Courts and Judicial Policymaking

State Judges Selection Modalities

It is in principle that where justice is delayed, it is denied. Whenever there is a vacancy in the federal or state courts by virtue of death, resignation or any other cause, there is the necessity that such positions be filled up as soon as possible in the best interest of justice and judicial continuity. This essay therefore seeks to give insight into the various methods of selection of judges by various states, the strengths and weaknesses of each method and investigate which method(s) is applicable in Texas. According to Banks and O’Brien (Chapter 4, 2008), the most common of these criteria include merit, election, appointment and hybrid methods, which are a combination of either of the preceding methods. Suffice to say, these methods may vary from state to state, and a state may apply more than one method.

Selection of Judges by Merit

This method, variously referred to as assisted appointment or the Missouri Plan, involves the governor appointing judges from a list of nominees presented before him or her by a nominating commission or otherwise, a board. The nominating commission, which vary in composition from state to state screens and reviews the resumes and qualifications of the applicants for the office. Normally constituting both lawyers and non-lawyers, the commission then transmits a list of candidates who have merited to the governor for consideration. The governor, within a specified period selects and subsequently nominates one of the candidates. In the event the period lapses before the governor does his job, the commission will then have to make the decision on who is best qualified.

Depending on the systems of a state, some states require that the chief justice of the said state or the legislature make determination, should the governor fail in his duties of selecting and hence appointing a candidate from the list of nominees presented before him by the commission. This process is however not without support or criticisms.

The proponents of the merit method cite various reasons for their support. One, they maintain that this method culminates into more competent and qualified judges getting the job since there is no participation of voters who may lack the requisite competence to evaluate the qualifications of the judges. In addition, the method safeguards the independence of the judiciary since by insulating it from partisan politics. Judges can campaign to retain their positions. These campaigns however do not rely on huge funding hence less political influence.

Some of the criticisms to the merit method include the fact that voters have no express voice in the process. Opponents argue that voter participation is crucial. In addition, assisted selection still espouses certain political elements since the governor or members of the bar association appoint members of the commission. Another criticism is lack of transparency in states where nomination sessions are done in private.

Selection of Judges

The elective selection is both partisan and non-partisan. Partisan election occurs where there is party affiliation on the ballot. I this case, judges are elected by the people. Inversely, for non-partisan elections, party affiliation on the ballot is absent. Partisan elections are based on a similar template although there are a number of variations with respect to the manner in which the process is undertaken. A good example is Texas where the Republicans and Democrats front their candidates in the partisan primaries in a bid to represent them in the general polls. In states like Louisiana, the candidates compete on their own much as their political parties are inscribed on the ballots.

As with the partisan elections, in non-partisan elections, the voters elect the judges. The only difference is that in non-partisan elections there are no labels showing the designation of the parties to which the candidates are affiliate. The elective method too has both strengths and weaknesses.

For the partisan elections, the most common strengths include the fact that the opinion and participation of the people are taken into account. Since in partisan elections, political parties of the candidates are designated, it is clear to tell the ideologies and values of the individual candidates. Criticisms to the partisan elections points to the possibility of manipulation of the judiciary by special interest groups. In addition, voters may not make well-informed and rational political decisions that would inevitably have an impact on the judiciary and justice system.

As for the non-partisan elections, support suffices following the argument that no much funding is necessary as compared to partisan elections. Special interest groups are less attracted hence little chances of such groups swaying the justice system in their favor. Compared to partisan elections, voters in non-partisan elections do not always hold sway to the partisan politics. As for the weaknesses, the argument has always been that due to lack of partisan affiliations, issue-based campaigns take center stage often resulting to isolated judgments on very pertinent issues like homosexuality.

Selection of Judges by Appointment

This method involves the governor himself appointing the judges, sometimes with the approval of the legislature. Gubernatorial appointments are useful to the state in three main ways, that is, (a) in selection of judges for the first term, (b) selection for an interim vacancy and (c) in retaining a judge for an extra term.

Depending on the procedure in each state, the governor can make direct appointments or make appointments from proposals forwarded to him by the judicial nominating commissions. Consent from other quarters maybe necessary before the judge can officially take office following the appointment.

This method too has some strengths and weaknesses. One of the strengths is that the method of selection insulates the judiciary from external interference hence promoting the judicial independence. This is because there are no political campaigns involved as well as special interest groups who would sway justice administration.

Nonetheless, the process discourages voter participation and such the voters are barred from holding the elected judges accountable.

Hybrid Methods of Selection of Judges

The hybrid methods are mere combinations of more than one of the methods reviewed above. So much has been said with respect to the selection methods discussed prior and since the hybrid are nothing more than combinations of at least two of the above selection methods, their strengths and weaknesses lie in the individual strengths and weakness of the parent methods.

In conclusion, the state of Texas only applies one method of selection, that is, the Partisan elections method.

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