Category: Volume 56 No. 2

In his earlier remarks, Professor Sedler discussed the 1961-62 Constitutional Convention in Michigan. In preparing for today’s program, I reviewed the 2001 recollections of former Judge Robert Danhof, who chaired the Judiciary Article Subcommittee of the Constitutional Convention. Judge Danhof noted that the American Judicature Society testified in favor of the Missouri Plan, or merit selection of judges. Nearly fifty years later, the Society continues to study and promote improvements in judicial selection systems nationwide. Judge Danhof also recalled that there was no great hue or cry for significant judicial selection reform during the Constitutional Convention. At the time, judicial elections were not the high-profile, expensive contests they have become today. While the Constitutional Convention certainly gave very serious consideration to all aspects of the judicial article, Judge Danhof noted that there was no major effort to make constitutional changes in judicial selection methods. Read More …

As one who had spent forty-seven years in public and private education, this appointment presented the opportunity for me to serve the State of Indiana and become acquainted with a totally new world of experiences. I soon realized that the process used in Indiana certainly did not represent the majority of the states in terms of selection of judges for the court of appeals and/or the supreme court. The more I became aware of the issues surrounding appointment verses election of judges, the more intense was my personal inquiry. Read More …

Good afternoon, and thank you. I have the unenviable task of following Justice O’Connor, and having spent most of my professional life trying to live up to her example, I know quite clearly that is not even close to possible. The only area in which I have a chance is that while I did not grow up on a ranch, I married into one. I am quite certain that Justice O’Connor, in her day, was a lot better at moving cattle than I was, but I would bet I have her beat with sheep because we have both sheep and cattle. So, that is my sole claim to fame. Read More …

Good morning, everyone. It is a pleasure to be here and I think the discussion that we have had so far seems to be going very well and I look forward to adding to it. I want to begin with a brief disclaimer. You‟re going to hear me talk today about some of my past experiences working on the North Carolina Judicial Public Funding experiment. I want to be clear that my comments here do not imply an endorsement on behalf of the National Center for State Courts. NCSC is agnostic in terms of which system of judicial selection operates the best. So what you are going to hear from me today and what you are going to detect is a fairly obvious bias towards this kind of reform because I think it works and it works effectively. Read More …

Michigan Supreme Court election campaigns provide a clear illustration of the slash-and-burn combativeness that has come to dominate state supreme court elections across America. What were once quiet, measured and dignified contests have become costly, nasty and destructive to public trust and confidence in the impartiality of state judiciaries. Read More …

One principle that we all hold dear, which is among the rules of law most foundational aspects, is the right to a fair hearing before an impartial arbiter. That right is increasingly in jeopardy. Judicial selection debates often devolve into an exclusive binary discussion pitting judicial elections versus judicial appointment systems. But, the fact of the matter is that only rarely, and only after decades of sustained efforts, do states change their fundamental modes of judicial selection. How rarely? Well, it’s been more than twenty years since any state moved from a system of judicial selection to a system of merit selection. Facing up to that reality means acknowledging two other realities: Elective systems must be improved. Appointive systems must be improved. If we focus on those challenges, then it will be fruitful to also have a parallel election versus appointments discussion. In other words, I submit that we must think small and think big. In terms of thinking small, the rule of law increasingly needs a tourniquet. It may also be a good idea to consider hypothetical far off surgery, but ignoring the more acute harms should not be an option. Read More …

Threats to judicial independence arise when our judiciary becomes intertwined with the political process.

Judicial independence was of the greatest importance to the Framers of our Constitution. One of the main grievances the colonists listed against King George in the Declaration of Independence involved the absence of judicial independence in colonial America. The Declaration of Independence charged the king with “obstruct[ing] the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers [and making] Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.” To safeguard against those abuses, the Framers of our Constitution insured that it provides federal judges with tenure during good behavior, which means they can be impeached for serious misconduct, but not for their judicial decisions. The Constitution also ensures that federal judges receive a salary that cannot be diminished during their term of service. The history of the formation of our judiciary emphasizes a point that is often forgotten in the debate over how we select judges. The Framers of the Constitution saw fit to render our federal judges independent of the political departments so they would not be beholden to the political branches in their interpretation of the law and the rights of our citizens. The Founders knew that there has to be a place free from political pressure and popular opinion, a place where being right is more important than being popular or powerful, where fairness triumphs over strength. In order for judges to dispense law without prejudice, judges need the assurance they will not be subject to political retaliation for their judicial acts and decisions. Read More …