Tag: Judiciary

The 2009 U.S. Supreme Court decision in Caperton v. A.T. Massey Coal Co. raised the profile of the electoral process by which most state judges, unlike federal judges, are chosen and the significant amounts of money that campaigning for judicial office entails. This Note examines the background behind that decision, and how the justices arrived at their decision, which effectively federalized state judges’ decisions regarding their recusal from cases. It then discusses the process the Michigan Supreme Court undertook to codify its federal counterpart’s holding in Caperton in the Michigan Court Rules. The Analysis section addresses why the court was justified in amending the rules, but also why it fell short of an opportunity to advance and clarify the law. Read More …

There is only one reason why I should be included in the group of distinguished contributors to this symposium on an independent judiciary in Michigan, and that reason is expressed by the old joke that an expert is someone from out of town. I am not an authority on judicial selection. I am not myself a judge. I am not even from Michigan. Nor do I have an opinion about how judges should be selected—at least not one I am going to express in this comment. I am instead an author of books and articles on constitutional and legal history (and on property law, but that is beside the point). To the extent that I have focused on one state, that state has been North Carolina, where I have taught law for over thirty years. Read More …

There is no perfect system for selecting state supreme court justices. My first title for this Article was Two and a Half Cheers for the Appointment System, which eventually became, Two Cheers for the Appointment System, as I recognized that some of my inherent support for the appointment system may have been overly influenced by my support for the federal system and the New Jersey system with which I basically grew up. I can remember, as a new lawyer and law professor, being disappointed when campaign advertisements would appear for judges from other states. I can still recall a commercial where a judge running for office was pictured slamming a jail house door and saying something to the effect that he would be tough on crime. As I analyzed my own arguments in favor of the appointment system while working through the various arguments pro and con I became less sure of my own position. However, the ultimate conclusion of this paper is still that the appointment system—appointment by the governor with advice and consent of the state senate—is a better system than an elective system or the so-called merit or Missouri system. I realize that in light of the opinion of some that position makes me an elitist as opposed to a populist. 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 …

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 …