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Let
the People Judge the Judges: Reforming Virginia's Judicial
Selection Process
by Donald D. Litten
For Virginia Business
September 2003
Judicial
selection in the States is an important, diverse, and
controversial process. State judges impact every arena
of life with their decisions, from traffic to criminal
court. And through this century, the debate has persisted
over what is the best way to select these judges. In
Virginia, the state constitution gives the General Assembly
the right to choose judges, one of very few states to
use this method. Most of the other states use some form
of popular election or gubernatorial appointment. "To
outsiders, Virginia's system of lawmakers electing judges
looks quirky and even unfair, a cloistered system of
good ol' boys looking out for each other." Perhaps
there is a reason that Virginia is in by far the minority
on the judicial selection issue. There are too many
flaws in a system that gives the legislature exclusive
power to appoint and remove judges at its pleasure.
Virginia's system as it is now is "a highly partisan
process that Democrats had lorded over while they were
in power, and one that state Republicans seem to be
relishing now that they're in the majority." Virginia
needs to rethink the way it chooses its judges.
A
demonstration of the system's flaws in action was the
reappointment process that resulted in the removal of
former Newport News Judge, Verbena Askew. Last January,
Askew was subjected to an all day hearing in front of
the House and Senate Courts Committees , almost seven
hours of questions and debate, before each committee
voted to deny her a second term. Askew's critics pointed
to complaints regarding her conduct as well as her nondisclosure
of an accusation of sexual harassment. Askew's supporters
blamed her ejection on racism, sexism, and politics,
and say that she was "among the best of the city's
judges." Whether the removal of Askew was correct
or not, the venomous accusations and highly partisan
vote point to serious problems in the whole arrangement.
Gov. Mark Warner (D) told reporters that he "was
troubled by Askew's reappointment process" and
said "there were parts of it that went over the
line." Senate Courts Chairman Kenneth W. Stolle
(R), a chief force behind Askew's removal, said that
although he felt the hearing was fair, "as these
things do, it took on a life of its own." Editorials
in local newspapers promised consequences "for
the legislature as an institution," and "the
integrity of the judicial selection process," and
opined that this "is a powerful argument in favor
of a judicial selection process more removed from the
political arena." There is "damage done to
the independence of the judiciary when a legislative
body puts a judge through this level of scrutiny"
said Rodney A. Smolla, a constitutional law professor
at the University of Richmond law school. And Askew
was not the only judge under this heavy scrutiny. Although
she was eventually reappointed, Judge Rosemarie Annunziata,
of the Court of Appeals, was also painstakingly examined.
The reappointment ordeal that she was subjected to,
with the committee focusing almost exclusively on one
controversial opinion out of over 600 that she had written,
led House Democratic Caucus Chairman Brian J. Moran
(D) to believe there was "another agenda being
pursued."
These
recent, highly publicized events are just the latest
in a series. On average, over the past ten years, two
judges a year have failed to be reselected. Some were
under very questionable circumstances, although it should
not be assumed that all dismissals of judges fall into
this category. In one instance, "an Eastern Shore
legislator maneuvered his law partner for a circuit
court judgeship after clearing out the incumbent."
There are even rumors that in the 1980s a judgeship
was decided based on a coin toss. In 1997 both Republicans
and Democrats expressed frustration after the General
Assembly failed to select a judge for an open slot on
the Virginia Supreme Court, forcing the Governor to
choose a judge instead. Delegate Jay DeBoer (D) asserted
that the "process is broken" and "direct
election of judges would be better than this."
Senator William Bolling (R) agreed when he said, "if
there's ever been any question about whether Virginia
needs a better system of selecting judges, just look
at the spectacle we have here today." He continued
with, "you shouldn't have to barter to pick a member
of the Supreme Court; you should consider qualifications.
That hasn't even come up."
The
question of considering qualifications is a tricky one
under the current Virginia system, and not even necessary
under current Virginia law. Although "both primary
legal associations in Virginia - the Virginia State
Bar and the Virginia Bar Association - have issued general
guidelines for judicial-selection criteria," there
are no specific guidelines established in Virginia law.
What this means is that legislators can and do set their
own criteria for determining whether a judge belongs
in office. Virginia finds itself in the "crisis"
situation described by the American Bar Association
(ABA) when it says that "in some states, political
parties want to control the courts in much the same
way they control the legislative and executive branches
of government." An ABA report argues that our justice
system is in jeopardy due to "increased political
involvement in the judiciary, diminished public trust
and confidence in the justice system, and uncertain
resources supporting the courts" which combine
to "place burdens on the judiciary's capacity to
provide fair and impartial justice." Giving the
General Assembly exclusive selection and reselection
power over the State's judges gives them too much power
over the whole justice system and even more importantly,
it gives them too much power to abuse the system. "The
ability to select and reappoint judges produces amazing
personal clout. If you are a legislator, rich, ambitious
attorneys who want to be judges or want their law partners
to be judges come to you." In addition, there is
an innate conflict of interest when legislators, many
of whom are lawyers, select the judges whom they might
appear before in court. There must be a better way to
select and sustain judges than by putting that whole
power in the hands of a highly biased and politicized
body such as the legislature.
The
selection debate comes down to judicial independence
and judicial accountability and how to maintain both.
