Election or Appointment of Appellate Court Judges?

Appellate judges are appointed in some states, elected in others, and both in still others. The following discussion analyzes which system produces better appellate court judges.

Date sent: Fri, 10 Oct 97

We are now celebrating the 150th aniversary of the New York Court of Appeals whose jurisdiction (except in a few very rare cases) is limited to appeals from the Appellate Divisions of the New York Supreme Court.

To the best of my knowlenge, the Appellate Division is about 200 years old. The Appellate Divsion consists of justices appointed from the ranks of elected Justices of the Supreme Court (mostly a trial court). The Supreme Court is over 300 years old.

For aproximately the first fifty years of the State of New York decisions of the Appellate Division were appealable to the New York Senate. Around 1840, something called the Commission on appeals was created with jurisdiction to hear appeals from the Appellate Division. In or about 1847 a Court of Appeals was created consisting of four elected judges and four Justices of the Appellate Division (one from each geographical Judicial Department). This was later changed to seven elected judges only, and finally to seven appointed judges only.

In the days when the seven judges were elected the Court of Appeals was regarded as the most prestigious State court in the country. Appointment as opposed to election does not automatically improve the judiciary.

Date sent: Tue, 21 Oct 97

All Washington State judges are elected, but the governor fills vacancies by appointment. Appointed judges must stand at the next general election, held in November each year. It is generally thought that the judges who were appointed first are a better group than the judges who were elected. (I am hardly an impartial observer here, having been appointed to the Washington State Court of Appeals, only to lose the election.) Our governors have generally careful to consider merit in making appointments and we have had few openly political appointments. But having stood for election, my conclusion is that election is important to maintain public confidence in the judiciary in general. Voters puzzle over judicial elections and don't know exactly who to vote for, but I concluded that it is more important that the public maintain control over the courts than that the "best" candidates (whatever that might mean) are selected to serve on the courts. As an observer of the 1889 Washington constitutional convention is reported to have said, "the courts of this territory are too important to have better judges thrust upon the people than they want", or words to that effect.

I am curious about opinions from other jurisdictions. Do you favor election, appointment, a merit system, or some other system, and why? Which produces the best judges?

Date sent: Tue, 21 Oct 97

In New York, we have avery complex judiciary. Some are appointed but most are elected. Many, if not most, of the elected judges are elected in situations in which the political parties have made deals for cross-nominations are in judicial districts in which one party has overwhelming dominance. The great contested judicial elections have been for the Court of Appeals. These elections produces Cardozo, Hand, Fuld, Van Voorhes, Breitel, etc. More recently we went to a system (for the Court of Appeals only) in which a panel presents three names to the Governor and he appoints one. It has not produced the same quality of Judges that the elective system did. In the future, it may be that a tradition will arise in which the governor will begin to think of these appointments much like the President thinks of his appointments to the US Supreme Court and we will get very good and very bad judges.

Date sent: Wed, 22 Oct 97

In Missouri, judges are selected by one of two methods: election; and the so-called "Missouri system." Most counties elect trial court judges. The rest of the judges, including the judges of the three courts of appeals and the justices of the supreme court, are appointed by the Governor. The trial court judges selected in this way are mainly in urban areas where election fraud, etc., was a problem in the time of the political machines.

However, the Governor does not have every lawyer in the state from whom to choose. Rather, nominees must be screened by a judicial selection commission composed of lawyers from the jurisdiction who themselves have been by all lawyers in the area. The commission presents the Governor with a panel of three names from which to choose. The Governor may either choose one, or reject the entire panel, whereupon the entire process begins anew.

Once appointed, judges must face a retention vote in the next general election and again every 6 years thereafter until mandatory retirement or resignation. In a retention vote, the voters cast "yea" or "nay" votes; the judge does not face an opponent. If a majority vote "nay," as has happened a couple of times in the last few years, the judge is removed from office and a new judge appointed.

Most lawyers I know feel this method works quite well. It is hard to judge which perform better; there are good and bad in each group. In general, the quality of appointed judges seems to be higher than elected. In addition, it does avoid the unseemly spectacle of a judge stumping for votes. It also depoliticizes the process to a large extent, resulting in Republican governors appointing Democrat judges and vice versa, although a recent Republican governor appointed a crony who had never been in a courtroom to the Supreme Court a few years ago.

