Jul 24 2014
Fixing a problem usually consists of seeking out those who are most knowledgeable and familiar with the situation. Such is the case when former Supreme Court Justice Sandra Day O’Connor and the Institute for the Advancement of the American Legal System collaborated to develop a merit selection plan they hope states will adopt.
This Plan gives a blueprint for states to select judges in the most nonpartisan and fair way and to ensure that judges are the most qualified for the position. It consists of four parts: a nominating commission, gubernatorial appointment, judicial performance review, and a retention election.
The judicial nominating commission component is intended to be a diverse nonpartisan committee, appointed from a variety of sources, that screens and identifies candidates to forward on to the governor. This process makes sense because the nominating commission will be able to thoroughly evaluate candidates and select the most qualified. In contrast, voters in judicial elections often choose who to vote for based on irrelevant factors, such as name recognition, position on the ballot, and perceived gender or race. The nominating commission can focus solely on qualifications such as legal experience and knowledge, judicial temperament, and community involvement.
The nominating commission then sends a short list of candidates to the governor for appointment. The Plan suggests limiting both the number of candidates on the list and the time for the governor to act. While the appointment is inevitably political, gubernatorial appointment is one place where the public can express their opinions about the candidates. Further, since all the candidates on the short list are extremely qualified, it makes little difference which candidate is selected.
The judicial performance review component allows for an evaluation of judges to be sent to the public. The committee overseeing this aspect would be compromised of selected individuals made by appointing authorities. This is important both for the judges to self-evaluate and constantly strive to improve their performance as well as for the public to have all relevant information when choosing whether or not to retain the judge.
Lastly, the plan proposes a retention election. This crucial step allows for the people’s voice to be heard. The public will decide whether the judge has performed his or her duties adequately. Here, voters will elect the incumbent to a further term or vote against them returning to the bench. The public has a right to hold their judges accountable for their actions on and off the bench.
Merit selection balances the need to ensure that judges are qualified, fair and impartial with the public’s right to hold judges accountable. Judicial elections are a political and partisan process for a nonpolitical, nonpartisan job.
If anyone would know the importance of judicial impartiality, it would certainly be a former Supreme Court justice. Justice O’Connor recognizes this importance, it is now time for Pennsylvania legislators to follow suit.