The issue of judicial independence is of utmost importance
because "an independent and qualified judiciary
is necessary to ensure fairness in our justice system
and to protect the constitutional rights and liberties
of all Americans." Judges must be impartial and
free from either political or economic pressure because
"public expectation of getting a fair hearing in
the courts is a cornerstone of the judicial system."
When the judicial branch of government comes too far
under the control of either of the other branches of
government, judicial independence is most threatened.
Yet, it is also true that judges must also be held accountable
for their actions to prevent any violation of the great
trust that is placed on them. The ABA acknowledges the
tension between judicial independence and judicial accountability
in the judicial selection process when it points out
that "it is one thing to acknowledge the need for
selection systems to preserve and promote independence
and accountability-a point with which few would disagree-and
quite another to determine what selection system strikes
the optimal balance between the two."
So
what selection system comes closest to striking that
optimal balance? There are three general methods of
state judicial selection, each with different regional
variations. In some states judges are appointed, either
by the governor or, in the case of Virginia, by the
legislature. In other states, judges may be elected
in either partisan or nonpartisan elections. The third
option, and one which has gained growing support throughout
the country, is Merit Selection, also known as the "Missouri
Plan," because Missouri was the first state to
adopt it. The basic provisions of the Missouri Plan
include a broadly based and diverse nominating commission
that selects and forwards the names of the few best
candidates to the governor who then selects someone
from that slate. The new judge then serves a trial period
at the end of which the voting public, through the use
of an uncontested "yes/no" retention election,
decide whether or not he or she should continue service.
If retained the judge goes on to serve a full term and
is subject to retention elections at the end of each
term. Although no system of judicial selection is perfect,
the Missouri Plan avoids the worst of the flaws prevalent
in the other systems and provides the best method of
maintaining judicial integrity and independence without
forgoing accountability to the people.
The
biggest benefit of the Missouri Plan is the diminished
influence and control over, although not total absence,
of partisan politics. "Judges decide issues of
intense social, cultural, economic and political interest
to the public and the other branches of government"
and "merit selection is not a system that ensures
the total elimination of politics from judicial selection."
There is really no way to entirely eliminate politics
from any method of judicial selection. However, even
in this innately political setting "the requirement
that an independent commission review the qualifications
of and approve all would-be judges provides a safety
net to assure that all nominees possess the baseline
capabilities, credentials and temperament needed to
be excellent judges." Under the Missouri Plan,
"judicial seats are filled with persons who have
demonstrated high standards of professional conduct
and qualifications, rather than a mere partisan ability
to gain favor in a political party." In addition,
"a nonpartisan court plan provides opportunities
for persons to become judges who might not otherwise
have a chance, or who might strongly prefer to refrain
from engaging in the contested election process."
And perhaps even more important in the Missouri Plan
is the provision for retention elections. Retention
elections insert democratic principles into the process
by allowing the ultimate authority in this country,
the people, to hold judges accountable while still avoiding
the serious problems found in contested elections, such
as possible conflicts of interest when contributors
to a judge's campaign appear before the judge in court.
"In retention elections, judges run against their
records, rather than against opposing candidates, which
means that incumbents are at risk of losing their seats
only if voters deem their records unacceptable."
Holding retention elections serves "to remind judges
that they are judges, not legislators, and that their
conduct in office is important. Elections allow citizens
to evaluate the judges" while still freeing judicial
candidates "from traditional partisan politics
and fundraising" and "judicial decisions are
more impartial because judges are in a secure environment
to decide the cases in a neutral and fair manner."
According to the ABA, "the time has come to inoculate
America's courts against the toxic effects of money,
partisanship and narrow interests. The Virginia Courts
themselves know that Virginia's judicial system needs
to change. Every few years, after extensive studies,
the Virginia Judicial System puts forth their "Strategic
Plan" for the purpose of "identifying and
assessing the challenges, opportunities, and expected
demands that lie ahead" because "the future
of the justice system is too important to be left to
chance." In the Strategic Plan the Virginia Courts
share their vision of the judicial system and the steps
needed to achieve that vision. To accomplish the Judicial
System of Virginia's 2002-2004 Strategic Plan's mission
of providing "an independent, accessible, responsive
forum for the just resolution of disputes in order to
preserve the rule of law and to protect all rights and
liberties guaranteed by the United States and Virginia
constitutions" the objective of ensuring "that
the judicial system attracts and retains the most qualified
persons for service on the bench" must be completed.
And one of the tasks to fulfill that objective is to
"secure legislative adoption of merit selection
of judges in order to recruit and to elect the most
qualified judiciary." In other words, in their
Strategic Plan, the Virginia Courts put forth the need
to reform the judicial selection system. And the system
they recommend is the Missouri Plan.
Merit
Selection provides a viable alternate way to select
judges and the Missouri Plan has been consistently gaining
recognition and popularity. Currently, 34 states and
the District of Columbia select some or all of their
judges through merit selection. However, because Virginia's
judicial selection process is set out in the state constitution,
it would require a constitutional amendment to change.
And whether the General Assembly would be willing to
relinquish its power over the judiciary is far from
clear. What is clear is that everyone - judges, legislators,
and particularly the people - deserve a better, fairer
system.
The
writer is a Harrisonburg attorney in practice since
1957.
Return
to Virginia Business - September 2003
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