Date sent: Tue, 21 Oct 97

An individual perspective from Hawaii: our judges have always been appointed, but only in recent years has the process been formalized to go through a Judicial Selection Commission whose members are a combination of public figures appointed by the Governor and lawyers elected by the State Bar. The Commission sends the Governor a list of six recommended candidates for each judgeship, the Governor selects one and that one goes through a hearing at the State Senate with public comment. While the Governor's nominees are almost always approved, a few have not been, including a few whose appointments were considered and treated politically. Generally, the appointments since the institution of the Judicial Selection Commission have been better than without it, although we still get some people appointed who are not very well qualified, and we still get some much better qualified people passed over, quite apparently for political reasons. But then, elections are political, too, and tend toward public popularity contests rather than merit-based elections. But what else is new?

Overall, based on our experience here and comparison to elected judges in my original home state of Wisconsin, selection by appointment appears preferable to the extent that the selection process can be effectively directed by as neutral a panel of evaluating and recommending commissioners as possible. Ours doesn't always achieve that, but probably does so better than most elected systems, and results in a pretty good cross section of ages, ethnic groups, genders and backgrounds in our judges.

We also have a Judicial Performance Committee, which includes lawyers and members of the public, appointed by the Chief Justice of the Supreme Court. Evaluation forms are given to lead counsel at the ends of some trials and are anonymously recorded. The information is provided to the Chief Justice for whatever action he deems appropriate in working with the judges under him, and he provides edited, unidentified summaries to the Committee for review and fine-tuning of the evaluation program itself, but not for them to evaluate judges. The ratings have generally averaged above 4.0 on a scale of 1 to 5, and the rating form and categories are similar to those used in New Jersey and some other states. Overall, the program has tended to have very little effect, and has just provided backup for the judiciary's position that criticism of judges by lawyers and the public is
ill-founded. Although we have a few judges whose qualifications are weak and that is widely known in the legal community, it appears that the trial attorneys may not completely trust the anonymity and confidentiality of the evaluation form responses, and may not opt for complete candor in their evaluation form responses. Not sure how that problem could be solved, as the protections for anonymity are quite good in this program. Hope this is of some use and interest in your survey of election vs. appointment of judges in various jurisdictions.

Date sent: Wed, 22 Oct 97

I must say I'm very dissapointed with the two ways of selecting judges used in Alabama. Elections have gotten EXTREMELY ugly in the last five years, including personal attacks on the teenage daughter of one of the state Supreme Court candidates in the last election. I think that backfired, and the father of the girl won, but that's just ridiculous. However, I can see how people get fed up with the feds, too. We've got one district court judge who is not even close to being fair and even-handed, and he'd probably be the first to admit it. Everyone knows he's going to pick one side or the other before trial begins. If it's yours, you sit back and do nothing. He'll make the objections--and of course sustain them--for you. He'll question the witnesses, step on the other side's lawyers, whatever it takes. You'll win at least 90% of the time, probably more. Of course, if you're not the lucky side, well, time to get out the checkbook.

I'd be interested in hearing from someone where the "Missouri" system or some other method is being tried.

Date sent: Wed, 22 Oct 97

While elected judges have many advantages, the objection that it is unseemly for judges to stump for votes has much merit.

Sol Wachtler, later Chief Judge of the Court of Appeals before his criminal conviction, ran once for one of his lower court positions with a television ad featuring a clanging jail door to emphasize his supposed toughness on crime.

A Judge of the New York County Surrogate's Court (admitedly not an appellate position) won her primary with a radio ad that started with machine gun fire and went on the explain that while Arab Palestenian terrorists were killing people, estates under the supervision of the Surrogate's Court were making deposits in banks that did business with Arabs. The ad did not, of course, inform people that the Court has no power to tell an Executor or Trustee which bank to use.

On the other hand, when the legal profesion was smaller and more dignified, and the defintion of professionalism more restrictive, we had judicial campaigns without these unseemly spectacles.

