During his presidential campaign, President Obama expressed his desire to diversify the federal judiciary which is primarily comprised of white men.  As a result of his administration’s efforts, we have witnessed the first Hispanic sworn in to serve on the United States Supreme Court, the first openly gay man appointed to a federal district court and the first Chinese, Korean and Vietnamese women judicial nominees.  "Having racial diversity, gender diversity, experiential diversity — all of those things we are mindful of and committed to seeking out when we're looking for the best candidates," Kathryn Ruemmier, the new White House counsel, tells National Public Radio (NPR).  Almost half of the 97 candidates who have won confirmation during Obama's presidency are women and approximately a quarter are African-American. 

According to Ed Whelan, a prominent conservative who used to work in the Justice Department during George W. Bush’s administration, "The Obama administration doesn't have a coherent judicial philosophy so it's not surprising that it's falling back on diversity, which I think it sees among other things as appealing to its various political constituencies."  The notion that judges’ decision-making might be affected by their gender and race or ethnicity is incompatible to those who view "judging" as the objective disposition of cases without regard to judges' personal backgrounds, biases, attitudes, and ideologies.  However, research studies underscore the importance of diversity on the bench.  Is advancing judicial diversity a "coherent judicial policy"?  Should the face of justice be a reflection of all of us?

Many states around the country select judges through a merit selection process.  While the process can vary between states, typically a nominating commission comprised of both attorneys and non-attorneys screen judicial candidates and make a recommendation to the governor, or in some instances the legislature, concerning the judicial candidates.  While no judicial selection system is perfect, merit selection eliminates the need for judicial candidates to initially run for election, which in turn eliminates the need to campaign and fundraise.  At some point merit selection judges may have to for retention, but historically retention elections have drawn less attention and partisanship than contested judicial elections.

Since 1913, the American Judicature Society (“AJS”) has promoted sound merit selection systems throughout the country.  Recently they issued an “action alert” because merit selection systems are under a “sustained and coordinated attack across the country.”  In their action alert, they note that bills are pending in Arizona, Florida, Hawaii, Missouri, Kansas, New York, Oklahoma and Tennessee to significantly modify or eliminate merit selection plans entirely.  A copy of the AJS action alert can be found at: ActionAlert.pdf.  The alert includes links to all of the pending bills in each state which challenge the state’s merit selection process. 

Later this month, DRI’s Judicial Task Force will be publishing a report entitled Without Fear of Favor in 2011, A New Decade of Challenges to Judicial Independence and Accountability, which details the various challenges to judicial independence caused by partisan judicial elections,  As the Task Force notes in that report:

Any good trial attorney knows that in a courtroom, perception becomes reality and that maxim holds true for our legal system.  The public’s perception of the fairness of our courts is a direct correlation to its confidence in the American justice system and its respect for our rule of law.  If the public’s perception of the fairness of our courts is ever lost, immeasurable damage will result to our legal system and the rule of law in our country.

Harsh attack ads and major fundraising efforts that have become the norm in partisan judicial elections are harming the public’s perception of the fairness of our judicial system.  The organized defense bar, long a champion of level playing fields and fair court systems must concern itself with these issues.  If you practice in one of the states where merit selection is under attack, there are certain things that you can do.  Make your views known to your legislators.  As the AJS action alert aptly notes, it is of vital importance to keep money, partisan politics, and the influence of special interests out of the judicial selection process.  Also consider writing an op-ed piece or a letter to the editor defending merit selection in your home state.
Members of the defense bar are in an ideal position to protect the system of justice and the independence of the judiciary.  We must begin to do so before the concept of judicial independence is mortally wounded.

The Texas Legislature is in Session. Every two years the Texas Legislature meets for 5 months. An issue that has been addressed previously and that has become more timely in Texas is Judicial Selection. All Texas judges are elected in partisan elections. As a consequence, the "down ballot" races, such as the judicial races are often decided by hotly contested national or state-wide races. Recently, the judiciary in Houston, Harris County, virtually turned over during the presidential election of 2008 with over 40 Republican District Judges being replaced with 40 new Democrats. Because of this the issue of judicial selection is a hot button issue in Texas.

Texas Association of Defense Counsel member Mike Thompson co-authored this piece with former Texas State Bar President Broadus Spivey. It appeared in the March 16, 2009 issue of the Austin American Statesman.

OTHER TAKES
Spivey & Thompson: The problem with merit selection of judges
Broadus Spivey and Mike Thompson Jr., Local Contributors

Monday, March 16, 2009

For over 150 years Texans have enjoyed a Constitutional right to an elected judiciary. All through that history some have argued that we should move away from the system of partisan judicial elections. Most recently, those voices have included the Austin American Statesman and Chief Justice of the Texas Supreme Court Wallace Jefferson.

