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Why I support Amendment A – Part II

As noted in the prior Amendment A post, my support comes from a belief judicial elections are not the best way to select the most qualified circuit court judges. There’s a number of reasons why.

Quite frankly, it takes guts to run against a sitting judge. While I think it extremely rare retribution would occur, anyone considering running must give serious thought to whether an unsuccessful challenge to a sitting judge will adversely affect them, their law partners and associates, and their clients. Look at it from a practical standpoint. How would you feel if your case was set for trial in front of a judge your lawyer was challenging in an election? Yet what if this judge was the most experienced in this particular area of law or transferring the case to another judge meant a several month delay?

Additionally, some attorneys who would make excellent judges are concerned about “going public” with their interest. Currently, if you apply for a judicial vacancy, the application is confidential. Fellow lawyers and clients are not going to know you are considering leaving. The “fallout” from a public announcement seeking a judicial position may discourage eminently qualified candidates.

Thus, the fact a judge is unopposed may be totally unrelated to their skills and abilities rather than an endorsement of them.

Moreover, as we’re learning once again this year, election ads aren’t the best way to inform or educate the public. When it comes to judges, though, the public is really in the dark because so much of what they do goes without mention, scrutiny or a basis for evaluation.

The Bar Commission and the Bar Association insisted and obtained agreement that judicial evaluations would be part and parcel of any change in the selection process. A committee has been appointed to develop a system whereby each member of the judiciary will be evaluated and those evaluations will be made PUBLIC. Thus, the electorate will have a method to assess and make an informed decision on whether to retain a particular judge. Wyoming has done judicial evaluations since 1976 and not only are the results publicly available, they include all judges and not just those facing a retention election. In a head-to-head contest, however, I think it would be difficult to come up with an evaluation methodology that compares apples to apples.

Some believe having the state Senate advise and consent should be part of the process as a check and balance. I see a couple problems with that.

For example, if a judge dies, by the time an appointment is made, it may be necessary to call a special legislative session for confirmation. Extremely active judicial circuits, such as Sioux Falls or Rapid City, cannot wait until the next regular legislative session for a replacement.

Additionally, advise and consent pulls the process more deeply into the political sphere. Judical selection should be nonpartisan and, to the greatest extent possible, above politics. When I think of people who would make good judges, politics isn’t a factor. I base my assessment on their legal abilities and temperament. I don’t have a clue what party the vast majority belong to or where they are on the political spectrum.

Will Amendment A guarantee every circuit judge is the most qualified candidate? No. But I don’t think simply having a license to practice law makes you qualified to be a judge. I also believe screening by the Judicial Qualifications Commission, which includes non-lawyers, is a better evaluation of candidates than whether someone can get enough signatures on a nominating petition. If you are worried about “activist judges,” the retention election provides a method to get rid of them. Isn’t a retention election better than the non-elections we now have as judges run unopposed in in so many cases?

I am generally loathe to anything that detracts from public participation and involvement in the electoral process. Yet to me the bottom line is Amendment A will put the public in a far better position to make informed decisions during retention elections and become more knowledgeable about South Dakota’s judiciary. As a result, it will give us better judges and a better system of monitoring them.

One thing is certain regardless of how you view Amendment A. Public discussion and debate on how we select our judges cannot be a bad thing.

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