State the Issues - November 2007

State the Issues

Should judges be appointed Should judges be appointed rather than elected?

Keep Judges Independent

Today in Nevada, judges are selected by a corrupt money-chasing process.  Since 1998, we have raised the ante on the cost of one Supreme Court seat 300% from $174,000 to more than $543,000. Judges and candidates are forced to seek money, while attorneys and litigants are forced to give money to avoid risking a bad day in court. 

Many judges along with the president of the Nevada State Bar have asked that we change this corrupting practice. In 2007, the Legislature passed SJR2, which if passed again and ratified by the public, would create two public professional committees. The first would receive nominations for a judgeship and an evaluation using professional standards, sending the best of those nominees to the governor for appointment. The second committee would create standards for judicial performance review and the results of which would then be used by the public to vote in a retention election for all judges previously selected. 

Some argue that politicians and judges are equally chosen by the same standards. The 2007 ABA Model Code for Judicial Conduct explains that governors and legislators are not expected to be independent of the people. To the contrary, these officials are expected to represent their respective constituencies by acting on the policy preferences of those who elected them.

Judges, however, are different. Once voters’ policy preferences are enacted into rules of law, it is up to judges to ensure that those rules of law are faithfully interpreted and upheld. The rule of law would be corrupted if interest groups, public officials, powerful private citizens, or fleeting majorities of the public could intimidate a judge into interpreting a law to their liking or reading a law out of existence altogether. Unlike governors and legislators, judges must be as “independent as the lot of humanity will admit.”

Editor's note: Craig Walton wrote this piece for Nevada Business Journal before he passed away on October 8.

SJR2: The Worst of All Worlds

By Professor Tuan Samahon, Boyd School of Law

Senate Joint Resolution 2 would amend the Nevada Constitution to remove voters from the process of electing their judges. Under the plan, a commission of “experts” – to be dominated by the State Bar and the incumbent Chief Justice – will nominate a slate of candidates for judicial office. The governor will select a judge from among the approved candidates. Subsequently, the governor’s pick must stand for an uncontested retention election.

    There are good reasons to doubt SJR2 will restore justice to Nevada rather than perpetuate influence, or “juice.”

First, SJR2 will not drain the influence of money from the courts. Judges will still campaign for retention and therefore will need to raise money. SJR2 does nothing to eliminate the potential for serious conflicts of interest.

Second, SJR2 makes the Judiciary almost entirely unaccountable to the public. A 30-year study of ten states with retention elections found incumbents were retained about 98 percent of the time. This is not surprising. Retention election does not give voters a choice of a named alternative to the incumbent. It’s strictly the devil-voters-know versus the devil-they-don’t. Therefore, SJR2’s outcome will be life-tenured judges without the usually associated benefit of impartial judgment.

Third, several scholarly studies confirm that appointed judges, on average, are no more qualified than elected judges. District Judge Elizabeth Halverson, whose incompetence has fueled sentiment to adopt SJR2, is the memorable exception, not the competent rule.

What alternatives to SJR2 would assist Nevada in securing the integrity of its judges? Don’t expect the Judiciary to recommend these: limit election to fixed non-renewable terms; cap campaign contributions; redefine what constitutes a conflict of interest to encompass fundraising from counsel; change Nevada’s impeachment process; streamline the judicial disciplinary and removal process; and prosecute vigorously corrupt judges, parties and lawyers. Nevada’s problem is misbehaving jurists, not the ability of its voters to hold the Judiciary accountable.