States Let Voters Rule on Judges

How judges are appointed, elected and forced to retire (if at all) are key themes in this year's ballot measures.
by | October 9, 2014

ELECTION 2014: This article is part of our coverage of ballot measures to watch.

A number of states this election season are seeking to change the ways that judges either get their jobs or keep them. From retirement ages to gubernatorial appointments to judicial elections, the changes are driven by politics and practicality. The following is a breakdown of the main themes.

Retirement ages

Hawaii is seeking to increase the age to 80 from 70 years old and Louisiana wants to eliminate its mandatory retirement age of 70 altogether. A total of 21 states have a mandatory retirement age of 70 for judges and 11 states plus the District of Columbia have retirement ages above age 70. Eighteen states do not have a mandatory retirement age.

The subject of judicial retirement ages has been on a state ballot in each of the last few years and it’s one that won’t go away any time soon, said Bill Raftery, an analyst for the National Center for State Courts. “It’s going to keep coming up because people keep living longer,” he said. “They’re more active and they’re able to remain more productive over longer periods of time.”

This isn't the first time Hawaii and Louisiana have tried to change mandatory retirement for judges. This year marks Hawaii’s third attempt in the past eight years at a ballot measure addressing judicial retirement. Louisiana has tried and failed three times in the last 20 years to get voters to increase or eliminate the mandatory judicial retirement age.

So why tinker with mandatory retirement? Proponents say the current law is unreasonable age discrimination. In addition, says a Louisiana Public Affairs Research Council primer on the 2014 election, older judges have more experience to rule on cases while "the current law sends good and capable judges into retirement." On the con side, the council says, a retirement age ensures that judges remain alert and fully capable of performing their duties. It also avoids the possibility that judges can become “untouchable,” especially in smaller communities.

Appointments

Two states are asking voters to alter the way judges are appointed. Tennessee is looking to replace its merit-based system with an appointment system that mirrors the federal system. Currently, the state’s Judicial Nominating Commission draws up a list of nominees and the governer selects a judge from that list. The proposal being put to voters would have the governor directly appoint a judge who would then be subject to approval by the legislature. After an eight-year term, that judge's reappointment to subsequent terms would be decided by retention elections, which are held during general elections and are simply and up-or-down vote on whether the sitting judge should stay.

A total of 27 states and the District of Columbia have statewide judicial nominating commissions, institutions that emerged during the first half of the 20th century as a reaction to the machine politics that took over many large cities and statehouses. The merit system of selecting judges isn’t immune to politics – commissions include people who were appointed by the governor, legislators and/or lawyers who ran for positions and were elected by their state bar associations. But proponents say it professionalizes the selection process.

Supporters of Tennessee's measure say the federal method puts the judicial nominating process in the hands of people selected by the voters. And, by adding retention elections, voters will get to directly choose whether to keep or fire the judges at the end of their terms.

But some worry Tennessee’s proposal will be a step backward, providing yet another platform for partisan politics. Getting rid of the merit system, warned the Washington D.C.-based advocacy group Justice at Stake, would open the door to a “Washington-style system that gives the Governor unilateral authority to pick judges, and subjects confirmations to DC-style gridlock and backroom deals.”

Politics is precisely what have some in Florida warning that a proposed constitutional amendment there could give an outgoing governor carte blanche to pack the Florida Supreme Court on his way out of office. In anticipation of three judges who are expected to retire at the beginning of 2019 just as a new governor’s term starts, the ballot measure proposes letting governors select a new judge once the retirement date of the outgoing judge is known.

Proponents have said that the plan avoids what could be a constitutional crisis in determining who gets to pick the next three judges. That's because those particular retirements would be effective on Jan. 8 -- but a new governor wouldn't be sworn in until later that day. However, opponents say the proposal is a Republican attempt to make sure Gov. Rick Scott gets to reshape the state's top court if he wins re-election this fall. (Scott would be term-limited and therefore Florida would have a brand new governor in 2019, the year at issue.) In one of several newspaper editorials against the measure, the Tampa Bay Times calls the proposal “unacceptable” and clearly partisan.

“Outgoing governors who are unaccountable to the voters should not decide replacements for justices as they pack to leave,” the Oct. 3 piece said. “That duty belongs to the man or woman just elected to lead for the next four years.”

Elections

New Mexico, which arguably has the most complicated judicial selection process in America because it subjects judges to first a merit selection then a general partisan election, is seeking to smooth out the process. Currently, sitting judges must announce by the state’s primary filing date in March whether they will seek another term. It means that judges must announce their retirement more than nine months before they step down at the end of the year.

The proposed amendment would remove that requirement and allow the legislature to set the filing date for judicial retention elections, presumably giving judges more time to decide on retirement. The measure passed unanimously in both houses of the state legislature. However in a pros and cons assessment, the New Mexico Legislative Council Service, warned that putting the filing date in the hands of lawmakers would give them the power to potentially manipulate retention election filing dates for partisan advantage.