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In a recent article in the Reno Gazette Journal, Retired Nevada Supreme Court Chief Justice Rose recently commented regarding the election of judges in our state versus the appointment of judges. Pennsylvania has even picked up the story and is using Chief Justice Rose's commentary to bolster their argument for 'merit based appointment' in their state. It appears that he is defending the current practice of Judicial Appointment and hopes that its expansion becomes permanent via a 2010 proposed amendment to the Nevada Constituion. We disagree.
We have great respect for Chief Justice Rose. As well, he makes some very important points in his response to the RGJ's editorial, where in they refer to the Judicial Selection Commission as "elitists". The issue needs continuous debate. I think we all agree, the current system's hunger for money to keep it moving, in part, drives the corruption. However, an individual's drive for power, while generally coming from the same ilk, creates the same corruption. Maybe Chief Justice Rose is still too deep in that side of the pool to see that power is a great corruptor, too. Therefore, sir, I am commenting on some of your points, Chief Justice Rose.
The following, in red, are my thoughts & opinions relevant to some of Chief Justice Rose's commentary.
Bob Rose: Nevada's Judicial Selection Commission has a proven track record July 26, 2009 06:14 AM
Thank you for your recent editorial about the proposed change in how Nevada elects its judges, but it needs additional comment [Voices, July 15].
The first is the editorial inaccurately calling the Nevada Judicial Selection Commission an "elitist" organization, and the second is not fully recognizing the importance of money in the present election system and the difficulty in regulating campaign contributions. I agree with you fully. The NJSC are not 'elitists', they are 'biased'. They do not choose candidates that are most qualitied all the time. The whole purpose of the NJSC is to ensure that a Nevada Governor does not take over the Judiciary by party-based appointments, resulting in unqualified and biased judges. As well, the effect of money is daunting. However, you are attacking that problem from the wrong direction. We need to take judges away from contributors and the corruption money will shut off.
The Nevada Judicial Selection Commission has been in operation for more than two decades and selects three candidates to be considered for appointment by the governor when an in-term judicial vacancy occurs. If we go through the list of judges, we can see that many, if not most, of the judges, at least in Clark County, were initially appointed. Once appointed, a Judge is nearly impossible to unseat, given the campaign contribution issue that you site.
The commission has a balanced membership from all areas of the state, Republicans and Democrats, and half are non-lawyers. While 'balanced', they are 'biased'.
They are usually community leaders who are willing to perform this major public service for little compensation.
Members receive more information about the candidates that voters do (health, financial and bar association records) and spend days reviewing the information in the selection process. Agreed.
Calling these members "elitists" is both false and unfair to people who have spent a lot of time doing a thankless job. Agreed.
Your editorial assumes that the merit selection process is dripping with politics, but I have not found that to be the case. The commission works hard to select the three best qualified candidates, and the governors have in good faith tried to pick the best. And even if a governor wants to "play politics," the choice is restricted to three qualified candidates. As I have said numerous times on this Blawg, the problem is not balance, the problem is 'bias'. Certainly these people dedicate their time and 'connections' to review the judicial candidates and provide the pool of 3 that they feel will best serve Nevada. I fully agree that they have more information at their fingertips to assess judicial candidates, than the voters. As well, I'm sure they ONLY spend 'days' reviewing this information. But, sir, to presume that the NJSC is not 'political' is certainly not truthful. I believe that some of the persons appointed to the NJSC are genuine in their endeavors. However, they do 'play politics' themselves. If such were not the case, many of the candidate pools would look differently. I have watched candidates apply for the pool of 3 to go to the Governor, for decades. I personally have never applied to be part of that pool. Quite often, the most qualified candidates never make it to the pool of 3.
On the other hand, money plays an enormous role in the present process of electing judges and it is impossible to effectively regulate it. First, no restriction can be placed on a candidate's use of his or her own money -- this the U.S. Supreme Court has clearly stated.
The candidate with more money will always have a great advantage in an election. True. I agree that money is a central corruptor to the process, but it is not the only corruptor. You are discounting the effect of 'connections' and 'power' in Nevada. In fact, the money is generally tied to the 'connection' and the 'power'. You assess this point as though money is the only problem with a simple fix, get rid of the election. Your logic would be correct if there were not other variables, however, the desire to centralize and maintain control over certain aspects of the judiciary keeps the appointment pool controlled. Nevada needs to get rid of the motivation for corrupt contributions and limit the amounts, not scrap the system. As you say, we should not 'throw our hands up' and give up on the system. Elections work. Though, changes need to be made to get rid of the corruptors.
You have to look no further than last fall's election where Washoe County's candidate for the state Supreme Court, Judge Deborah Schumacher, lost largely because her Clark County opponent was able to put more than $600,000 of her own money into her own race and Judge Schumacher was not able to match this personal spending. This is a very misleading statement. The fact that Judge Schumacher lost the race had more to do with popularity than money. This was neither a power or a money matter. This issue is a Washoe vs. Clark matter. There is not a solution to this dispute.
