Thoughts About Enriching Judicial Independence by Improving the Retention Vote Phase of Appointive Selection Systems

In August 1979, Time magazine featured an article titled, “Judging the Judges.” In that article, nearly 30 years ago, was a discussion about a number of problems facing the judiciary as well as a discussion about potential reforms to address the problems. One of the problems discussed at some length was public perception that the judiciary lacked sufficient impartiality. While recognizing the emergence of judicial discipline systems to address partiality problems of sitting judges, the article also noted “a convincing argument for getting better judges to begin with.” The article also recognized that, at that time, “half the states [had] turned to socalled merit selection for at least some judges” utilizing some type of a selection committee or nominating commission, a “selector” who chooses from candidates forwarded by the committee, and a “retention ballot” process of retention elections. As the Time article noted, one problem with voters going to the polls and having a say in choosing the people who resolve their disputes and enforce the law is that “most voters do not know much about the candidates for whom they are voting.” As discussed below in this article, the same could be said about voters going to the polls and having a say in deciding whether sitting judges should remain on the bench. Further complicating the process and the difficulties of ensuring both independence and competence is that “[d]efinitions of a good judge read like recommendations for sainthood: compassionate yet firm, at once patient and decisive, all wise and upstanding.” The difficulty in finding the best possible process for locating and retaining judges who can live up to such lofty standards makes examining judicial selection and retention an especially meaningful undertaking. In 2005, almost three decades after these very issues were being raised and discussed in Time, we examined them as part of a symposium on Judicial Independence at Fordham Law School in Manhattan, New York. The present article is derived from an article, written for the symposium (and published in Fordham Urban Law Journal), that contains specific information about the merit selection system that exists in Nebraska. The present article notes a number of examples of what appear to be steps in the right direction toward improving judicial selection processes as a whole and judicial retention processes as a part