Governors have their own criteria for
selection from the list. Even if someone who
makes the committee’s list is not selected
by the governor, having made the list is a
good indication one can apply again should
another appropriate judgeship or seat on the
Supreme Court become available.
Since the constitution now provides a judge
who is appointed to the bench and serves
at least two years before having to run for
election, the problem faced by previously
appointed judges of running in the next
election has now been eliminated. It also
means the performance of the newly
appointed judge can be evaluated by the
voters before the first election the new judge
will have to face. Can the new judge make a
decision? Can the judge get the work done
in a timely fashion? What is the judge’s
demeanor in the courtroom?
Under our present system, whether there
is an election or whether the nominating
committee will function is usually under the
control of the sitting judge or justice who
must decide if she or he will complete a term
and let the election process work or retire
and let the nominating committee evaluate
people who are interested in the seat. I prefer
the latter. If the sitting judge completes
the term and there is an election which is
contested, the process is costly and time-
consuming. Recent history indicates it may
be uncontested. Clearly that reduces the time
and expense for a person seeking a judgeship,
but it also reduces choice for the electorate.
A contested election is a strange experience.
It is more of an education for the judge than
it is for the public. The judicial candidate
learns quickly the public does not distinguish
between candidates for judicial office and
those candidates who can and ought to
announce positions on how the candidate
would serve and make decisions in the office.
The judge learns very quickly how little she
or he can say about what the public really
wants to know from the candidate about
current issues. Any definitive statement is
likely to disqualify the judge from acting on
the issue on which a position has been taken.
the person’s abilities. The judicial candidate
learns rather quickly, although it is a
non-political office, the perception of who
appears to approve of a person’s candidacy is
important and matters, like name recognition
can easily triumph over judicial abilities in
a media world. One learns the cost and the
power of the media world and the cost and
lack of power of doing without that world.
One also learns there are persons with fine
intellects, judicial temperaments, and diligent
work ethics for whom the election world is
so foreign it cannot be mastered.
Despite the shortcomings of the electoral
process for selecting judges, it is a part of our
constitutional framework and I would not
advocate otherwise. I do not favor judges
who are appointed for life or even for terms
longer than 10 years. We must have a process
for continuing the judge in office. It can be
a direct election as we have, which is either
contested or not. Or it could be a retention
election in which voters decide whether to
retain a judge in office. In such an election,
the judge does not face an opponent but
only the question of whether the judge
shall remain a judge. Such an election is
particularly susceptible to factions of who
have become angry with a particular judge,
because of a decision or particular issues, and
wants to remove that judge. Voters are better
served when they have to choose between
candidates or support a particular candidate
than when they have to evaluate angry attacks
by unhappy constituents.
It is a fact that in our state most judgeships
are uncontested after the first election or
appointment. Many problems of contested
election do not afflict our region as they do
elsewhere. But contested elections do occur.
When they do, one hopes it becomes apparent
whether the voters have good choices between
qualified candidates who are seeking the
position for appropriate reasons or whether
that is not the case. The appointment process
is more likely to assure the governor has
good choices from which to make a selection.
The people the governor selects, based upon
the evaluation of the judicial nominating
committee and the governor’s own criteria,
can then be evaluated by the electorate based
upon their performance as judges. I urge my
colleagues on the bench to consider retiring
before completion of their terms.
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The judge learns quickly it is the manner
in which one approaches the public that
counts. The public is likely to be left with a
perception of the candidate’s character and
background, but without real knowledge of
FALL 2018
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