Further, no restriction can be placed on private groups or individuals unconnected with the candidates from running their own campaign for or against a candidate. Remember the "Swift Boat" ads in the 2004 presidential race? These exceptions to campaign donation regulation make it impossible to fashion any equitable "apply to everyone" legislation. Agreed. Excellent point, sir. However, these matters can be addressed in Nevada. Contributions can be controlled. The current recommendation to the Nevada Supreme Court to allow up to $50,000 in these types of contributions is proposterous. The solution here is to discuss the 'recusal' of judges and strengthen the recusal standards. This will turn off the corruption money. Judges generally don't want to recuse themselves from cases because it will hamper their ability to raise money and it gives the appearance that they are biased. The truth is that they are biased when it comes to keeping their job and raising money. As a result, a Judge's opinion is generally to get rid of elections once they are on the bench. But, if we were to force recusal for large contributions and maintain a 'true cap' of $10,000, we would not have the private contributions that currently exist and the Judges would not be blamed for 'bias'. They would be forced to recuse and the system would be able to maintain more objectivity.
I do agree that there is no perfect way to select judges, but we should not throw our hands in the air and quit trying to improve the system. Using the merit selection process to fill all judicial vacancies (in-term and full-term openings) would give us a system that has been proven in Nevada over the past two decades, and one where money is not the dominating factor in the process. Once again, I must disagree. The current system is a hybrid of election and appointment. The appointment system has only worked for those that have been appointed. We have gained many great judges via the election system, judges that would likely have never been appointed. Certainly, we have also gained great judges via the appointment system that would have never been elected. However, both systems have brought upon us horrible inconsistencies, incompetencies, bias and corruption. The cure in my opinion is, as stated before, a 3-prong approach, that I believe respectfully solves both of our concerns regarding money and bias.
1. Stiffen Judicial Cannons to restrict appearances by attorneys, parties & judicial candidate opponents when they contribute to the campaigns of judges in any significant manner or when they challenge the seated judge;
2. Provide Judicial Evaluations of ALL Nevada judges on a yearly basis (or every other year ensuring an evaluation is completed in the year of any election);
3. Once a judge is elected or appointed to fill a vacancy, have a retention election after the first 2 years of their seating, with a mandatory 55% approval, or be dismissed. If the judge runs unopposed in any future elections, institute a mandatory retention election whereby the judge must again receive a 55% approval or be dismissed.
I don't suggest a change in the appointment system to fill vacancies, I believe these changes would address the motivators of corruption while leaving the current hybrid system in place (election & vacancy appointment).
Justice Rose, thank you for your service to Nevada & your participation in joining the debate on this topic.
Bob Rose is retired chief justice of the Nevada Supreme Court.
.
In a recent article in the Reno Gazette Journal, Retired Nevada Supreme Court Chief Justice Rose recently commented regarding the election of judges in our state versus the appointment of judges. Pennsylvania has even picked up the story and is using Chief Justice Rose's commentary to bolster their argument for 'merit based appointment' in their state. It appears that he is defending the current practice of Judicial Appointment and hopes that its expansion becomes permanent via a 2010 proposed amendment to the Nevada Constituion. We disagree.
We have great respect for Chief Justice Rose. As well, he makes some very important points in his response to the RGJ's editorial, where in they refer to the Judicial Selection Commission as "elitists". The issue needs continuous debate. I think we all agree, the current system's hunger for money to keep it moving, in part, drives the corruption. However, an individual's drive for power, while generally coming from the same ilk, creates the same corruption. Maybe Chief Justice Rose is still too deep in that side of the pool to see that power is a great corruptor, too. Therefore, sir, I am commenting on some of your points, Chief Justice Rose.
The following, in red, are my thoughts & opinions relevant to some of Chief Justice Rose's commentary.
Bob Rose: Nevada's Judicial Selection Commission has a proven track record July 26, 2009 06:14 AM
Thank you for your recent editorial about the proposed change in how Nevada elects its judges, but it needs additional comment [Voices, July 15].
The first is the editorial inaccurately calling the Nevada Judicial Selection Commission an "elitist" organization, and the second is not fully recognizing the importance of money in the present election system and the difficulty in regulating campaign contributions. I agree with you fully. The NJSC are not 'elitists', they are 'biased'. They do not choose candidates that are most qualitied all the time. The whole purpose of the NJSC is to ensure that a Nevada Governor does not take over the Judiciary by party-based appointments, resulting in unqualified and biased judges. As well, the effect of money is daunting. However, you are attacking that problem from the wrong direction. We need to take judges away from contributors and the corruption money will shut off.
The Nevada Judicial Selection Commission has been in operation for more than two decades and selects three candidates to be considered for appointment by the governor when an in-term judicial vacancy occurs. If we go through the list of judges, we can see that many, if not most, of the judges, at least in Clark County, were initially appointed. Once appointed, a Judge is nearly impossible to unseat, given the campaign contribution issue that you site.
The commission has a balanced membership from all areas of the state, Republicans and Democrats, and half are non-lawyers. While 'balanced', they are 'biased'.
They are usually community leaders who are willing to perform this major public service for little compensation.
Members receive more information about the candidates that voters do (health, financial and bar association records) and spend days reviewing the information in the selection process. Agreed.