The Chief Justice and Statesman appear to argue for a system used in some states of "merit-selection" of judges by the Governor from a list of candidates generated by a committee and then a later non- partisan retention election of that judge. This seems to derive from the Missouri plan. The Statesman believes this would lead to a better judiciary. Supporters also argue that such a reform would remove politics from the system. Finally, they argue that the reform really isn't that big a change because the people retain the right to vote to remove judges in the retention elections. We disagree that partisan judicial elections should be abandoned and answer each of these arguments below.

Retention system doesn't create a "better" Judiciary

Those seeking change to the way Texas picks its judges suggests that the appointment and retention election system of picking judges will create a better judiciary. To fairly consider whether this is true or not, consideration must be given to what makes a good judge. Most would agree that a good judge should be independent. Most would also agree that they should also be accountable to citizens so as not to be arbitrary in decision-making.

In computing whether or not a retention election system like that proposed by the Statesman will give us a more qualified judiciary, we can draw on the experience of many other states as well as the federal system which has never settled for an elected judiciary. There is also a fair amount of research that has been done on strengths of each system. Those resources can and should be compared to the Texas system.

We believe that Texas judges, by and large, are as well qualified as those from states with retention election systems or their federal brethren. Any judiciary in the country would be proud to have judges the quality of former Texas Supreme Court Justices Joe Greenhill, Bob Calvert or Craig Enoch and present judges like the Chief Justice. All of these distinguished judges were elected or reelected to the Supreme Court in contested partisan elections.

As noted, Social Science Professors have studied the lessons of merit selection in other states. A committee studying the issue quoted Professor's Shuman & Champagne summary of the social science investigation on the subject as teaching "the quality of judges in a merit-selection system are no better than those selected by voters ... ".p. 4 "The Case for Partisan Judicial Elections," Judicial Selection White Papers, Professor Michael Debow http://www.fed soc.org/publications/pubID.90/pub_detail.asp Federalist Society, 2003 visited Feb. 16, 2009. The authors concluded: "Much research has been conducted, looking for evidence that Missouri plan judges are systematically better qualified that elected judges. No evidence of this sort has been found". p. 4.

The next question to answer to decide whether this reform will lead to a better judiciary is whether judges in merit selection states are more independent than the Texas judiciary. In the classic study of the Missouri Plan, The Politics of Bench & Bar the authors found—the competing plaintiff and defendant bar were about equally successful in obtaining seats for judges they supported for appointment. Thus, the result was a relatively well -balanced "two-party" competition. However, that competition took place in a subterranean process beyond popular control. Thus, in reality the competition continued just without the people having a meaningful say.

Politics remains in the retention system just as in system of partisan elections.

The reformers at the Statesman suggest that with retention elections, the picking of judges will be less political. Yet, as pointed out above, those who have studied the system in such states have come to a far different conclusion. The interest groups who have a significant stake in the judiciary will continue to work to promote their interests no matter what formula is used to pick judges. Again, the research shows that those with the greatest interest (i.e. The bar) have a way to make themselves felt regardless of method employed. Nor has the federal appointed system demonstrated an absence of politics in the selection of judges.

In its editorial, the Statesman argues that an imminent ruling from the US Supreme Court in the Caperton v. Massey case will change the calculus of judicial elections. While Caperton is an important case regarding recusal of judges, the Supreme Court has previously considered and found that independent political speech like that used in the West Virginia judicial elections at issue in Caperton do not pose a threat of corruption or the appearance of corruption. Randall v. Sorrell, 548 U. S. 230 (2006); Buckley v. Valeo, 424 U.S. 1 (1976).

The people don't retain any meaningful right to vote in the merit selection plan.

In the merit selection of judges plan, the people have no real right to vote. What they are left with is an uncontested retention election years after an appointment by the Governor. Social science studies researching the issue have shown that less than one percent of all judges standing for retention elections have been removed. This is significantly smaller than in partisan elective systems. Further, while turnout is low in typical judicial elections it is even lower in retention elections. With no live opponent, retention elections do not generate the publicity that brings voters to the polls. As note earlier, politics isn't removed from the merit selection process thus at the end of the day only the right of people to participate is.

Judicial partisan judicial elections have substantial advantages over the alternatives. Not least of which is that they provide an additional, significant measure of self-government to voters. Or as Professors' Chris W. Bonneau and Melinda Gann Hall propose in their new book In Defense of Judicial Elections, judicial elections are efficacious mechanisms that enhance the quality of democracy and create a link between citizens and the judiciary. Indeed, this link between self -government and judicial selection may be most important to confirm that Judges are not apart and superior to citizens they serve.

Thomas Jefferson considered the issue and wrote:

"The exemption of the judges from {election} is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them [the people] not enlightened enough to exercise their control with a wholesome direction, the remedy is not to take it [power] from them, but to inform their discretion by education."

Thomas Jefferson, Writings, Vol. XV, p. 278. We believe Thomas Jefferson was right and the people's right to meaningfully participate in electing their judges should be preserved.

Broadus Spivey is an Austin attorney and former president of the state bar. Mike Thompson Jr. is an Austin attorney. He is a member of the Federalist Society, the Texas Association of Defense Counsel and Sam's Club.