Selection of judges

After reading the selection below (as well as any other resources you find on the topic), state whether you favor electing judges or appointing judges. Support your answer with the reasons you favor one manner over the other. 

This is a graded assignment. As before, credit will be given not based on your viewpoint but rather on whether you put forth a good-faith effort in your post. A good-faith effort can me made for a range of word counts. However, at a minimum, your post must reach 250 words. If your post is not at least 250 words (not counting fluff, repetition of the topic/question, etc.), you will receive zero credit. !!!!!!!!!!!!!!!!

After reading the selection below (as well as any other resources you find on the topic), state whether you favor         electing judges or appointing judges. Support your answer with the reasons you favor one manner over the other.


The lingering debate
on merit selection

Should judges be elected or appointed?

THE QUESTION of whether to elect or appoint judges has had a long and turbulent history in Illinois. Three times in the last 20 years the voters of the state have been asked to vote on constitutional proposals altering the judicial selection process. And the debate isn’t over. There are several proposals currently before the Illinois General Assembly which, if enacted, would change the selection method. Proponents of the present elective system are fighting to keep the public directly involved in choosing their judges. Opponents of this method have proposed that judges be selected by a merit plan in which a commission nominates candidates and presents a list for executive appointment.

The issue of judicial selection cuts to the very heart of our national democratic tradition. On one hand, there is a recognition that justice must be administered impartially. Judges must be selected because of their ability as jurists, not simply because of their political affiliations. A judge in deciding a case must be governed by principles of law and the merits of the litigant’s case, not the litigant’s political position. On the other hand, under our common law tradition, judges, particularly appellate judges, decide cases which become law. Judges are given immense power in this country power to interpret statutes, review administrative decisions and declare legislative and executive actions unconstitutional. The fact that judges often decide issues of tremendous significance to the general public means that the public must retain some control over the judiciary. Actually voting for judges is one means by which the public can exercise this control.

The root of the selection problem stems from the belief that it is possible to separate law from politics. Law is related to politics as trees are to a forest. It is possible to separate the two, but the result is a pile of dead wood and a barren field. Law grows out of politics; it is the end product of the political system, and the two cannot be separated. Nevertheless, even the most ardent advocate for democratic institutions recognizes that a court of law must be governed by a different set of rules than those which govern the legislative or the executive branches of government. A judge must transcend partisan politics and must definitely strive for justice in reaching a decision. A judge must not be governed by what may be the passing whim of the body politic. Judges have traditionally served as a check on the transient impulses of the legislature or the executive. The crucial factor in choosing a judicial selection process is not to eliminate politics, but to control politics. The issue is simply this: What is the proper blend of political influences and who or what group should exercise the political power to select judges?

Methods of selection

The two basic methods used in the selection of judges in the United States are election and appointment. Elective methods may be either partisan or nonpartisan. In partisan elections the judicial candidate is nominated by a party and runs with a party identification. In nonpartisan elections the judicial candidate is generally nominated in a nonpartisan primary and runs in the general election without a party label. Appointment methods used in other states differ on where the responsibility rests for the important decisions; they are made either by the governor, the legislature or a judicial nominating comission. The method which uses the judicial nominating commission is generally referred to as merit selection or the Missouri plan. (Missouri in 1940 became the first state to adopt the judicial nominating commission system.) Most states use a combination of elected and appointed systems. For example, Missouri uses merit selection for its state appellate and supreme court judges and its trial judges in the counties of St. Louis, Jackson (Kansas City), Clay and Platte, but election is used to select trial judges in the rest of the state. Executive and legislative appointment plans are popular principally among the original 13 states. In many of these states appointments by the governor must have the advice and consent of at least one of the houses of the state legislature.

The federal judiciary is selected by executive appointment. The president makes all judicial appointments with the advice and consent of the Senate, but significant roles are played in the selection process by the senator of the president’s party from the state in which the vacancy exists, the Justice Department and the American Bar Association. President Jimmy Carter has taken the first step in selecting U.S. judges on merit by establishing the U.S. Circuit Court Judge Nominating Commission to propose candidates for the U.S. Court of Appeals.

New states admitted to the Union in the early 1800’s generally adopted a system of electing judges. The election of judges was consistent with the theories of Jeffersonian Republicanism and Jacksonian Democracy which prevailed during the period. Judges ran for election and retention in partisan elections. Following the Civil War and

FRANK J. KOPECKY Director of the Center for Legal Studies at Sangamon State University, he is an attorney. The author acknowledges Mariann Pogge, graduate assistant for the center, for her research assistance.

14/ December 1977/ Illinois Issues

the rise of urban political organizations, the popularity of choosing judges by partisan election began to wane. Reformers began advocating the selection of judges through nonpartisan elections. Judges would run in primaries without party labels, and the two with the highest vote in the primary would stand for election in the general election. This movement gained some degree of popularity, and the nonpartisan election is now used in 17 states including Michigan, Minnesota and Wisconsin.

In recent years there has been a decisive, if not overwhelming, trend toward the use of the merit selection or the Missouri plan. According to the American Judicature Society, a citizens group formed to promote court reform, 27 states now select a portion of their judges through a merit selection process. No state has changed to any plan other than merit selection during the last 25 years.

A merit selection plan generally has three key elements: (1) a list of qualified candidates (usually three) developed by a nonpartisan judicial nominating commission made up of lawyers and nonlawyers; (2) appointment of the judge by the governor from the list developed by the nominating commission; (3) a short probation period for the judge followed by a retention election in which the judge has no opponent but must receive enough “yes” votes to be retained.

The major variation in merit selection states is found in the membership of the nominating commission. In some states the majority of the commission is made up of lawyers; in others nonlawyers constitute the majority. The number of commission members selected by the governor or bar associations also varies. In Missouri the nominating commission for appointing trial judges consist of two lawyers elected by lawyers who practice in the district, two nonlawyers appointed by the governor, and the presiding judge of the appellate court which hears appeals from the trial court. In theory, these members vigorously screen candidates and nominate three qualified individuals to the governor, who must appoint one of the three. The makeup of the commission is designed to represent the interests of the bar through the lawyers, the judiciary through the appellate judge, and the general public through the members appointed by the governor. Because of his ability to pick one out of the three candidates nominated, the governor has a significant role in the selection process.

Defenders of the election system argue that judges make law and that the public must have a voice in the lawmaking process

Proponents of merit selection contend that higher quality judges who have greater independence are placed on the bench through merit selection. The qualifications of judicial candidates are thoroughly reviewed by a panel whose members have the expertise necessary to evaluate those characteristics of a good judge. It is also contended that lawyers with exceptional judicial talents are more likely to seek judicial office through this nominating process than through a political nominating process. Lawyers would no longer have to spend years developing political support within the party in order to obtain a judicial nomination. Political influence would be minimized and the independence of the judiciary insured because judges would no longer have to run in partisan elections with the support of the party as is now required. The election system is criticized because a majority of the voters do not know the candidates in a judicial election; judicial campaigns usually attract little attention, and the general public has no criteria for determining which candidate will make a good judge.

Defenders of the election system generally begin with an impassioned plea for democracy. They argue that judges make law and that the public must have a voice in the lawmaking process. It is generally contended that members of racial and ethnic minority groups have a better opportunity to become judges through the local political processes than through a merit selection process. Furthermore, it is argued that politics are not removed from the selection process. Gubernatorial and bar association politics are merely substituted for local politics and the general public is left out of the system.