Should State Judges be Appointed?
December 15, 2016 § 7 Comments
Phillip Thomas addresses the question of appointed vs. elected judges in a post on his Mississippi Litigation Review and Commentary blog earlier this month. The post was based on a Clarion-Ledger article.
One point of alarm to Mr. Thomas is a survey showing that 50% of judges believed contributions to judicial candidates do influence decisions. As for me, as a state trial judge, I have never been asked to participate in such a survey, or, at least, I have never responded to such a survey if the opportunity were actually presented. So let me say for myself that I do not believe that contributions influence trial court decisions, but I do believe that they certainly do give reasonable people reason to believe that they do. The statistics reported by the Clarion-Ledger bear that out.
One of the many flaws of an elected judiciary is that it forces judges and judicial candidates to have to raise money to run. There is no such thing as a successful election campaign without adequate funds to pay for signs, advertising, and all the other trappings necessary to get one’s name out to the electorate and to energize them to vote. With money comes at least the appearance of influence. Lawyers know and understand that no judicial candidate can solicit or accept contributions directly; that must be done through an independent committee, and the candidate is not supposed to be allowed access to the financial reports. I am confident that the public, however, does not understand this. Some other drawbacks:
- Judicial candidates should only be able to promise to be fair, to be dedicated, and to follow the law. Yet, we hear candidates promising to be tough on crime and criminals, or to be friends of law enforcement, when the job of a judge may demand setting a prisoner loose, or to rule against law enforcement officers. A judge really has no friend other than the law itself when called upon to rule.
- Voters in this part of the world can be swayed to vote against “liberal” judges, and to vote for “conservative” judges without really understanding what those terms imply in practice in our courts. Is a judge “liberal” because he sets aside a clearly erroneous guilty verdict? Or is he doing exactly what the law requires of him? And is she “conservative” because she denies custody to a drug-addicted mother? Or is she doing exactly what the law requires of her?
- PACS have introduced vicious attack ads into our judicial races. Lawyers view them critically and get the misleading and often false accusations. But voters pummeled with attack ad after attack ad often figure that where there’s smoke …
- Our judicial races have become non-partisan in name only. I leave it to you to consider the evidence and draw your own conclusions.
There are other flaws in the judicial election process that you can add for yourself.
So, is the solution to appoint state judges? At first blush, that would appear a viable solution. After all, it works arguably well at the federal level. Life appointment in federal court assures judicial independence. With the advice and consent of the Senate as a check, the federal judiciary remains for the most part balanced. It could possibly work the same way at the state level, but here are some concerns:
- In a one-party system such as we have in Mississippi, the governor pretty much gets to appoint whomever he chooses. A corrupt governor could turn judicial appointments into a cash cow (Note: this statement is purely hypothetical; I am not referring to any past, present, or future governor(s)).
- Favoritism and political affiliation can overrule merit and experience.
- An appointing authority with an agenda can ensure that he or she will have enough votes on the appellate court to enact it. That’s less of an issue at the trial level, but it’s a possibility.
Again, there are other flaws in an appointed system, too.
Some states have tried to neutralize the negatives of appointments by limiting the governor’s appointing authority to a panel of qualified candidates nominated by a blue-ribbon panel. That does not rule out some of the negatives mentioned above.
Other states have tried to strike a medium by providing for initial election or appointment for a term, and then requiring the incumbent to stand for a “retention” election at the conclusion of the term. If the vote is more than 50% to retain, then the incumbent continues in office; if less than 50%, then he or she stands for re-election with likely opposition. An obvious negative is that it replaces one election with two, with all the concomitant equipage of elections.
Still other states have employed variations on the foregoing themes. All have admirable as well as questionable qualities.
Bottom line is that there is no clear-cut, most advantageous approach.
In 1817, when the debate first arose over what form of judicial selection would be most likely to ensure judicial independence and integrity in our Mississippi courts. The decision back then, and in every successive constitutional debate, has been to retain the elected judiciary.
