judgesonmerit.org

Last week, former United States Supreme Court Justice Sandra Day O’Connor joined members of the North Carolina Association of Women Attorneys and South Carolina Women Lawyers Association for dinner and discussion. As the Briefcase (the blog of the South Carolina Women Lawyers Association) reports, there was a wide-ranging discussion, including Justice O’Connor’s criticism of judicial elections.  During the question and answer period, Justice O’Connor offered more straight talk on judicial selection:

Question 3. A request from a lawyer in the Charlotte area for advice on how to change a system of judicial elections to merit selection.

“Put together some citizens, preferably some with some clout,” Justice O’Connor said. Voters want to keep their right to vote, and they can, in a system of merit selection plus retention elections. “Get judges in there and see how they do. If you don’t like them, vote them out,” she said. “That’s how you sell it.”

That makes sense to us.  Retention is a key part of the currently pending Merit Selection proposals in Pennsylvania for just that reason. Thanks, Justice O’Connor.

Washington State University is reporting that its recent survey on judicial selection (conducted with the American Judicature Society) reveals that voters are dissatisified with the current electoral system and favor implementing a Merit Selection system.  The two elements that were most appealing about Merit Selection were the use of a nominating commission and the inclusion of regular retention elections.

Survey respondents valued the idea of a nonpartisan nominating commission composed of lawyers and nonlawyers.  They believed the commission would focus judicial selection on qualifications and also would limit the Governor’s discretion in making judicial appointments.

Central to the survey’s findings was the respondents’ beliefs that a Merit Selection system with regular retention elections would actually provide more opportunity for voter input in judicial selection.  Voters felt that having every judge stand for retention at regular intervals would increase accountability and give voters an important chance to weigh in on a judge’s performance.

The researchers observe that:

It is clear that in a head-to-head choice, after having considered in some detail the major characteristics of both the current nonpartisan election system and the hypothetical commission-based system, the registered voters surveyed in Washington during the 2008 election season clearly prefer the commission system.

We hope voters in Washington will have an opportunity to decide whether to implement a new way to choose their judges.

Once again, we’re faced with opponents who fail to recognize the inconsistencies in their own positions. In a recent post attacking Merit Selection, Dan Pero of American Courthouse demonstrates that he really prefers a judicial selection system that involves no direct public participation at all.

He’s talking about the federal system, a pure appointment system. The president nominates a judge, who then must be confirmed by the Senate. If confirmed, the judge serves for life. There’s no retention process; the judge never goes before the public in any sort of election or evaluative process.

Under Merit Selection, by contrast, after an initial four year term on the bench, the appellate judge would stand before the public in a retention election. The public would have the ultimate opportunity to determine whether the judge should continue to serve for a full ten-year term. This process is repeated every ten years thereafter (until the judge voluntarily resigns or reaches the mandatory retirement age).

We understand that the President (who nominates) and the Senators (who confirm) are elected representatives of the people and that the people are therefore represented in the federal process. We agree, and point out that this is also true in Merit Selection where the Governor nominates and the Senators confirm. But retention offers a direct role for the public to weigh in on whether the judge should remain on the bench.

So, when you’re talking about democracy and a role for the people, Merit Selection offers more than the federal system.