Rethinking Judicial Nominating Commissions: Independence, Accountability, and Public Support
53 Pages Posted: 6 Jun 2007
Clearly, there is no one best way to select judges. Any judicial selection system has both strengths and weaknesses. State judges in the United States may take the bench via election or appointment, but most judges, even those in states utilizing judicial elections, originally take the bench through appointment. Appointment, obviously, is the quickest and most efficient way to fill a judicial vacancy.
This paper focuses on one of the pillars of the appointive process, the judicial nominating commission. It suggests that all jurisdictions should have judicial appointment commissions.
The task in a good judicial selection system is not simply to fill vacancies, but to select the best candidates for judicial positions. To accomplish this purpose through the use of a nominating commission scheme, we should strive to develop the ideal judicial nominating commission system. I suggest that such a system should possess (at least) three principal features: It should adhere to democratic ideals; it should maintain as much independence as reasonably possible; and it should enjoy public acceptance and support. Additionally, local conditions and requirements must be considered in designing any commission scheme. Almost needless to say, these features and considerations conflict to some extent. Because of the tension between them, they greatly complicate efforts to design an ideal commission. Despite these difficulties, we should not compromise on the principal features of an ideal scheme any more than necessary to reach the best possible balance.
A delicate balancing of democratic ideals and independence will garner public support for a judicial nominating commission without the need to over compromise any of these core principles.
Political elites should not control judicial appointments, and proper use of a nominating commission approach reduce the concentration of power in political officeholders by spreading the nomination and appointing powers. As the article explains, commission independence enhances both democratic ideals and judicial independence. Commission independence encompasses both external and internal independence, which includes external and internal capture. In sum, the spread of power among a more representative group not only is more democratic, but it can also create a significant degree of independence. Moreover, as noted, judicial appointment commissions must have the confidence and support of the public which it serves. The article also discusses how a commission can garner public support.
Designing the appropriate appointments commission paradigm is not an easy task, but with proper attention to detail, such impediments as commission capture can be eliminated or reduced.
Judicial nominating commissions are the most worthy, arguably critical, components of the judicial selection process even in jurisdictions that elect their judges. Nominating commissions, though, are only as good as their organization, members, and procedures permit. This article raises, then addresses, a number of the most challenging issues in developing an appropriate judicial nominating system.
Keywords: appellate, court, judge, appointment, circuit judge, commission capture, commissioner, district judge, judicial appointment, judicial appointments commission, judicial election, judicial nominating commission, judicial nomination, judicial selection, Republican Party of Minnesota v. White, trial
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