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Poll Finds Voters Uninformed About Judicial Selection

By Elenore Cotter Klingler, Litigation News Associate Editor – December 15, 2008

Americans want a meaningful role in the judicial selection process, but many lack even basic information about how their own state judges are chosen. That’s the finding of a recent nationwide poll of voting-age citizens by Harris Interactive, with input from the American Bar Association.


Polling Results
A plurality of respondents, 42 percent, say they are “not at all sure” how judges are selected in their state, while 32 percent think they are elected, 11 percent think they are appointed, and 15 percent think they are both. In actuality, 39 states elect their judges in some fashion, according to the National Center for State Courts.


Despite their personal lack of knowledge, Harris poll respondents strongly support direct citizen involvement in the selection process and overwhelmingly oppose special-interest money in judicial campaigns. Those findings are consistent with the ABA’s position on judicial selection [PDF], according to H. Thomas Wells, Jr., Birmingham, AL, current ABA president and past chair of the Section of Litigation.


Merit Selection
The ABA prefers a “merit selection” process, in which potential judges are suggested by citizen commissions and ultimately appointed by the governor. One of the goals of a merit selection process is to avoid negative campaigning and special-interest money, both of which negatively affect the public’s view of the judiciary, according to William K. Weisenberg, Columbus, OH, chair of the ABA Standing Committee on Judicial Independence.


“The data is replete and consistently shows that the public believes campaign contributions influence judicial decisions,” says Weisenberg. “The challenge is how do we create a system with a better perception for the public?”


Citizen Commissions
For nominations to the federal courts, input from citizen commissions may be “a better mousetrap,” says Wells, who adds that the constitutional process for nominations and confirmations would remain with the president and Senate, respectively. “In the states using the commissions now, there appears to be anecdotal evidence that there are fewer rancorous debates” over federal judicial nominations, he notes.


The Harris poll found that 67 percent of respondents think citizen commissions to assist with federal court nominations are “a good idea” and 55 percent believe they should be made up of “people like them.” Not everyone believes such commissions are a good idea, however; a Wall Street Journal editorial in August criticized such commissions as beholden to the local bar and disenfranchising to citizens.


Elections and Partisanship
Enfranchisement is an important concern, with the Harris poll showing that 55 percent of respondents think state judges should be elected. “Voters overwhelmingly want to elect judges,” says Melinda Gann Hall, Distinguished Professor of Political Science at Michigan State University and coauthor of the forthcoming book, In Defense of Judicial Elections (Routledge).


Hall’s research, which uses empirical methods to examine voter behavior in judicial elections, shows that the common assumption that nonpartisan elections or even no elections at all produce fairer results may be incorrect.


“You don’t take partisanship out of the process by taking voters out of the process,” Hall says. One of the better ways to improve voter participation and selection, Hall discovered, is party labels.


“Partisan labels make elections work like they’re supposed to,” Hall says, adding that nonpartisan elections tend to produce “idiosyncratic results” as voters look for party cues in unreliable sources, such as the candidate’s name. Further, in partisan elections, there tends to be more information in general about the candidates, possibly improving voters’ choices.


Voter Education
Although the ABA opposes partisan judicial elections, Weisenberg agrees that better voter education is necessary.


The Harris poll results show what the ABA has known for some time, which is that voters prefer to elect their judges but want those judges to be free of any third-party influence, Weisenberg acknowledges.


The ABA is working with state bar associations to help improve elections through candidate profiles and other information to increase voter knowledge and participation. There is “clearly a role for the ABA” in educating the public about courts and the rule of law, Wells says.


In addition to the annual Law Day, the ABA is working with several organizations to make civic education a bigger focus in American schools and a testable subject under the No Child Left Behind educational framework. “The majority of people in this country believe in the courts,” Weisenberg says. “We need to do a better job explaining what the courts are about.”


Keywords: Judicial elections, campaign contributions, merit selection, citizen commissions, voter education.


 

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