4. Judicial Selection and Retention

The selection and retention of qualified judges at both the trial and appellate levels is a matter of highest priority for all citizens. Lawyers who practice in the arena of criminal defense offer a unique and valuable perspective to this process. CACJ encourages the active participation of its members in every step of the judicial selection and retention process, including their candidacy in election contests, and opposing the appointment or candidacy of candidates who lack the qualification for judicial office.

At the level of the federal judiciary, where judicial independence is assured by lifetime appointment, the qualifications and judicial philosophy of nominees should be closely scrutinized. The process of Senate confirmation should permit thorough examination of a nominee’s attitudes and values, as well as integrity, intelligence and impartiality. At the level of the state judiciary, where judicial independence may be compromised by the electoral process, a careful distinction should be recognized between initial appointment of a new judge and retention of a sitting judge. If a contest over retention of a sitting judge is turned into referendum on the popularity of specific decisions, the independence with which decisions are rendered will be compromised. While judicial philosophy may be a relevant consideration at the time of appointment, retention elections should focus on issues of integrity, intelligence, and impartiality while in office.

CACJ supports measures to enhance the independence of the judiciary, including appointment for a fixed single term or lifetime appointment of all judges, and abolition of retention elections. Where the election of judges is mandated, CACJ urges that those elections be non-partisan and conducted with dignity and decorum. The fact that judges cannot defend themselves in public debate should be acknowledged and respected. Evaluation should be based on a judge’s entire record, rather than agreement or disagreement with the results in particular cases. The identity of the Governor who appointed a judge is irrelevant.

--drafted by Gerald F. Uelmen

FORUM, MARCH/APRIL 1988, Vol.15 No.2