Judicial Appointment Debate Rages On In Indiana & Pennsylvania, Not Just Nevada

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In a recent article on JournalGazette.com, there is an interesting editorial about judicial elections and appointments. It appears that much of the Indiana judicial election system is similar to us here in Nevada. However, they do allow party affiliation in some counties. The current system used in the Hoosier State is strikingly similar to our Nevada hybrid system wherein judges are elected, but appointed when a vacancy exists outside the regular cycle of the election.

The does breed a type of 'norm' by the judges to allow for appointment to flurish over the elections in Nevada. It appears to be the same in Indiana as, "[m]ore telling, many judges retire midterm, when their successor will be appointed. Allen County has a judicial nominating commission that examines applications and submits three names to the governor, who appoints the judge. While potential exists for the governor to make blatantly partisan appointments, that has seldom occurred. If this system became the statewide model, lawmakers could also require retention votes, giving citizens an opportunity to remove judges." (JG)

This argument is the basis for proponents of a 'merit based' selection system, such as JudgesOnMerit.org, as they make hay in PA about judicial appointment and the Nevada legislature as they are trying to amend the Nevada Constitution to do away with the judicial election system, citing the incompetence of the electorate.

What these proponents of the abolition of judicial election system fail to debate and discuss is the TRUE fact that many, if not most, of our judges are already appointed on a 'merit based' system. Thus, changing our system to that of a complete judicial appointment system would only further singularize the already centralized power structure of the judiciary, further into the hands of the very few with literally no recourse by the public, except in limited retention elections. What the public is being denied is 'choice'. Grassroots efforts will be decimated and candidates for changing and challenging the current structure will shrivel off and die.

One of the most successful demonstrations of the election system creating positive change in recent years was the campaign of Jackie Glass here in Clark County. She ran a campaign against Judge Sobel and exposed him for his many incompetencies. The public would have never seen this without the election process. Judge Glass was elected and Judge Sobel was unseated. Notably a very difficult task in Nevada to unseat a judge, but Judge Glass had the support and the resources. In this situation the system worked.

The problem in her win was that she had to raise $400,000 and loan herself over $150,000 to do it. (RJ). Then, post election she peddled the legal community to pay her for her win, which is common place here in Nevada and what is often referred to as "Retire the Debt" post election parties. That is when you show up and pay, if you want to play later in the courthouse. (RJ). The up side to all this, though, is that Judge Glass is a GREAT judge and shows little to no signs of bias.

"David Sarnowski, general counsel to the Judicial Discipline Commission and the executive director of the Standing Committee on Judicial Ethics and Election Practices, said he believes many candidates, aside from just judicial candidates, try to retire debt post election.

'I think it is fairly common that they have run up all this debt and now need to retire it within the confines of the law,' Sarnowski said." (RJ).

It is not often that this kind of an upset will happen. The fact that this took so much money is off-putting. Judge Glass also had tremendous support from many of the Las Vegas insiders, though. So that is likely how she got the money and the votes. However, the fact that Glass raised so much money is, in part, why the proponents for Judicial Appointment have gained so much steam. Judges don't want to have to raise so much money and deal with the 'bias' issue & frankly they should not have to deal with this issue. It should be taken from them via strict recusal canons. Notwithstanding, the proponents of Judicial Appointment still refuse to address the fact that appointment will bring its own unique challenges. The source of the problem is not solved, only centralized.

In retention elections, the judges will still have to ask for money and will try to bolster their image through the media, though no one will be there to challenge their assertions about themselves and expose the 'spin'. The public will be bowled over like France in World War II, but they won't know it's happening.

So, once again all, I suggest the following to address the judicial appointment v. judicial election debate:

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.

The source of the bias must be removed, not the input from the public.
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