ALTHOUGH our attention as a nation is focused on the selection of a new
justice to the Supreme Court, another judicial process that is also
extremely important is happening across the country: the selection of
state court judges. But in too many states, citizens are being
shortchanged by the way these judges are chosen.
Each state has its own method of choosing judges, from lifetime
appointments to partisan elections. But judges with a lifetime
appointment are not accountable to voters. And elected judges are
susceptible to influence by political or ideological constituencies.
A better system is one that strikes a balance between lifetime
appointment and partisan election by providing for the open, public
nomination and appointment of judges, followed in due course by a
standardized judicial performance evaluation and, finally, a yes/no vote
in which citizens either approve the judge or vote him out. This kind of
merit selection system --- now used in some form in two-thirds of states
--- protects the impartiality of the judiciary without sacrificing
State courts resolve the most important legal matters in our lives,
including child custody cases, settlement of estates, business-contract
disputes, traffic offenses, drunken-driving charges, most criminal
offenses and most foreclosures. More than 100 million cases are filed in
state courts each year.
When you enter one of these courtrooms, the last thing you want to worry
about is whether the judge is more accountable to a campaign contributor
or an ideological group than to the law.
In our system, the judiciary, unlike the legislative and the executive
branches, is supposed to answer only to the law and the Constitution.
Courts are supposed to be the one safe place where every citizen can
receive a fair hearing.
In a merit selection system, a nonpartisan nominating commission
interviews and investigates applicants for judicial vacancies, and
ultimately recommends a few candidates to the governor. The governor
appoints one from the list. Regular "retention" elections are held to
allow voters to decide whether to keep the judge in office.
There are those who assert that this system benefits legal insiders,
because lawyers will inevitably dominate the nominating commissions,
which would hold their meetings in secret. But to the extent that this
could be a real problem, Arizona has already demonstrated how to avoid
it. In that state, nominating commissions are dominated by non-lawyers,
and their meetings are open. Candidates' applications are available
online, and the public is invited to comment.
Another argument against this system is that it deprives voters of the
chance to choose their judges. But the truth is, in those states that
elect judges, candidates often run unopposed, so voters are left with no
options, and little information about the people who are on the ballot.
In a system where judges are evaluated before they are put on the
ballot, voters can make their decisions more knowledgeably --- with
relevant information about the judges' performance on the bench.
This year, 16 states will hold contested elections for seats on their
highest courts, and candidates will raise and spend millions of dollars
for their campaigns. In 2008 alone, nearly $20 million was spent on TV
advertising in contested elections for 26 state supreme court seats.
Some states where judges are still elected are considering
constitutional changes to a merit selection system. The Minnesota
Legislature has considered asking voters to weigh in on such a change,
and may do so again next year. And in Nevada (a state ranked eighth in
campaign spending on judgeships), two legislators --- the Senate
minority leader, William Raggio, a Republican, and Assembly Speaker
Barbara Buckley, a Democrat --- pushed through a ballot question that
citizens will vote on this November on whether to institute a merit
selection system for judges.
We should cheer Minnesota and Nevada as they pursue impartial courts and
create for their citizens that one safe place. Other states should soon
Sandra Day O'Connor was a Supreme Court justice from 1981 to 2006.
A version of this op-ed appeared in print on May 23, 2010,
on page WK9 of the New York edition.