Selection of Judges

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SELECTION OF JUDGES USING RANDOMLY CHOSEN PANELS OF VOTERS

CONTENTS
[...] Introduction
[X] Merit Selection of Judges
[X] Reforming the Present System
[X] A Panel of Voters Appoints a Judge
[X] A Panel of Voters Recommends a Judge
[X] Address

INTRODUCTION
This essay reflects the viewpoint of a member of the voting public. In Ohio, all judges are currently elected by the voters. Also, the election campaigns of judicial candidates are typically supported by a political party. For most voters, casting an informed ballot for a judicial candidate is extremely difficult. It is hard to find good decision-making information. For this reason, there is a continuing interest in finding a better way to select judges in Ohio. In this essay, two selection methods are described. Both methods involve a panel of randomly selected voters. The panel selection procedure would be the same as an open-to-the-public jury draw.

MERIT SELECTION OF JUDGES
In 1987, Ohio voters turned down a constitutional amendment that would have provided for "merit selection" of judges. The merit selection method, that was backed by the Ohio State Bar Association and others, would have removed the voting public from the process of picking Supreme-Court and Appellate-Court judges in Ohio. In the voters' place, a Judicial Nominating Commission, made up of 50 percent lawyers appointed by sitting judges and elected public officials, would have selected three candidates for each judicial office. Then, the Governor would have made a final choice from the three candidates.

One of the strong points of Bar Association's merit-selection proposal was the use of small sets of citizens to make in-depth studies of the candidates for each judicial office---something the typical voter does not have the time to do. As a result, judicial candidates would be evaluated on the basis of their qualifications and reputations, not primarily their money-raising skills and ability to run an election campaign. From the candidates' perspective, the commission-selection process required a much smaller commitment of time and money. There is however, a basic flaw with this judicial appointment method. It may leave the appointed judges beholden to the executive branch of government. This is in conflict with "judicial independence".

REFORMING THE PRESENT SYSTEM
A judicial candidate must, by law, be a lawyer, a person who for years been guided by a moral compass based on the interests of clients. A judge typically renders opinions based on an interpretation of the law and conflicting arguments, not hard engineering data. Thus, a judge, who now has no client, has to use a moral compass based on his/her own value system. This value system may be called a "political philosophy" . This concept was mentioned by Dale Butland in an article titled, "Judges must be judges on political basis", Columbus Dispatch, November, 22, 2002, page A19. A more recent article in the Columbus Dispatch explains how "Courses prepare new judges for bench". (December 12, 2004, pages C1 & C2) In the article, John Meeks, director of the Ohio Judicial College, is quoted as saying, "We're trying to help them transition from strong client advocates to impartial arbiters."

Butland also addressed the funding disparities that sometimes occur in judicial races. He said, "...we should consider public funding of judicial campaigns..." in order to allow "...candidates to compete on a relatively equal footing...". Butland did not explain how giving tax money to candidate campaigns would improve voter decision-making information. Generally, more campaign funds means just more campaign glitter.

Any reform of the present selection method should address several issues.

The traditional independence between the three branches of government---legislative, executive, and judicial---should be protected.
The present conflict of interest created when judicial candidates are supported by political parties should be eliminated.
The conflict of interest associated with raising money for a campaign fund should be eliminated.
Each judicial candidate's political philosophy should be well known to the appointment (or recommending) body.
Each judicial candidate's ability to be fair and objective should be known to the appointment (or recommending) body.

The two judicial selection methods outlined below utilize small study groups of randomly selected voters.

A PANEL OF VOTERS APPOINTS A JUDGE
This selection method would use Judicial Appointment Panels, drawn at random from a list of registered voters. Each judicial seat would have its own one-time Judicial Appointment Panel. This panel (or jury) of perhaps 15 citizens would interview the candidates and anyone else they wished---lawyers, past-trial-jurors, judges, prosecutors, defense attorneys, reporters, court activists, etc.

In Ohio, this reform would require an amendment to the state constitution.

A PANEL OF VOTERS RECOMMENDS A JUDGE
Another possible selection method would be the use of Judicial Recommendation Panels. A Judicial Recommendation Panel, composed of randomly selected registered voters, would interview candidates and other informed persons, the same as under the judicial appointment method. Each Judicial Recommendation Panel (one for each judicial office) would have the option of recommending "none of the above", one candidate, or multiple candidates to the voting public.

In order to be considered for a Judicial Recommendation Panel's endorsement, each applicant must first voluntarily agree not to campaign for the office, regardless of the panel's choice. An endorsement from a panels would be noted on ballots beside the candidates' names. Any qualified person, who chose not appeared before a Judicial Recommendation Panel, would still be free to run a conventional privately-funded election campaign and spend any amount of money.

The success of this proposed selection method would depend on the public's trust of the voter panels. If panel-recommended candidates typically win elections over well-funded political-party-endorsed candidates, the political parties will soon stop wasting their money. And, Judicial Recommendation Panels will, in effect, become Judicial Appointment Panels.

In Ohio, this reform may not require a constitutional amendment. It may be practical to pilot this concept by using Judicial Recommendation Panels to advise the Governor when there is an appointment to vacant seat on the bench.

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