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Judicial Selection. How best to select Supreme Court Justices. Judges are Different. Not elected to represent constituents. Not elected to enact a particular program. A judge’s role is to impartially decide cases based on facts and the law. Judges are Different.

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Judicial Selection

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judicial selection

Judicial Selection

How best to select Supreme Court Justices

judges are different
Judges are Different

Not elected to represent constituents.

Not elected to enact a particular program.

  • A judge’s role is to impartially decide cases based on facts and the law.
judges are different1
Judges are Different

Rules prohibit promises regarding how judge will rule on controversial issues.

  • Such restrictions are being challenged.
  • If lifted, judiciary likely to be more politicized.
judicial elections have been politicized
Judicial Elections have been Politicized

Huge sums of money have been spent on court races.

  • 1980’s campaign for seat on Ohio Supreme Court - $100 thousand.
  • Today - $2 million.
  • Advocacy groups have spent millions more.

Source: The New Politics of Judicial Elections 2000–2009: Decade of Change Published August 2010

The Brennan Center and Justice at Stake

super spenders

Who are the super-spenders?

On the right:

Chamber of Commerce, National Association of Manufacturers, Big corporations

On the left:

Wealthy trial attorneys

super spenders1
  • Top 5 spenders in 10 most costly elections averaged $473,000.

Source: The New Politics of Judicial Elections 2000–2009: Decade of Change Published August 2010

The Brennan Center and Justice at Stake

what do contributors expect
What do Contributors Expect?

Contributors expect results!

Problematic when candidate is a judge.

  • Judges expected to be impartial.
  • Large contributions threaten appearance of impartiality.
  • Massey v. Caperton
what do contributors expect1
What do Contributors Expect?
  • 2006 N.Y. Times interview quoted Justice Pfeifer of the Ohio Supreme Court:
  • “I never felt so much like a hooker down by the bus station…as I did in a judicial race. Everyone interested in contributing has very specific interests. They mean to be buying a vote.”
impact of citizens united
Impact of Citizens United
  • Citizens United v. FEC, Supreme Court, January, 2010:
    • Corporations and unions may spend unlimited amounts of money to support or oppose candidates.
    • Impartiality of Judges who benefit from such contributions threatened in appearance if not fact.
what do people believe
What do People Believe
  • Seven out of ten people believe that judge’s decisions are affected by contributions.
  • Nearly half of state judges agree.
what do people believe1
What do People Believe?
  • Harris Interactive Poll, June 2010

Source: The New Politics of Judicial Elections 2000–2009: Decade of Change Published August 2010

The Brennan Center and Justice at Stake

what should we do
What should we do?

Educate voters about role of judiciary:

  • Why information that is relevant to other kinds of political campaigns is not relevant to judges.
what should we do1
What should we do?
  • Educate voters about where to get information
    • …and what information is important.
where to get information
Where to get Information?

Candidate’s Forums – ask relevant questions:

  • Judicial philosophy
  • Effectiveness
  • Character
  • Experience
where to get information1
Where to get Information?
  • Judicial Voter Guide on Secretary of State’s website
  • LWVO/EF Voter Info. Bulletin
      • Judicial performance evaluations can be useful – but understand the possible bias of the entity making the evaluation.
relevant criteria
Relevant Criteria
  • Judicial temperament for trial court judges
  • Legal backgroundfor appellate court judges
judicial scorecards can be misleading
Judicial Scorecards can be Misleading

Judge may be rated on one or two decisions of particular interest to “scoring” organization.

  • May not take into account that judge is supposed to decide case based on facts and precedent – not personal political belief.
we can make judicial selection less political
We can make Judicial Selection less Political

Change to…

Other reforms that address problems of Money in Judicial Elections:

  • Public Financing
  • Stricter Recusal Rules
  • Formal Evaluation of judges
other methods of selecting judges
Other Methods of Selecting Judges

Other countries do not elect judges.

Federal judiciary is not elected.

Many states do not elect their judges.

  • Some use appointment system.
  • Many use appointment/retention system.
lwvo ef supports appointment retention election system
LWVO/EF Supports Appointment/Retention Election System

Since 1973 LWVO/EF has supported appointed judiciary constitutional amendment.

Unsuccessful attempt to pass a ballot initiative in 1987.

Currently LWVO/EF working with OSBA to educate Ohioans about the benefits of Appointment/Retention Election System.

who would do the appointing
Who would do the appointing?
  • Governor would appoint from list selected by commission.
  • Commission would be diverse.
  • Meetings of commission would be open.
evaluation process
Evaluation Process
  • Sitting justices performance to be evaluated by diverse appointed commission.
  • Evaluations to be made public.
  • Information would enable voters to make informed decision in retention election.
retention election
Retention Election
  • After period in office, justices subject to retention election.
  • Voters to have benefit of public evaluation to determine whether they should be retained.
  • If voters do not retain sitting justice, commission nominates replacement.
other measures supported by lwvo
Other Measures supported by LWVO
  • Public Financing
  • Transparency & Reporting of Contributions
  • Stricter recusal standards
  • Bi-Partisan or nonpartisan commission
  • Judicial Performance Evaluation
public financing
Public Financing

Reduces influence of large contributors.

Focuses campaigns on candidates’ qualifications.

May encourage broader pool of candidates.

Has been successfully pursued in North Carolina.

transparency timely reporting of contributions
Transparency & Timely Reporting of Contributions
  • Public has “right to know” who is contributing to a judge’s campaign.
  • Same principles as applied to other elective offices.
    • Following Citizens United decision, information becomes even more important.
stricter recusal standards
Stricter Recusal Standards
  • “Recusal” refers to the circumstance where a judge declines to hear a case because impartiality may be questioned
  • Importance highlighted by Supreme Court decision in Massey v. Caperton.
  • Argument that not needed because of limits on individual contributions.
bi partisan or nonpartisan commission
Bi-Partisan or Nonpartisan Commission
  • Without constitutional amendment, Governor Strickland has implemented a bi-partisan commission to make recommendations to governor about candidates for judicial vacancies.
    • Continuance of commission subject to decision of subsequent governors.
judicial performance evaluation
Judicial Performance Evaluation
  • Provides voters with objective, relevant information to base decision on selecting judges.
    • Even without adopting retention election system, information would be valuable if provided by diverse commission.
role of judiciary separation of powers
Role of Judiciary/Separationof Powers

Independent and impartial judiciary has critical role to play in maintaining the separation of powers.

Judiciary prevents abuse of power by other branches.

If judges are elected to carry out a political agenda, they cease to perform this function and impartiality is threatened.

what can local leagues do
What can Local Leagues do?

Hold candidate forums for judges.

Promote Secretary of State’s Voter Guide on the Judiciary.

Educate voters about unique role of judiciary.

Educate voters about reform measures.