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MI Conference Series
No. 6  April 18, 2001


Judicial Elections: Past, Present, Future

Introduction
Judicial Elections: A Historical Perspective

  • Mr. Jim Wootton, President, U.S. Chamber Institute for Legal Reform
  • Ms. Judyth Pendell, Director, Center for Legal Policy at the Manhattan Institute

MR. JIM WOOTTON: We have before us today two very distinguished sets of panelists, but no one is more distinguished than Judy Pendell, who is known to many of you as one of the most informed advocates for the reform of our civil justice system. Judy was at Aetna for years, both as the head of a unit and then as the chief of staff to Zoe Baird, who was then general counsel at Aetna. She has been involved in some capacity in the formative stages of almost every civil justice reform group I’m aware of, and she has served on most of their boards as well.

Judy is a graduate of Vassar College and earned her MBA from Yale. She’s brought all her perspective and expertise as a non-lawyer to an area that’s often dominated by lawyers. She will open our session by giving us a history of the election of judges and then she will introduce the rest of the panel.

MS. JUDYTH PENDELL: Thank you, Jim. And welcome to all of our attendees.

Prior to the 19th century most state judges were appointed. Judicial elections came into vogue in the Jacksonian era as part of a wave of democratic populism. Dissatisfaction with the political “untidiness” of elections spawned a reform movement consisting of a mix of nomination and election. In 1940, Missouri implemented the merit selection system, a system whereby judges are appointed through a commission and are then later reinstated through a retention election.

Nationally, the procedures for selecting judges vary considerably from state to state. Eight states have partisan elections. Thirteen states have non-partisan elections. Seventeen states have merit selection through a nominating commission, and four states have gubernatorial or legislative appointments without the involvement of a commission. Nine states have a combination of merit selection and some other method.

Even within states the selection process often differs by court. For example, in New York judges for the Court of Appeals are selected through a nominating commission, serve for 14 years, and then reapply to the nominating commission to compete with other applicants for nomination by the governor. The governor may then reappoint the incumbent or another nominee and the Senate must confirm the appointment. For the Appellate Division of the Supreme Court, the process is merit selection through a nominating commission with an initial term of office of only five years and a subsequent commission review with recommendation for or against reappointment by the governor. The Supreme Court, on the other hand, sits judges through a partisan election for terms of 14 years, while the county courts use partisan elections for ten-year terms.

Empirical research doesn’t clearly demonstrate that a system based in nomination through commission yields a judiciary more competent than an electoral system, but the term “merit” selection is widely used and states continue to gravitate away from elections and toward merit selection models.

Critics of the merit selection process are troubled by: the secrecy that can accompany the work of a commission, the influence exerted by state bar associations, and the separation of powers conflict that is created by the strong role played by governors. Critics of the election process on the other hand express concern over: judicial ties to political parties, the size of the pool of judges considered, and the possible effect of campaign contributions on judicial impartiality or at least the perception of impartiality.

Until recently, partisan elections of judges were characterized overall by low saliency, few issues, little voter or media interest, and modest campaign funding. That has changed with the emergence of high profile election battles in some states, intensifying in the year 2000 in Alabama, Ohio, Mississippi, and Michigan. This has led some observers to question the desirability of judicial elections and ask important questions: Why are we experiencing the growing politicization of judicial elections? Are judges driving these changes or are they victims? Are judicial campaigns affecting judicial decision-making?

Today we will hear from some very distinguished panelists who will discuss these questions, and we will begin that discussion with remarks from a veteran of the November wars.

Following four years on the Michigan Court of Appeals, Justice Young was appointed to the Michigan Supreme Court in 1999 and in 2000 ran for re-election. He prevailed in one of the most difficult campaigns in Michigan judicial history. A graduate of Harvard Law School and Harvard College, Justice Young has served on several advisory groups to the Eastern District of the Michigan Federal Court. He has been active in the Michigan bar, including a term as president of the Michigan Board of Law Examiners. He is also an adjunct professor of law at Wayne State University and has a long and impressive record of public and community service.

I invite you to welcome Justice Young.

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MICS 6 PDF (793 kb)

SUMMARY:
In some states in recent years, judicial elections have become political contests of the first order: high profile, expensive, and acrimonious. As a result, the CLP and the U.S. Chamber of Commerce Institute for Legal Reform convened a conference of state supreme court justices, academics, and representatives from the American Bar Association to discuss the trends fueling this change and the future of judicial elections.  This transcript is essential reading for anyone interested in the growing debate over judicial ideology at both the state and federal levels.

TABLE OF CONTENTS:

Introduction: Judicial Elections: A Historical Perspective

Ms. Judyth Pendell, Director, Center for Legal Policy at the Manhattan Institute

Panel One: Reflections of a Survivor of State Judicial Election Warfare

Justice Robert Young, Michigan Supreme Court

Reactions and Commentary

Panelists:

Mr. Jan Baran (Moderator), Wiley, Rein & Fielding

Justice Clifford Taylor, Michigan Supreme Court

Justice Harold See, Alabama Supreme Court

Mr. Jim Wootton, President, U.S. Chamber Institute for Legal Reform

Mr. Robert Peck, Senior Director of Legal Affairs, American Trial Lawyers Association

Mr. Roger Warren, President, National Center for State Courts

Rebuttal

Justice Robert Young, Michigan Supreme Court

Panel Two: The Future of Judicial Elections

Panelists:

Mr. Thomas Easton (Moderator), Senior Correspondent, The Economist

Mr. Dudley Oldham, Fulbright & Jaworski, Member, ABA Select Committee on the Independence of the Judiciary

Professor Michael DeBow, Professor of Law, Samford University Law School

Professor Clayton Gillette, Professor of Law, New York University Law School

Ms. Deborah Goldberg, Deputy Director, Democracy Center, Brennan Center for Justice

Notes

Sponsored by:
Center for Legal Policy at The Manhattan Institute
U.S. Chamber of Commerce Institute for Legal Reform

 


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