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Selecting Judge: Hurculean Task

Written by: Aditi Sambhar,3rd year law student Jamai Millia Islamia
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The method by which judges are selected has become a matter of considerable concern for the citizens of our state. Although judicial elections may always has been important and vital process," the selection process is now coming under particular scrutiny. Some believe that although imperfect, the process in place works well enough to need only minor adjustments; others claim that a major overhaul, even scrapping, of the system is necessary. Certainly attention to the issue is warranted: "judicial elections] are all threatened by the spread and deepening of problems that, if left unattended, will erode the public's confidence in our judiciary."

Part I. Background

Judges and the Court System

Judges are the heart of the court system. The personality and character of a judge have much to do with the quality of justice in a specific court, since judges have considerable discretion in setting bail, in creating a compassionate or punitive atmosphere in a courtroom, and in sentencing.

The courts employ an adversary system, which assumes that two sides arguing different points of view will establish the facts of a case. The judge, who is impartial, interprets the law. The jury, when one is used, decides what the facts of the case are. The court system is a hierarchy that is administered from the top level down. If one side or the other wishes to carry a dispute beyond the point of entry and has grounds for doing so, it may appeal to a higher level. Basically, the courts decide two kinds of cases, Civil and criminal. District courts are seeing an increase in the number of criminal cases.

Qualities of a Good Judge

The qualities citizens seek in a judge are essentially competence, fairness, and conscientiousness. Judicial nominating commissions typically pay attention to the following criteria when they evaluate applicants for judicial office: "integrity and moral courage, legal ability and experience, intelligence and wisdom, and a determination whether a candidate would be deliberate and fair minded in reaching decisions, whether the candidate would be prompt and industrious in performing judicial duties, whether the candidate's personal habits and outside activities are compatible with judicial office, and whether the candidate would be courteous and considerate on the bench."

How Judges Are Selected

The Constitution and state statutes set up system for appointing and electing judges. The state Constitution provides that judges must be "learned in the law," which the state Supreme Court interprets to mean currently licensed to practice law in. It also provides that judges "shall be elected by the voters from the area in which they are to serve," but it permits the governor to fill midterm vacancies by appointment. Judicial elections in are nonpartisan, and they are held in conjunction with those for other county, state, and federal offices. District court judges are elected for six-year terms by voters within their judicial district; Supreme Court justices and judges of the Court of Appeals are elected statewide for six-year terms. Any major change to the present system would require a constitutional amendment.Most sitting judges leave the bench before their terms have expired, which gives the governor the opportunity to appoint a successor. Most judges in therefore, reach their position by appointment.

How a Judge's Performance is Evaluated

A formal method for evaluating a judge's job performance (aside from voters' ballots in judicial elections) is a relatively new idea, but it is becoming more popular. There were two failed attempts to adopt an evaluation method by separate groups of lawyers and judges in 1988; the Supreme Court established a pilot evaluation program in 1990. Twelve district court judges and two appellate judges were evaluated, and final recommendations were issued in February, 1993. Funding has been a concern, as has confidentiality. In January, 1996, the Chief Justice of the Supreme Court issued an order protecting the confidentiality of
information about participants in any judicial evaluation program. As of February, 1998, all judicial districts except the Third District have made a commitment to conduct judicial evaluations. All the district programs implemented so far are intended to improve the judges' job performance. Plans vary, but all try to prevent the possibility that an individual evaluation could be identified by the responses.

Suggestions for Improving the Judicial Selection System

1. The Present System of Nonpartisan Elections: Moderate Reform Those who favor retaining as present system over whelming turn to voter education as the primary means of reform. It is worth pointing out that no concerted efforts at public education concerning judicial elections in a have thus far been attempted by any public group to help voters participate intelligently in judicial elections. Voters need far more information about the candidates than has typically been available. It was felt that the media have a responsibility to serve the public by educating voters, and that they should strengthen their efforts to seek out information useful to voters as well as generally to make the judiciary more present in the lives of citizens. The numerous interesting and useful topics about which judicial candidates can speak would offer good information to voters. The media could render a major service by educating the public as to the qualities of a good judge and the dangers of single-issue voting.

In order to improve the quality of candidates running for judicial office, it was suggested that they be required not just to be "learned in the law," but to have a minimum level of experience in the practice of the law--five years after licensure, for example--including experience in a courtroom.

2 Fundamental Change: hose who favor more fundamental changes to the current system often speak of making the system more "honest." There are two sharply opposing views as to how to do this. The first bases itself on the claim that judicial elections in Ana are meaningless, that voters don't really choose judges in Ana. This would be solved by the creation of a more purely elective system. Judges would be voted for or against like legislators and, like legislators, would be directly accountable to the voters.The second would move towards a merit selection plan on the basis that it best preserves the independence of the judiciary. Since the current system already relies on gubernator Finally, some reformers proposed scrapping elections entirely, replacing them with an appointment system modeled on the federal selection process.

Questions to Consider

Require that all judicial candidates have at least five years experience as a practicing attorney?

a. Eliminate incumbency designation on judicial ballot?
b. Require state government to publish voter information on judicial candidates?
c. Provide public financing for judicial elections?
d. Allow judicial candidates to accept endorsements from political parties?
e. Create an agency or commission to conduct evaluations of judges job performance?
f. Require the governor to appoint judges from among the nominating commission nominees?
g. Increase public access to proceedings of the Board of judicial Standards with legislative confirmation?

The AJS established a Judicial Elections Project to address the problem of how to achieve electoral accountability of judges while preserving the independence, impartiality, and dignity of the winning candidates. The monograph, Electing Justice: The Law and Ethics of judicial Election Campaigns (1990), suggests how the system may be improved, with specific recommendations to improve judicial campaign financing and conduct.

Indian Judicature Society (is) IJS also has a position supporting merit selection (with a system of appointments and retention elections) as a replacement for partisan and nonpartisan election of judges. They also have an interest in assuring integrity, independence, and ability in the judiciary, however they are selected
Citizens for Independent Courts.

This is a project of the Century Foundation with a goal of preserving the independence of state and federal courts. Co-chairs are former Congressman Mickey Edwards (R-OK) and Lloyd N. Cutler, White House Counsel for Presidents Carter and Clinton. The committee is a broad-based, nonpartisan group of 88 members. Among the areas of concern are threats to the tenure of judges in reaction to isolated decisions, the financing of state judicial campaigns, and the politicization of the judiciary through undue influence of other branches of government and political organization.

American Bar Association, an Independent Judiciary (Report of the Commission on Separation of Powers and Judicial Independence), Washington, D.C. (1997).
Daniel R. Dena, "How Judges Are Selected: A Survey of the Judicial
Selection Process in the United States," Michigan Bar Journal (September,1996) pp. 904-909.
Rebecca Fanning, "I'll See You in Court: A Consumer Guide to the Ana Court System" (January 1997)...
Patrick M. McFadden, Electing Justice: The Law and Ethics of judicial Election Campaigns, American Judicature Society, Chicago (1990).

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