Date sent: Wed, 22 Oct 97

Believe me guys, you haven't seen ugly until you've seen the kind of negative campaigning we've had here in Alabama the last couple of election cycles. I'm sorry for any of you if the contestants have sunk as low in your state as they have in mine. As I mentioned earlier, we had one guy attacking the other guy's teenage daughter. That's inexcusable, and I know they lost votes on that one. But the election before, we had the Democrat running ads of a tearful interview with a man whose daughter had been murdered by a guy who was out on bond. Of course, the poor father blamed the judge, the police, whoever, and you can't really fault him, but the ad made it look like the judge had known the guy would commit a murder and should be convicted of aiding and abetting or something. The "race card" has not been played too badly, at least not on the Jesse Helms or OJ-like level, and frankly, that's the only positive thing I can say about judicial elections in Alabama. The one African-American Judge is only the second black man to hold a statewide elected office here, but he still didn't feel too confident about it, and his ads had a very small picture in the corner. Still, he got re-elected, and he's a good judge, so I can't complain about that one. The problem is the incredible and growing amounts of money that the plaintiff bar and the business council are pouring into these elections here. These guys are starting to make George Bush's Willie Horton ad look like the work of a rank amateur, and we need to do something about it before the public loses the little respect that remains to judges (what with Bob Dole attacks, etc.)

Date sent: Wed, 22 Oct 97

The selection of Court of Appeals Judges in New York is now based on the Missouri system. It is not used at any other level of the New York judiciary. As I have said previously on this net, it has not improved the quality of that Court.

New York State Judges have fixed terms, typically fourteen years, after which they must run again. After a ceretain age they must get certifications of fitness to avoid retirement. About thirty years ago, in a disciplinary proceeding against a Justice of the New York Supreme Court, who frequently reduced female uncontested divorce plaintiffs to tears as he exposed the improbability of their testimony, the Court of the Judiciary said it would have removed him if he had run for re-election.

Federal Judges in New York can be just as bad as in Alabama. We have such a large federal judiciary, this is inevitable. We have one Federal Judge who decides early in each motion before them which party is right and either abuses the other attorney or makes a completely ridiculous sanction threat against him. We had another Federal Judge who decided wrongly what the issue on a motion was and refused to allow counsel to make arguments that did not conform to his idea of the issue. We have a federal Judge who set a case with a Florida defendant down for trial only on Fridays, and after the defendant bought a succesion of plane tickets for thre consecutive Fridays, decided to try it on a Monday and Tuesday. This Judge is well known for getting cases settled by doing things like this. Unjustified sanction threats are common. A number of federal Judges have a forty-eight hour rule, which says that at any time they can put counsel on notice to try a case on forty-eight hours notice without adjournments or continuances. After this counsel spends months uncertain of his state cases will have to be adjourned, which vacation he will have to cancel, what continuing legal education he will have to skip, etc.

I believe the reason some New York Federal Judges act in this way (which is completely contrary to traditional judicial behaviour in New York) is that the combination of their life appointment and their control over an inflated staff make them feel all powerful.

I personally think life tenure tends to produce inferiort judges.

Date sent: Wed, 22 Oct 97

Overall, we generally have fine federal judges here in the Southern District of Texas. However, some have idiosyncrasies that leave room for improvement. Namely: (1) one reportedly takes the summer off to be with the judge's school age children; (2) another forced a settlement in a case that hadn't even been filed (my wife witnessed this one personally); and (3) still another refuses to follow well-established precedent, which precedent the judge fully recognize, on a particularly and personally distasteful issue. The wronged party must actually appeal and have the 5th Circuit reverse. (I personally heard this judge refer to the U.S. Supreme Court as "nine idiot judges in Washington" on the record because the judge disagreed with the holding of a precedential opinion the Court issued. Not surprisingly, the judge refused to follow the precedent and we had to appeal.)

Date sent: Mon, 27 Oct 97

This has all been very interesting to me as we have been struggling with this issue in Texas for some time. We still elect our judges in partisan elections. The campaign process is lengthy and very expensive. We have fourteen courts of appeals districts, as well as the Supreme Court and Court of Criminal Appeals which are statewide races. Four years ago they estimated a minimum of $2,000,000 for a Supreme Court race. Anyway, there has been a push for some sort of Missouri plan, but that just about got killed in the legislature. However, rumor has it that it is hanging by a thread and may resurface next session. Supposedly, our governor, George Bush, supports partisan elections. Anyway, I have been interested in the comments and may pass along these observations to the Appellate Council which I am on or to the committee that had been studying this. Thanks.

The above discussion was taken from the Appellate Law Discussion list and edited.

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