By Marshal Willick
“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.”
— Caroline Kennedy
“What is it that makes us trust our judges? Their independence in office and manner of appointment.”
— John Marshall, fourth Chief Justice of the U.S. Supreme Court
The impetus for a push to change from elections to a merit selection system for judges stems from a speech by a justice of the Nevada Supreme Court. It has since been a topic of discussion in various bar section meetings, ultimately resulting in the formation of a small committee of members of the Appellate Section to study the issue and propose legislation. The committee reviewed extensive materials — including the full history of judicial selection here in Nevada, as well as all available model provisions, reports, and studies of judicial retention and evaluation programs throughout the country — and concluded that there are compelling reasons for preferring judicial appointment rather than election.
Among the materials reviewed was the Brennan Center for Justice report “Choosing State Judges: A Plan for Reform,” which provided a detailed and well-supported study of the inevitable conflicts and corrupting influences on judicial elections created whenever judges are required to raise money and seek favorable publicity. The report noted that “electoral pressures create a morass of conflicts of interest that threaten the appearance, and reality, of fair decision-making.” Other studies have shown that elected judges take into account voter and donor preferences when deciding cases even if they try not to do so. As one retired Alabama Supreme Court justice said, “Judges would have to be saints to ignore the political reality. And judges aren’t saints.”
The conclusion of the Brennan report urged the states to “take the politics out” of the judicial selection and reselection process either by having justices serve a single, very long term, or “vesting an independent commission with the power to make reappointments.” The Nevada committee chose the latter approach, further detailed below.
The Legislature missed an opportunity to put beneficial reforms into motion in 2019. There are parts of the committee’s proposal that can and should be implemented immediately, and the remainder of the merit selection system should be passed in 2021, leading to a public vote.
Despite the advantages of an appointment/retention system, Nevada has repeatedly failed to adopt such a system, rejecting various proposals in the Legislature or popular vote in 1972, 1988, 1995, 2010, and 2015. The 1995 and 2010 proposals would have created a hybrid system of merit selection appointments plus retention elections, sometimes called the “Missouri Plan.” The latter proposal included a term calling for 55 percent voter approval required in the retention elections, and added a provision for periodic judicial performance evaluations.
The 55 percent margin requirement was criticized by several sitting judges, in part because of Nevada’s statutorily-required “None of the Above” ballot option, plus the fact that judges are usually unknown to the electorate, meant that many qualified judges would probably be removed by default, essentially without cause. (Our None of the Above option in statewide elections would only affect Supreme Court races.)
The 2015 measure, which died in the Legislature, would have expanded judicial terms to eight years, eliminated both elections and any participation by the governor, and required both appointments and re-appointments to be made by the Assembly.
Given the inherent corrupting effect of judicial elections, it is somewhat ironic that judicial elections were originally implemented in the 19th century as a reform to address corruption. In the earliest days of the United States, judges were often picked by those in power as a matter of patronage and political spoils, and elections were seen as a way of removing the judiciary from the political branches of government.
But the effects have been awful, and are getting worse. As of 2017, 20 states had at least one justice on their Supreme Court who had been involved in an election campaign costing more than a million dollars, and during the 2015-2016 election cycle, more justices were elected in $1 million-plus elections than ever before. Outside spending by special interest groups – most of which do not disclose their donors – also shattered previous records during that cycle.
Virtually everyone involved in the system reports, unsurprisingly, that campaign cash affects judicial decisions. A 2001 survey of state court judges revealed that about half were sure that campaign contributions had at least some impact on court rulings. One judge remarked: “It’s pretty hard in big-money races not to take care of your friends. It’s very hard not to dance with the one who brung you.” Studies show that the influence of campaign money disappears from the statistics when judges are no longer eligible for re-election.
It is certainly an issue in Nevada appellate litigation. A 2010 American Judicature Society study found that in 60 percent of the 2008-2009 Nevada civil cases, at least one of the litigants, attorneys, or firms involved in the case had contributed to the campaign of at least one justice. And it’s not just civil cases. A study by The American Constitution Society found a direct correlation between an increase in television ads and a reluctance by appellate judges to vote in favor of criminal defendants. Judges facing election challenges wish to avoid appearing to be “soft on crime” and subject to attack in the media.
A judge’s job is to apply the law fairly and protect all people’s rights, even when doing so is unpopular or angers the wealthy and powerful. But the reality of competing in costly, and highly politicized elections are directly at odds with that role. If a judge rules against a major donor, that donor may not contribute to the next campaign. If a decision angers a powerful political interest, the next cycle may involve an avalanche of attack ads. These electoral pressures are inherently corrupting. Left unchecked, they undermine the integrity of state supreme courts and the public trust that undergirds their legitimacy, with acute implications for American justice.