The Better Chancery Practice Blog 
Conceding that no human system is perfect, appointed judges have more appearance of neutrality and objectivity that elected ones. Borrowing from the wisdom of the founding fathers who used competing interests to check the corrupt tendencies of each other, I’ve long wished for an appointment system in which the bar produces the list, governor chooses from the list, senate or legislature as a whole votes on it. Judge is in for life, mandatory retirement at some set age 70 to 74. Even better if the bar is bound by objective, measurable criteria such as relevant experience, how long a lawyer, law articles produced and the like in the creation of the list. Certainly imperfect, especially given how much overlap exists between those three entities in this state, but it does secure independence for the judiciary, which is of primary importance to me.
The dilemma which you point out is born out from Mississippi’s history of judicial selection. Initially the state selected judges to the legislature when it became a state in 1817. In a populist response Mississippi became the first state to elect its judges in 1832. After the Civil War Mississippi begin selecting judges by Governor nomination and legislative approval in 1868. Mississippi returned to elected judges in 1910. See:
http://www.judicialselection.us/judicial_selection/index.cfm?state=MS
Money, power and politics occasionally intrude into the courtrooms. More recently big money has changed statewide judicial elections. Campaign donations can also be made to those who appointed nominate as well. Is that money being given to improve our judicial system or to obtain a particular result? This is why clients and colleagues ask about outside influences affecting a judge and what might influence them. Its hard to be objective with those outside influences and I had a chancellor once tell me half in jest that; “attorneys want a ‘fair advantage.'” We hope for someone who is prepared, will listen and apply the law as best he/she can. It is easier to explain that to your clients. It is difficult to challenge authority with an agenda.
Thanks for setting me straight on the history of judicial selection in Mississippi.
I credit Professor David Sansing, One Ole’s Miss’s beloved history professors who had the most colorful stories of our colorful State.
Interesting. Two comments that fairly well crystallize the two opposite poles of this question. Thank you, gentlemen.
In states that model the federal approach, a person has to convince more than just the governor that he is qualified. In Maine, where judges are appointed for seven year terms, persons seeking appointment file with the Governor’s Selection Committee which makes a recommendation to the Governor. The Governor nominates someone, who is then confirmed by the Maine Senate. As with the federal process, a Senate committee sends the appointment to the full Senate with a recommendation. Attorneys and the public can (and frequently do) speak for or against the nomination. Almost all of the discussion is in fact about whether the nominee is qualified, unlike in elections where much of the discussion seems to be about the ability to raise money and pandering to public perceptions rather than actual qualifications.
There is no way to remove politics from the judicial selection process, but having seen both methods in operation, (Maine elects probate judges, but I’m mainly referring to the election process in Mississippi,) I do not see many advantages to the system of electing judges.
I always enjoy reading your comments. All attorneys should be informed of the valuable information you provide.
I believe we should keep electing judges rather than appointing judges. Unfortunately, politics is involved in electing and appointing judges. The only difference is that with judicial appointment, the number of people who need to be influenced is reduced to one person. We have seen excellent appointments and appointments where “[f]avoritism and political affiliation can [and did] overrule merit and experience.”
You stated “[s]ome states have tried to neutralize the negatives of appointments by limiting the governor’s appointing authority to a panel of qualified candidates nominated by a blue-ribbon panel.” That doesn’t eliminate politics from the selection because (a) if the governor appoints the “blue-ribbon” panel, he/she can ensure his/her “blue-ribbon” panel includes the governor’s choice and (b) if the governor does NOT appoint the “blue-ribbon” panel, politics is still involved in appointing the “blue-ribbon” panel. What criteria is used to decide if someone is qualified to be a “blue-ribbon” panel member?
You stated “the candidate is not supposed to be allowed access to the financial reports.” I have heard that phrase numerous times, but there is no provision in the Code of Judicial Conduct that requires that the judicial candidate be prohibited access to financial reports. The financial reports are public record. Limiting the maximum campaign contribution is a great idea, but we have seen judicial campaigns where the maximum contribution is ignored by a group simply attacking a judge without naming the judge’s opponent. Hopefully, most voters will recognize that it is obviously an attempt to elect the judge’s opponent by negative advertising.
Politics can be disgusting during a judicial election (particularly when a candidate lies) and unfortunately, some voters will vote without researching the candidates. In a perfect world, voters would review campaign contributions and the truth behind all campaign advertising. There is no perfect solution, but I choose to appear before a judge who had to convince the voters that he/she was the most qualified rather than a judge who had to convince only one person that he/she was the most qualified.