Another election - low voter participation with two statewide races, including a State Supreme Court position.
Is electing Supreme Court justices the best way to fill these important positions?
A state Supreme Court is the ultimate judicial tribunal in the court system of a particular state - in other words, the state's court of last resort. Generally, the state Supreme Court is exclusively for hearing appeals of legal issues - in other words, it holds no trials.
The size of state supreme courts throughout the nation vary; five, seven or nine. Wisconsin has seven. The term lengths range from six to twelve years in most states. Wisconsin has 10-year terms. New York has 14-year terms. Four states have lifetime tenure.
Each state panel of Supreme Court justices is selected according to methods prescribed in that state's constitution. In two states, Virginia and South Carolina, they are elected by the state legislature. In 12 states, the governor appoints them with the consent of another body, usually the state senate.
Six states elect their justices via partisan election. Fifteen states, including Wisconsin, elect their justices through non-partisan election. However, "non-partisan" is usually in name only. It merely means that prospective judges' parties are not printed on the ballot.
Fifteen states use some variant of the so-called "Missouri System." This system, also known as the "merit plan," originated in Missouri in 1940 after some contentious judicial elections heavily influenced by the Pendergast political machine. Under this system, a non-partisan commission reviews candidates for a judicial vacancy. The list of candidates considered best qualified is sent to the governor who selects from the list.
One can never take politics totally out of the selection of justices. But the objective of a merit system is to relieve judicial appointments from the more tawdry aspects of politics and campaigning. Many people believe that candidates for high court should not have to go through the process of raising money and campaigning in the manner of candidates for executive and legislative branches of government. Even the most high-minded, well-intentioned - and let's give the benefit of doubt, successful - efforts of a justice to remain uninfluenced by campaign contributions nevertheless leave the perception of influence peddling.
There have been many studies, much written, and considerable debate about methods of selecting state Supreme Court justices. Here are some points offered by critics of "merit system."
n It does not take politics out of the process
n It results in lifetime tenure for judges who are rarely removed in retention elections.
n It deprives citizens of their right of franchise.
n Elections serve to educate the public.
n Nominating commissions are not representative of the population, giving disproportionate influence to attorneys.
In my opinion, the criticisms of the merit system themselves lack merit. Let's take these criticisms in succession.
Of course a merit system does not totally take politics out of the process. But it relieves candidates of the most tawdry aspects of politics, that of raising money to campaign for election. You don't have to be a cynic to agree that even if money doesn't buy elections, it certainly influences them. We don't need even the perception that money buys the Supreme Court. And it would be desirable to totally eliminate that possibility.
The necessity of raising money and campaigning eliminates potentially good judicial candidates for the bench. While that holds for the legislative and executive branches as well, that's no reason to have a similar process for the judicial branch of government.
The criticism that appointment rarely results in judicial removal is not a valid point because the same argument holds true with election. If appointed incumbents are rarely defeated, so too, are elected incumbents rarely defeated.
The criticism that elections are the right of citizens and that elections educate the public loses its luster in view of the small turnout for judicial elections, and lack of knowledge that most voters have of the candidates. Proponents of elections for judgeships assume that voters are attentive to judicial matters. That is a stretch, as is the assertion that elections are a forum for education.
What about the alleged disproportionate influence of attorneys with a merit system? Sure, we all like to poke fun at attorneys. But let's give the profession its due. Those in the legal profession are well positioned to assess judicial qualifications. And nominating panels need not be composed exclusively of attorneys.
Yes, political perspectives will likely be a criterion of members of a selection panel. And the governor making the appointment would consider political philosophy of the nominees. But a balanced nominating panel could do the initial screening, narrow the field, and remove the necessity of candidates asking for, and receiving, money from special interests. This would broaden the field of candidates by including those who choose not to go through the brutal process of campaigning.
The abilities to raise money and gain popular support to win a statewide election are not the same abilities that make for a competent Supreme Court Justice.
Recent experience of out-of state money flowing in to influence state Supreme Court elections should raise red flags. Surely, between retired judges, retired and practicing attorneys, and elder statesmen of repute with or without a legal background, nominating panels can be selected to represent the legal judicial, public, and political perspectives thought to be important in determining who should sit on the bench.
The road to changing the process of selection is arduous, requiring amending the state constitution. This requires a majority vote of two sessions of the legislature and approval by the state's voters. It's not likely to happen soon. But the increasing role of money in judicial elections gives one pause.
- John Waelti's column appears every Friday in the Times. He can be reached at jjwaelti1@tds.net.
