Document Type

Working Paper

Publication Date

6-6-2007

SSRN Discipline

Economics Research Network; Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory

Abstract

Clearly there is no one best way to select judges Any judicial selection system has both strengths and weaknesses State judges in the United States may take the bench via election or appointment but most judges even those in states utilizing judicial elections originally take the bench through appointment Appointment obviously is the quickest and most efficient way to fill a judicial vacancyThis paper focuses on one of the pillars of the appointive process the judicial nominating commission It suggests that all jurisdictions should have judicial appointment commissionsThe task in a good judicial selection system is not simply to fill vacancies but to select the best candidates for judicial positions To accomplish this purpose through the use of a nominating commission scheme we should strive to develop the ideal judicial nominating commission system I suggest that such a system should possess at least three principal features It should adhere to democratic ideals it should maintain as much independence as reasonably possible and it should enjoy public acceptance and support Additionally local conditions and requirements must be considered in designing any commission scheme Almost needless to say these features and considerations conflict to some extent Because of the tension between them they greatly complicate efforts to design an ideal commission Despite these difficulties we should not compromise on the principal features of an ideal scheme any more than necessary to reach the best possible balanceA delicate balancing of democratic ideals and independence will garner public support for a judicial nominating commission without the need to over compromise any of these core principlesPolitical elites should not control judicial appointments and proper use of a nominating commission approach reduce the concentration of power in political officeholders by spreading the nomination and appointing powers As the article explains commission independence enhances both democratic ideals and judicial independence Commission independence encompasses both external and internal independence which includes external and internal capture In sum the spread of power among a more representative group not only is more democratic but it can also create a significant degree of independence Moreover as noted judicial appointment commissions must have the confidence and support of the public which it serves The article also discusses how a commission can garner public supportDesigning the appropriate appointments commission paradigm is not an easy task but with proper attention to detail such impediments as commission capture can be eliminated or reducedJudicial nominating commissions are the most worthy arguably critical components of the judicial selection process even in jurisdictions that elect their judges Nominating commissions though are only as good as their organization members and procedures permit This article raises then addresses a number of the most challenging issues in developing an appropriate judicial nominating system

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