by Ken Minster, Nevada News Bureau: The chief justice of Texas’ Supreme Court said at a forum last week that he supported a ballot measure before Nevada voters to change the way judges are chosen. A legal scholar from Vanderbilt University argued against the measure at the same forum, held at the Boyd School of Law on the campus of UNLV.
Both brought unique perspectives. Texas is a state that elects its judges who collect campaign donations from those who may appear before them creating bright-line conflicts-of-interest.
Vanderbilt’s Brian T. Fitzpatrick is from Tennessee, a state that uses “merit” selection similar to one that Nevada voters are considering. In Tennessee the merit system has come under fire for creating a system of cronyism and giving voters too little say.
Changing the way Nevada chooses its judges would mean that judgeships would almost assuredly become lifetime appointments, according to Fitzgerald.
“It’s hard to lose a race when you have no opponent,” Fitzgerald said. “The retention rate is 99% if you look all across America. For us…it means that whoever the governor tells to put on the bench is going to be there for as long as they want to be there. It is basically a life tenure for the judges selected by the bar.”
Texas’ Chief Justice Wallace Jefferson argued that a merit system would be better because of the influence campaign contributions have in judicial races.
It comes down to “the money,” Jefferson said.
“We’re talking millions and millions of dollars,” Jefferson said. “From 1999-2006, the candidates in Alabama raised $9,090,388 for State Supreme Court elections. Texas was over $3,000,000.”
The merit system before voters – Nevada Ballot Question Number 1 – roughly entails three tenets.
If there is a vacancy in a Supreme or District Courts, candidates will submit their names to the Commission on Judicial Selection who will review those names based on their experience and impartiality.
The Commission then submits them for approval to the public and to the governor for appointment. This probationary appointment lasts until the next general election.
It goes on to say: “Justices and judges seeking another term would be evaluated based on their record by the newly created Commission on Judicial Performance, which would consist of the Chief Justice of the Nevada Supreme Court and equal numbers of attorneys and non-attorneys.”
This report by the C.J.P. would be available to the public at least 6 weeks before the election for review.
The vote would be a “retention referendum” or “Yes/No” question as to whether to retain the judge.
While the current system is not perfect, Fitzgerald said, there are better approaches than this for Nevada voters.
Longer terms, public financing, appointments like the federal system and anonymous campaign contributions would help alleviate voter complacency and judicial bias, he said.
One example: “I have a friend who is a judge in another state; he gets a report from the bank on how much money is in his account,” Fitzgerald said. “He’s not allowed to know [who gave it].”
Jefferson, however, cited massive voter complacency in judicial races as a reason to allow for first-term appointments.
He described how voters tossed out an overwhelming number of good judges in 2006 because of the whims of voters.
“Was it because they were bad judges?” he asked. “Was it because they were unethical or lazy or inefficient? No, they lost because in 2006 Dallas County turned Democrat.”
The UNLV Federalist Society hosted the debate.
“While the current system isn’t perfect, the solution to improve the way we elect judges in Nevada is not to remove the public from the election process and replace it with those who supposedly know better,” Federalist Society President Jason VanMeetren said. “Instead, a better solution would be to find ways to better engage the public and inform the electorate about who they are voting for.”
Disclosure: Jason VanMeetren is married to Karri VanMeetren who is a Nevada News Bureau executive board member.
Fitzpatrick worries the public will not be represented in a merit selection system, rather lawyers:
Fitzpatrick argues incumbency would be a problem in merit system’s “yes/no” vote:
Fitzpatrick cites 99% retention rate in judicial merit votes:
Jefferson expresses concern that popular elections do not guarantee a judge’s merit:
Jefferson says the public does not have enough information to be informed in their vote:
Jefferson decries current political volleying for judicial positions as “illogical”: