Strengthening Our Courts: Judicial Selection
The way we select judges has a profound impact on the kinds of courts, judges, and ultimately, justice that we have in our country. In the early 20th century, nonpartisan judicial elections gained favor in order to minimize political party influence. Wisconsin has nonpartisan judicial elections.
In many states, the method for judicial selection is not working. As of June 10, 2022, legislators in at least 25 states have considered at least 73 bills targeting state courts, according to a Brennan Study. Thirty-eight bills in 16 states would either enable the override of court decisions or prohibit state officials, including judges, from enforcing particular laws or court decisions, especially those related to guns and abortion.
Values to Consider in Selecting Judges: Choices about judicial selection frequently require trade-offs among values. Debates about selection of judges are often framed as a struggle between independence and accountability. Important issues to consider are:
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the quality of the judge
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public confidence in the courts
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representation of diverse populations.
Judicial Independence is the capacity of individual judges to decide cases without threats or intimidation that could interfere with their ability to uphold the rule of law. It is fundamental that judges decide cases based on their understanding of what the law requires—not out of fear of political consequences. The amount of insulation a judge has from negative consequences for decisions affects the amount of independence a judge has. . In assessing threats to the state courts today, we must consider how best to insulate judges from political forces such as special interests, political parties, government branches, and majority rule.
Accountability: judges must be held accountable to ensure that they do not impose their own personal or political preferences under the guise of law. Judges must be held accountable by the voting public. Judges are meant to be a force to counter the majority, protecting the rights of minorities and pushing back against illegal actions by the government’s political branches.
Quality: What does it mean to have a quality judge? It means that judges should have an appropriate temperament, show integrity and a lack of bias. They should bring diverse perspectives and experiences in their work, and have the competence and expertise to interpret and apply the law.
Public Confidence in the Courts: polling data by the National Center for State Courts suggests that today’s public has serious concerns about the fundamental fairness of state courts. In a 2015 study, nearly 70 percent of voters think that the courts give preference to large corporations and the wealthy. Less than one-third of African Americans believe state courts provide equal justice, compared with 57 percent of all Americans. https://www.nscs.org/-media/Files/PDF/Topics/
How can the courts in Wisconsin regain public confidence?
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strengthen ethical rules and professional standards
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develop robust judicial performance evaluations
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strengthen judicial discipline
Representation of Diverse Populations:
Wisconsin has diverse populations including:
Hispanic 18.7%
Black 12.4%
Asian 6%
Native American 1.1%
The number of minority judges does not represent these diverse populations adequately. Judge Everett Mitchell, anAfrican American, is a former prosecutor and serves as the presiding judge of Dane County’s juvenile division and oversees cases involving child welfare, juvenile delinquency, family and civil law and criminal proceedings. In 2019 Governor Evers appointed Judge Joseph Donald to the state Court of Appeals, only the second African American to serve at that level. With other state court judges, Donald has called for recognizing “the ongoing injustice in our legal system and the barriers ( ignorance, denial, and silence) that stand in the way of justice.” https://pbswisconsin.org/news-item/diversity-in-the-court-justice-system/
We need to cultivate aspirations, educate young people from ethnic groups, and provide scholarship opportunities to gain appropriate judges to represent all our people.
Judicial Selection Reform: the Brennan Center for Justice proposes that justices be appointed through a publicly accountable process conducted by an independent nominating commission. This proposal is the result of a multi-year project reviewing state judicial selection. This proposed commission would allow for public oversight and curb opportunities for political self-dealing in the selection process.
Blogpost by Joan Schwarz, LWV Dane Co.
