Virginia)
4. Merit selection by nominating commission for various terms in 25 states

In all instances where judges are chosen by election, they must run for reelection. In Montana, if they are unopposed they must run in a retention election.

In all instances where judges are chosen by merit with a nominating commission, they are subject to retention elections except South Carolina where they are reappointed by the legislature.

In the four instances where the governor appoints the judge, one requires a retention election, one requires the governor reappointing the judge and two are appointed with no further review (in Massachusetts, judges have a lifetime term, in New Hampshire they serve until they are 70).

About those elections.

Keep in mind that “non-partisan” is in the eye of the beholder. Those states who admit to partisan elections are probably being more honest.

So it would follow that elected judges might have partisan tendencies and even be elected because of partisan leanings. But what happens it their partisan leanings might tempt them to put their thumb on the scales of justice and sway the court?

That is where recusal would come in. Recusal is also called “judicial disqualification” and is when a judge removes himself or herself from a case because of a conflict of interest. There are some guidelines for recusal but generally it is up to each judge. Any party can file a motion for recusal and the failure of a judge in a lower court to recuse may be grounds for appeal.

Why do we care?

There is a lot of law decided in state courts. While one state’s judgements do not create binding precedents for other states they may present persuasive precedents. For that reason, the rulings of one state may impact another.

There are many passionate beliefs on both sides: elected versus selected. What do you think?

Some questions:
1. Which method seems to be the wisest?
2. What are the pros and cons of the electoral basis for selection?
3. What are the pros and cons of the merit selection basis?

Tomorrow we will look more closely at what can go wrong with each method (including what has already gone wrong).

(A version of this post originally appeared on 03/30/2011 on BPI Campus)