States Seek Better Ways to Pick Judges

Americans would like to think that people who become judges are of such high moral character and professional accomplishment that they are incapable of wrongdoing. But the sad fact is that not all who become judges are worthy of the title.

A few examples:

* A Tennessee judge convicted of sexually assaulting several women in his courthouse chambers becomes a federal fugitive rather than report to prison to serve 25 years.

* A Miami circuit court judge is sentenced to 15 years in prison after being convicted of selling for $50,000 the identity of an undercover informant in a drug case.

* The chief judge of the Illinois Supreme Court is censured after reports that he used his power to try to beat speeding tickets, "ruling" from behind his steering wheel that he was not guilty.

How best to separate judicial wheat from chaff is at the heart of a debate over whether judges should be elected or appointed.

One idea is to give more attention to the selection of potential judges to prevent unsuitable candidates from ever reaching the bench, rather than trying to police and remove incompetent or corrupt jurists.

The debate has been joined most recently in Florida, where public-interest groups are pushing a proposal to end the election of thousands of trial court judges throughout the state. Instead, Common Cause, the League of Women Voters, and others want all judges in Florida selected the way Florida Supreme Court and appeals court judges are picked - through careful consideration of a judicial nominating committee that examines qualifications and temperament before recommending at least three candidates to the governor for appointment. Each appointee is later subject to a retention election, in which voters are asked whether the judge should continue to serve or be replaced.

Opponents of this approach say it erodes democracy, replacing a selection process open to millions of voters with an elitist commission that will be heavily influenced by political pressures unseen by Florida voters.

At the heart of the appointment-election debate is a dilemma over how to strike a balance between two equally desirable goals: achieving judicial independence from outside interference versus holding judges accountable for their actions on the bench.

"When you start talking about judicial-election reforms, you must ask what will this do to the independence or accountability of the judges?" says Anthony Champagne, a political scientist at the University of Texas at Dallas. "What each state has to do is find the appropriate balance."

Proponents of so-called merit selection say the process results in higher-quality judges who are less likely to bring ridicule or disgrace to the judiciary. A study found that of 27 Florida judges disciplined in the 1970s and 1980s, 24 came to the bench via elections. Three were appointed.

"We know that judges who are elected are much more likely to be disciplined for their performance on the bench than those who are appointed," says Sally Spener, executive director of Common Cause Florida.

Each of the three judges cited at the beginning of this article was elected to the bench. But elected judges don't hold a monopoly on scandal.

Sol Wachtler, chief judge of the New York State Court of Appeals, the state's highest court, resigned and pleaded guilty in 1992 to charges that he harassed his former mistress and at one point threatened to kidnap her teenage daughter. Judge Wachtler was appointed after being considered by the same type of judicial nominating committee sought for trial judges in Florida.

ON the federal level, under the US Constitution, all federal judges are appointed by the president with the consent of the Senate. They serve lifelong terms.

By contrast, during the past two centuries the states have adopted a patchwork quilt of methods to select their judges. In the 1830s, during the administration of Andrew Jackson, most states were swept up in a wave of popular democracy and decided that elections made judges more accountable to the people.

But during the last half of this century, the tide has been turning toward an appointment process combined with merit selection commissions. "The best evidence of the benefit of merit selection is that no state has yet returned to an elective process after adopting merit selection," says Jonah Goldschmidt, a political scientist at Loyola University in Chicago.

Today, 34 states and the District of Columbia use merit selection to fill at least some judicial vacancies, according to statistics compiled by the American Judicature Society. Eleven states rely exclusively on contested elections to pick judges. Five other states appoint judges without any input from nominating commissions.

In Florida, the issue is under consideration by the state's Constitution Revision Commission. If the proposal is adopted by the commission late this year, it will be placed on a statewide referendum in November 1998.

Election opponents say voters have little if any idea who the judicial candidates are, let alone whether they have the right stuff to be judges. Judicial campaigns, they note, are funded largely with contributions from lawyers who practice law before the same judges they support.

"Justice for sale. That is what it can look like to the public when large amounts of money get thrown into the election of judges," says Kate Sampson of the American Judicature Society in Chicago.

To John Dowless, executive director of the Christian Coalition of Florida, judicial elections provide an important check on the power of the judiciary.

"Our Founding Fathers wanted an independent judiciary, but they also warned against a too-powerful judiciary, and that is what we are moving toward," he says.