Calling these members "elitists" is both false and unfair to people who have spent a lot of time doing a thankless job. Agreed.
Your editorial assumes that the merit selection process is dripping with politics, but I have not found that to be the case. The commission works hard to select the three best qualified candidates, and the governors have in good faith tried to pick the best. And even if a governor wants to "play politics," the choice is restricted to three qualified candidates. As I have said numerous times on this Blawg, the problem is not balance, the problem is 'bias'. Certainly these people dedicate their time and 'connections' to review the judicial candidates and provide the pool of 3 that they feel will best serve Nevada. I fully agree that they have more information at their fingertips to assess judicial candidates, than the voters. As well, I'm sure they ONLY spend 'days' reviewing this information. But, sir, to presume that the NJSC is not 'political' is certainly not truthful. I believe that some of the persons appointed to the NJSC are genuine in their endeavors. However, they do 'play politics' themselves. If such were not the case, many of the candidate pools would look differently. I have watched candidates apply for the pool of 3 to go to the Governor, for decades. I personally have never applied to be part of that pool. Quite often, the most qualified candidates never make it to the pool of 3.
On the other hand, money plays an enormous role in the present process of electing judges and it is impossible to effectively regulate it. First, no restriction can be placed on a candidate's use of his or her own money -- this the U.S. Supreme Court has clearly stated.
The candidate with more money will always have a great advantage in an election. True. I agree that money is a central corruptor to the process, but it is not the only corruptor. You are discounting the effect of 'connections' and 'power' in Nevada. In fact, the money is generally tied to the 'connection' and the 'power'. You assess this point as though money is the only problem with a simple fix, get rid of the election. Your logic would be correct if there were not other variables, however, the desire to centralize and maintain control over certain aspects of the judiciary keeps the appointment pool controlled. Nevada needs to get rid of the motivation for corrupt contributions and limit the amounts, not scrap the system. As you say, we should not 'throw our hands up' and give up on the system. Elections work. Though, changes need to be made to get rid of the corruptors.
You have to look no further than last fall's election where Washoe County's candidate for the state Supreme Court, Judge Deborah Schumacher, lost largely because her Clark County opponent was able to put more than $600,000 of her own money into her own race and Judge Schumacher was not able to match this personal spending. This is a very misleading statement. The fact that Judge Schumacher lost the race had more to do with popularity than money. This was neither a power or a money matter. This issue is a Washoe vs. Clark matter. There is not a solution to this dispute.
Further, no restriction can be placed on private groups or individuals unconnected with the candidates from running their own campaign for or against a candidate. Remember the "Swift Boat" ads in the 2004 presidential race? These exceptions to campaign donation regulation make it impossible to fashion any equitable "apply to everyone" legislation. Agreed. Excellent point, sir. However, these matters can be addressed in Nevada. Contributions can be controlled. The current recommendation to the Nevada Supreme Court to allow up to $50,000 in these types of contributions is proposterous. The solution here is to discuss the 'recusal' of judges and strengthen the recusal standards. This will turn off the corruption money. Judges generally don't want to recuse themselves from cases because it will hamper their ability to raise money and it gives the appearance that they are biased. The truth is that they are biased when it comes to keeping their job and raising money. As a result, a Judge's opinion is generally to get rid of elections once they are on the bench. But, if we were to force recusal for large contributions and maintain a 'true cap' of $10,000, we would not have the private contributions that currently exist and the Judges would not be blamed for 'bias'. They would be forced to recuse and the system would be able to maintain more objectivity.
I do agree that there is no perfect way to select judges, but we should not throw our hands in the air and quit trying to improve the system. Using the merit selection process to fill all judicial vacancies (in-term and full-term openings) would give us a system that has been proven in Nevada over the past two decades, and one where money is not the dominating factor in the process. Once again, I must disagree. The current system is a hybrid of election and appointment. The appointment system has only worked for those that have been appointed. We have gained many great judges via the election system, judges that would likely have never been appointed. Certainly, we have also gained great judges via the appointment system that would have never been elected. However, both systems have brought upon us horrible inconsistencies, incompetencies, bias and corruption. The cure in my opinion is, as stated before, a 3-prong approach, that I believe respectfully solves both of our concerns regarding money and bias.
1. Stiffen Judicial Cannons to restrict appearances by attorneys, parties & judicial candidate opponents when they contribute to the campaigns of judges in any significant manner or when they challenge the seated judge;
2. Provide Judicial Evaluations of ALL Nevada judges on a yearly basis (or every other year ensuring an evaluation is completed in the year of any election);
3. Once a judge is elected or appointed to fill a vacancy, have a retention election after the first 2 years of their seating, with a mandatory 55% approval, or be dismissed. If the judge runs unopposed in any future elections, institute a mandatory retention election whereby the judge must again receive a 55% approval or be dismissed.
I don't suggest a change in the appointment system to fill vacancies, I believe these changes would address the motivators of corruption while leaving the current hybrid system in place (election & vacancy appointment).
Justice Rose, thank you for your service to Nevada & your participation in joining the debate on this topic.
Bob Rose is retired chief justice of the Nevada Supreme Court.
.
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