And the corrupting influences are evident quite close to home. One particularly vile Nevada organization funds the lifestyle of its leader by soliciting “donations” and “advertising” from judicial incumbents and candidates – to the tune of over $100,000 over the past few years – by implicitly threatening to launch internet smear and defamation campaigns against those who do not “contribute.”
The Nevada committee’s goal was and is to design a system where judges never have to ask lawyers or anyone else for money, do not have to campaign or be concerned about political or other pressure, and can concentrate on doing their jobs without concern for anything but how well they do those jobs.
Retention elections are not a solution
Adopting a system of initial appointment followed by retention elections has appeal on its face, but has proven to be problematic in all respects. Multiple studies in the literature studied by the committee detailed how facing retention elections leads to exactly the same kind of pressures as initial elections.
The Brennan report catalogued many cases in which special interests upset with particular opinions mounted campaigns targeting judges who had decided controversial issues, leading to precisely the sort of “conflicts and corrupting influence” that the appointment process is meant to prevent. One California justice said that deciding controversial cases under the shadow of a future election is like “finding a crocodile in your bathtub when you go in to shave in the morning: you know it’s there, and you try not to think about it, but it’s hard to think about much else while you’re shaving.”
Probably the best evidence of the superiority of a merit selection system without elections, as opposed to such electoral systems, can be seen in the criticism of those who try to undermine merit selection systems, usually under the rubric of “addressing activist judges” and trying to “bring the judiciary under political control.” In other words, those who oppose merit selection usually have something to gain from the political pressures endemic to the election system.
The 2019 proposal
The committee’s proposal took to heart the research indicating that appointment systems can be effective in “insulating judges from political and special-interest” pressure and influence. Many studies stress that for an appointment process to work both practically and ethically, it must have meaningful public oversight with diverse appointing authorities, a clear and open application process, and checks and balances. For such a process to succeed, it must minimize opportunities for political self-dealing and special interest influence in order to promote fair, independent, and diverse courts, and public confidence in those courts. The 2019 proposal addresses all those goals.
Nevada already has two important judicial commissions: one for judicial appointments when there is a vacancy (more on that below), and the other for judicial discipline (handling complaints about judicial officers). The proposal is to make the judicial appointment commission a standing 17-member body, and create a new 17-member Commission for judicial performance evaluations.
With an eye to history nationally, the proposal consciously avoids the dangers of concentrating the power over judicial reappointments in any single body in which favoritism could then be created by diffusing the power of appointments to the two commissions among both houses of the Legislature, the Supreme Court, and the State Bar, in addition to the governor. It should be effectively impossible for any person or group to exercise undue influence over all those bodies.
Initially, all judges would be selected essentially the way vacancies are now filled (commission selection of three finalists and appointment by the governor). Judges would be periodically evaluated on the basis of multiple factors, including their knowledge, communication skills, temperament, and work ethic – but explicitly not on the popularity of their decisions or any political considerations.
Those judges who obtain a 75 percent “super-majority” approval by the performance evaluation commission are automatically reappointed (to a maximum of four 6-year terms); those who fail to achieve at least a 50 percent approval are not eligible for re-appointment at all; and those who fall between those approval ratings can choose to apply for reappointment.
The final 2019 draft of the recommendation can be viewed here and was labeled Assembly Joint Resolution (AJR) 9. The proposal was heard in the Assembly Legislative Operations and Elections Committee during the 2019 legislative session, but never proceeded to the floor. (Some think the 2019 proposal should be refined slightly by moving the governor’s two appointments to the initial screening commission and allocating one more to each house of the Legislature. The governor would retain the ultimate choice-of-three, a better allocation of responsibility.)
Judging is a job that should be obtained by meritocracy, not popularity. A standing Judicial Performance Commission, tasked with ongoing monitoring of judicial performance, should conduct a much more thorough – and inherently “fairer” – review than uninformed elections or a bi-annual voluntary survey of lawyers. A great deal of attention was given to creating as corruption-resistant a system as can be devised.
Merit selection is what we already do (half the time)
The reality is that merit selection is already in common, but not universal, practice in Nevada, and it works well. In Clark County – the most populous county – there are currently 52 district court judges (32 civil/criminal division, and 20 family division). Of those, 23 were originally appointed.
