A Progressive on the Prairie

During Tuesday’s primary, voters in my judicial circuit (two counties) will see a “nonpolitical” ballot for Circuit Court judge, the state’s trial court level. We will choose which two of three candidates will face each other in one of the two contested races for judge in the circuit in the November election. (There’s only two candidates in the other contest so no primary.) The contests here will be half of those occurring in the state’s seven judicial circuits. That means 37 sitting judges face no opposition. From my standpoint, judicial elections are a rotten idea — but it’s not because of the number of unopposed “candidates.”

Some basics. South Dakota’s Constitution requires circuit court judges be elected and the five Supreme Court justices be appointed by the governor. Circuit Court elections are held every eight years whereas Surpeme Court justices are subject to retention elections after their third year and every eight years thereafter. (In a retention election, voters simply say yes or no to whether a justice will remain on the Court. If the majority vote no, the governor appoints a replacement.)

Here’s the main problem using elections to select judges: even well-informed voters don’t have the information necessary to properly assess the merits of the candidates. The Code of Judicial Conduct restricts what judicial candidates can say and do but does allow campaign contributions. No campaign ads, yard signs or the like can convey a candidate’s legal knowledge, skill or abilities. Likewise, they don’t tell us anything about demeanor or if there is reason for other concerns. Lawyers, though, know or are familiar enough with the candidates in their circuit to evaluate a candidate’s qualifications. But that knowledge seems intrinsically bound by the adage, “If you can’t say something nice, don’t say anything at all.”

Who is going to publicly criticize someone who may be deciding your clients’ cases over the next eight years? It’s easy to say and believe that any critical opinions won’t play a role but why expose clients to the risk? I know that I probably will only vote for one of the five candidates in the judicial contests in my circuit because of reservations about the others, whether competency, fairness or other issues. Yet if you think I’m telling anyone but family or close friends what I think, though, you’re crazy.

Unfortunately, there’s nothing in place by which attorneys and others who deal with judges can anonymously evaluate candidates, including Supreme Court justices during retention elections, and the compiled results be made available to voters prior to an election. Whikle each lawyer may have a different take on each candidate, at least voters wouldn’t be in the dark when voting.

That’s why I reluctantly think we should move to a merit selection system, similar to what we do with the appointment of Supreme Court justices. There, people apply for an opening on the Court, the Judicial Qualifications Commission reviews the applications and interviews those who make the initial cut, submits at least two names to the governor, who makes the appointment, and the justices become subject to retention elections. This at least provides an initial screen on the qualifications of appointed judges.

Yet aside from the political aspect of gubernatorial appointments, this suffers the same flaw as the election process; voters don’t have enough information. As a result, evaluations must be a fundamental component of merit-based judicial selection. For example, a statistically representative sample of those who deal with judges — lawyers, litigants, jurors, etc. — should be asked to complete an appropriate confidential survey evaluating a judge using specific criteria. Those results could be published and otherwise made available to voters. With a traditional election, though, there is very little common criteria to judge a candidate already on the bench and one that isn’t.

Unfortunately, we’re a long way from any such system. Judicial evaluations suit a merit selection process. But a ballot measure to amend the Constitution to make all judges subject to merit selection was defeated by a 62%-38% margin in the 2004 general election. That means we will continue to pick judges knowing little or nothing about their fitness to serve.

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Today’s judicial elections pose a real and increasing threat to the fair and impartial courts on which this country has relied to maintain its democratic government and to ensure the rights of its citizens.

Sandra Day O’Connor & Ruth V. McGregor,
Judicial Selection Principles: A Perspective