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Justices making new push to abolish elected judges

AP News
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Posted: Dec 10, 2009 5:03 PM

An old debate about whether judges should be elected or appointed is heating up again.

Former Supreme Court Justice Sandra Day O'Connor and several state Supreme Court justices are planning a nationwide push during next year's state legislative sessions to end the practice of electing judges. Nevada already has such a proposal before voters on the 2010 ballot.

Many judges and the American Bar Association argue the legal system is tainted by judges seeking campaign donations.

"It doesn't support the fundamental principle of judges acting fairly and impartially," Ohio Chief Justice Tom Moyer told The Associated Press.

A judicial think tank at the University of Denver has assembled a group of prominent judges, including O'Connor, to push for the abolition of directly elected judges in the 33 states that have them.

They want state commissions made up mostly of non-lawyers to pick judges. Governors would appoint judges the commissions select, and voters would decide in future elections whether the judges keep their jobs.

Current judicial elections give a false impression that voters have much invested in court picks, O'Connor said.

"A voter goes into the voting booth on Election Day, and they have a long list of races to vote for," O'Connor told the AP. "When they come to the judges, they don't typically know any of them. How are they supposed to decide?"

Open judicial races lead to pricey television campaigns in some states. That requires fundraising, often from trial lawyers or businesses interested in who decides cases that affect them.

Earlier this year, the U.S. Supreme Court narrowly ruled that elected judges must step aside if campaign donations are likely to create the perception of bias. That ruling was sparked by a West Virginia case in which a state Supreme Court judge ruled on a dispute that affected a company whose chief executive spent $3 million to help get the judge elected.

"It really highlights the need for a change," said former Arizona state Supreme Court Chief Justice Ruth McGregor. Arizona has long used the appointment and retention-vote system backed by the Denver-based initiative.

McGregor said the rising expense of judicial races, topping $1 million in some states, could lead more states to follow Arizona.

"Contributions have gotten so enormous that it causes voters to step back and say, `Isn't there better way?'" McGregor said.

But history suggests the appointed-judge initiative faces long odds.

Even O'Connor concedes only two states _ Ohio and Minnesota _ are likely to put the question before voters in the near future along with Nevada.

One of the nation's most prominent backers of appointed judges, Texas Supreme Court Chief Justice Wallace Jefferson, concedes his state has little appetite to forgo partisan judicial races.

"You have to be realistic. We've been trying to change this for 30 years," said Jefferson, who has been on Texas' highest court since 2001.

In Ohio, voters have rejected appointment schemes as far back as 1938. In 1987, Ohio voters again declined to change the state constitution to do away with elected judges.

"It has sort of an elitist tinge to say that voters aren't sophisticated enough to make this determination," said Jeff Patch, a spokesman for the Alexandria, Va.-based Center for Competitive Politics, which opposes campaign finance limits.

Patch said voters don't buy the argument that appointed judges, even those who face retention elections and performance reviews, are somehow insulated from accusations of bias. He pointed out the possibility of a governor appointing a donor to the bench, or a commission choosing a popular lawyer.

"To say that merit selection is going to be more ethical is pretty misguided," he said.

Rebecca Love Kourlis, executive director of the Institute for the Advancement of the American Legal System and a former Colorado Supreme Court justice, said a pending decision from the U.S. Supreme Court could boost interest in the elected-judge debate.

The high court is expected to issue a ruling on campaign finance that could lead to fewer restrictions on how much businesses and unions can spend on favored candidates. If that happens, states could see more expensive judicial races.

"We think the timing is right" for a national debate on elected judges, Kourlis said. "Judicial elections have become so expensive, and so unseemly, that this is something ripe for action."

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On the Net:

Institute for Advancement of American Legal System: http://www.du.edu/legalinstitute

Center for Competitive Politics: http://www.campaignfreedom.org

(This version CORRECTS that donor in W.Va. case was chief executive, not owner.)