The main difference between the two selection processes is that those seeking appointment must complete a thorough application and undergo a rigorous background check and intense interviews by the judiciary, lawyers, and lay members, while those seeking election hand over a filing fee and put up posters.
The appointment process filters out those who are more likely to be problematic in terms of ability or temperament. A brief review of recent scandals leading to the removal or resignation of District Court judges indicate that all of the disgraced judges were elected, rather than appointed.
This is not “news,” but a longstanding reality. Back in 2010, a Las Vegas Review-Journal article said that surveyed lawyers reported that about 10 percent of the sitting judges were so deficient that they should not remain on the bench. The best way to lower that number would be to make sure dysfunctional judges are not seated to begin with.
Knee-jerk opposition and why it’s hogwash
Every time merit selection is proposed, and even at the one legislative hearing where the 2019 proposal was made, there was the immediate reactionary reflex that “the elites” are trying to “take away the people’s right to vote.” Most of those so claiming have no clue who any judicial candidates are — nor what their qualifications for the job might be.
In reality, the current system repeatedly leaves judges running unopposed – giving the people no vote or input, and with no significant ongoing review of judicial performance; the newspapers regularly report that few sitting judges face challengers.
Some of those opposing merit selection have their own agendas and interests having nothing to do with the quality of the judiciary. Those that profit off of running (or threatening) campaigns for or against judges are mainly interested in money.
What should be done right now
Nevada blew the opportunity to start making judicial selection smarter as of 2019. Those in the Legislature, or who know a legislator, should do what they can to make sure a proposal to implement merit selection is ready to introduce at the very start of the session of 2021. Meantime, there are steps that can and should be taken to demonstrate why this is a good plan.
The best single move that could be made in the absence of legislation is to set up a Judicial Evaluation Commission. Ideally, this is something that could be created (and funded) out of existing judicial structures (and budgets).
Yes, it will have a bark, but no bite – set up as an administrative function of the judiciary, it will be able to announce its findings, but that information will simply be given to the voting public. That situation, however, would still be a huge improvement over the current near-lack of meaningful information in judicial races. If it works as intended, it will address the kind of complaints relating to the alleged lack of review of judicial action and behavior, and displace the need for the sometimes-maligned “Judging the Judges” surveys.
Developing appropriate metrics and formats for meaningfully reviewing judicial “performance” is likely to take time, and there will be two further sets of judicial elections before a merit selection system can get through two sessions of the Legislature and a vote by the public, as is necessary for enactment. (Constitutional amendments may be proposed in either house of the Legislature. Amendments proposed by the Legislature must be approved by a majority of the members of both houses in two consecutive regular sessions. The amendment must then be ratified by a majority of voters.)
The time to start that work is now – we might end up electing judges a bit more intelligently in the meantime, and if the information is useful, it will demonstrate the utility of the performance evaluations.
During this interim period, consideration should be given to whether the role of such a commission could or should be expanded, while elections remain in place, and to do what the American Bar Association does at the federal level – issue a “Well Qualified,” “Qualified,” or “Not Qualified” review of candidates for judicial office as part of service to the public. The process would be much like that now conducted by the Judicial Selection Commission, and might displace some of the “pay-to-play” endorsement organizations now in place that inherently corrupt the process.
If, as is likely, the public follows the recommendations given in the elections between now and the vote on enacting a full merit selection system, the ongoing existence of the Performance Commission could be used as an argument for the conversion to the merit/appointment system.
Eliminating judicial elections would remove money and campaigning from the job of being a judge, go a long way toward minimizing certain corrupting influences, and greatly improve the quality of time spent by those on the bench as well. Those appointed could simply “be” judges, rather than “running for judge.”
Merit selection will probably involve lawyers being more directly involved in examining, vetting, and nominating judges. This is not a bad thing. As put with far more eloquence than I have exhibited here quite a long time ago:
“I cannot believe that a republic could subsist at the present time if the influence of lawyers in public business did not increase in proportion to the power of the people.”
—Alexis de Tocqueville, Democracy in America, 1835-1840.
Those fixated on ensuring that “the people” select judges at the first instance – no matter how uninformed that selection – unwisely elevate process over product. Most people tend to be concerned with judicial ability and integrity only when their fortune, their freedom, or their family rests in the discretion of a judge, at which time it is much too late.
Justice is too important to be left to the largely random selection of the current election process. It can and should be made much smarter, and that is best achieved by creating a system of judicial selection by merit.
Marshal S. Willick, Esq. is the principal of the Willick Law Group, a Las Vegas family law firm. He can be reached at [email protected]