Is electing Supreme Court justices the best way to fill these important positions?
A state Supreme Court is the ultimate judicial tribunal in the court system of a particular state - in other words, the state's court of last resort. Generally, the state Supreme Court is exclusively for hearing appeals of legal issues - in other words, it holds no trials.
The size of state supreme courts throughout the nation vary; five, seven or nine. Wisconsin has seven. The term lengths range from six to twelve years in most states. Wisconsin has 10-year terms. New York has 14-year terms. Four states have lifetime tenure.
Each state panel of Supreme Court justices is selected according to methods prescribed in that state's constitution. In two states, Virginia and South Carolina, they are elected by the state legislature. In 12 states, the governor appoints them with the consent of another body, usually the state senate.
Six states elect their justices via partisan election. Fifteen states, including Wisconsin, elect their justices through non-partisan election. However, "non-partisan" is usually in name only. It merely means that prospective judges' parties are not printed on the ballot.
Fifteen states use some variant of the so-called "Missouri System." This system, also known as the "merit plan," originated in Missouri in 1940 after some contentious judicial elections heavily influenced by the Pendergast political machine. Under this system, a non-partisan commission reviews candidates for a judicial vacancy. The list of candidates considered best qualified is sent to the governor who selects from the list.
One can never take politics totally out of the selection of justices. But the objective of a merit system is to relieve judicial appointments from the more tawdry aspects of politics and campaigning. Many people believe that candidates for high court should not have to go through the process of raising money and campaigning in the manner of candidates for executive and legislative branches of government. Even the most high-minded, well-intentioned - and let's give the benefit of doubt, successful - efforts of a justice to remain uninfluenced by campaign contributions nevertheless leave the perception of influence peddling.
There have been many studies, much written, and considerable debate about methods of selecting state Supreme Court justices. Here are some points offered by critics of "merit system."
n It does not take politics out of the process
n It results in lifetime tenure for judges who are rarely removed in retention elections.
n It deprives citizens of their right of franchise.
n Elections serve to educate the public.
n Nominating commissions are not representative of the population, giving disproportionate influence to attorneys.
In my opinion, the criticisms of the merit system themselves lack merit. Let's take these criticisms in succession.
Of course a merit system does not totally take politics out of the process. But it relieves candidates of the most tawdry aspects of politics, that of raising money to campaign for election. You don't have to be a cynic to agree that even if money doesn't buy elections, it certainly influences them. We don't need even the perception that money buys the Supreme Court. And it would be desirable to totally eliminate that possibility.
The necessity of raising money and campaigning eliminates potentially good judicial candidates for the bench. While that holds for the legislative and executive branches as well, that's no reason to have a similar process for the judicial branch of government.
The criticism that appointment rarely results in judicial removal is not a valid point because the same argument holds true with election. If appointed incumbents are rarely defeated, so too, are elected incumbents rarely defeated.
The criticism that elections are the right of citizens and that elections educate the public loses its luster in view of the small turnout for judicial elections, and lack of knowledge that most voters have of the candidates. Proponents of elections for judgeships assume that voters are attentive to judicial matters. That is a stretch, as is the assertion that elections are a forum for education.
What about the alleged disproportionate influence of attorneys with a merit system? Sure, we all like to poke fun at attorneys. But let's give the profession its due. Those in the legal profession are well positioned to assess judicial qualifications. And nominating panels need not be composed exclusively of attorneys.
Yes, political perspectives will likely be a criterion of members of a selection panel. And the governor making the appointment would consider political philosophy of the nominees. But a balanced nominating panel could do the initial screening, narrow the field, and remove the necessity of candidates asking for, and receiving, money from special interests. This would broaden the field of candidates by including those who choose not to go through the brutal process of campaigning.
The abilities to raise money and gain popular support to win a statewide election are not the same abilities that make for a competent Supreme Court Justice.
Recent experience of out-of state money flowing in to influence state Supreme Court elections should raise red flags. Surely, between retired judges, retired and practicing attorneys, and elder statesmen of repute with or without a legal background, nominating panels can be selected to represent the legal judicial, public, and political perspectives thought to be important in determining who should sit on the bench.
The road to changing the process of selection is arduous, requiring amending the state constitution. This requires a majority vote of two sessions of the legislature and approval by the state's voters. It's not likely to happen soon. But the increasing role of money in judicial elections gives one pause.
- John Waelti's column appears every Friday in the Times. He can be reached at jjwaelti1@tds.net.
