Judicial Selection

Judicial selection is the cornerstone of Modern Courts’ mission.

Indeed, it was the issue upon which the organization was founded in 1955. Among the various methods used around the country to select judges, Modern Courts endorses the system known as a “commission based appointive system” or “merit selection,” and opposes open primaries.

This page explains each judicial selection method, how each has been adapted in New York, and why Modern Courts endorses merit selection. It also outlines Modern Courts’ recent policy statements.

About Judicial Selection

Commentary by Abbe R. Gluck & Victor A. Kovner

The Perils of Electing Judges after the United States Supreme Court’s decision in Citizens United v. Federal Election Commission

Perhaps the glass is not entirely empty, after all. The Supreme Court’s recent decision in Citizens United vs. Federal Election Commission, although widely viewed as a disaster for campaign finance reform, may actually provide a kernel of hope for those concerned about judicial selection.

In the wake of Citizens United, all arguments in favor of electing judges, rather than appointing them through a merit process, obviously require serious reconsideration. This is because the Supreme Court held that the First Amendment prevents government from limiting independent corporate and union campaign expenditures, even expenditures focusing on campaigns of elected judges who preside over corporate and labor cases, and whose campaigns are now widely expected to be inundated especially with corporate money.

This kind of outside interference with judicial elections plainly jeopardizes the independence of much of our state judiciary. Plainly, the sense that judges may be beh old en to financial donors — whether actual or even just perceived — undermines public confidence in our courts.

This decision hits home in New York , the financial capital of the nation — and yet a state where most of our judges are elected. Now, more than ever, the way to preserve the integrity and independence of our judicial system is to stop electing judges and implement a merit appointive system.

For three consecutive years, the Supreme Court has issued opinions that directly affect some of the problems attendant to judicial elections, both nationally and in New York specifically. Yet, reform mostly has been at a standstill.

In 2008, in New York State Board of Elections vs. Lopez Torres, the court reversed the h old ing of two lower federal courts that had concluded that New York ‘s political party-dominated judicial nomination system violated the federal constitutional rights of judicial candidates and state voters.

Last spring, in Caperton vs. A.T. Massey Coal Co., the court held that the U.S. Constitution required the disqualification of a West Virginia Supreme Court judge where the CEO of a company whose case was before that court had spent $3 million (through both a PAC and independent expenditures) in support of his election. The risk of judicial bias was simply too high.

And now, Citizens United. Although the majority opinion opens the door to far more of the kind of corporate influence on elected judges deemed problematic in Caperton, the case also ironically provides a clear invitation to judicial reform. By cutting off a restriction most states had used to restrain, if not eliminate, corporate influence on elected judges, the decision suggests a more sweeping response at least as to judicial elections.

Apart from any restraints on corporate contributions that may be adopted by Congress, it is up to individual states to close the gaping hole the court opened, and amend their state constitutions to end judicial elections. Whatever limits the Citizens United majority held that the federal Constitution imposes on corporate expenditures in judicial elections, nothing in the decision limits state governments from eliminating those elections in the first place.

From the perspective of federal judges — who are appointed by the president and enjoy life tenure — this problem may be somewhat distant. But let us not forget that 98 percent of American litigation occurs in state, not federal, courts; 39 states elect some or all of their judges; and a majority of American judges still run for office.

According to the Brennan Center for Justice, “special-interest groups have increasingly pumped money into these elections,” with contributions to judicial campaigns more than doubling over the past decade.

In New York , roughly 73 percent of full-time judges are elected. The most notable exception of course, is our state’s highest court, the Court of Appeals, whose justices are appointed and confirmed through a merit system. Our intermediate appellate jurists are also appointed, after some independent vetting, albeit from among elected trial judges. It is likely no coincidence that our appellate courts are among the most respected state courts in the nation.

At a minimum, until we have an exclusively appointive system, we need stronger rules that require judges to disqualify themselves from any case involving litigants, including corporations, that have spent a substantial sum directly or indirectly in connection with their elections. According to the New York State Commission to Promote Confidence in Judicial Elections, “nine out of 10 registered voters believe that it is important for a judge to be independent from political party leaders and campaign contributors.”

Former Justice Sandra Day O’Connor, who argued last week that Citizens United creates “a problem for an independent judiciary,” is one of the strongest advocates for ending judicial elections. It is no small detail that she is the only living U.S. Supreme Court justice who also has served as an elected state court judge.

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