The Solution To The Debate Over Nevada's Judicial Appointments v. Judicial Elections

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I read an Associated Press article published today in the San Diego Union-Tribune. It makes some very good points, via intelligent quotes, relevant to Nevada's Judicial Appointment v. Judicial Election debate. The more we talk about this, the more it looks like it may be what we mostly talk about for the next 18 months.

The Article states:

Statewide, 64 percent of the judges who sought re-election in 2008 were unopposed, Nevada Supreme Court Chief Justice James Hardesty said.

"That is the worst form of rubber-stamped Democracy, to look at a ballot and see only one name," Hall said. "It leaves the voter with no power at all."

Under the proposed Nevada system, judges would have to undergo an evaluation and appear on the ballot within two years of being appointed. They also would have to garner at least 55 percent of the vote to remain on the bench.

Eric Herzik, chairman of political science department at the University of Nevada, Reno, opposes the committee system.

"You're trading one set of bias for another," he said. "You'll end up with a system that favors hometown judges, graduates of the state law school who are well-connected, known commodities, as opposed to a judge who is not involved with the local judicial establishment."
(Emphasis added)

Commentary:

Exactly!! Only thing is, we already have a "system that favors hometown judges...[judges that] are well-connected," and judges that are "known commodities" to insiders.

Nevada is seeking to trade one set of problems for a potentially worse set of problems. 'Potentially worse' because the result of the trade changes nothing except increasing the power of the Governor. How that power will be used is mostly unknown. The current system of judicial election certainly needs to be fixed. This opportunity for Nevada's desired change, emboldened by the Halverson debacle, is not bringing forth proponents of 'justice'. The forces at work here are purely political. If Nevada were truly seeking to rid the legal system of 'bias', then we would make the necessary changes to the current system that achieves that objective. Instead, we are seeking to 'horse trade' our current system for another system that drips 'bias' from head to toe. Any argument to the contrary is an merely an attempt to further political, self-serving objectives, while masking those objectives as 'justice'.

Our great state of Nevada can effect change by seeking to remove the 'bias' from the judiciary. It is not really all that difficult, procedureally. We just need to remove the incentives that are creating the 'bias'. Getting the Legislature to do what the voters want, or getting the judges to enact cannons that restrict their campaign contributions, is much more difficult.

The citizens' respect and trust in the judiciary is paramount to the efficacy of 'justice' in Nevada and all over the Country. The U.S. Supreme Court maintains that "judicial integrity" is "a state interest of the highest order," because of the necessity for respect and trust by the citizenry. Due to such a need to promote "judicial integrity," the U.S. Supreme Court places the burden upon the States in choosing to "adopt recusal standards more rigorous than due process requires." See also Bracy v. Gramley, 520 U. S. 899, 904 (1997). As a result, the repair of the current Judicial Election system is not so simple as changing to an 'appointment' system. Remember, in the current system, there are more judges that were initially Judicial Appointments than there are judges that were elected into the system. So, it is nothing short of 'bias' or 'ignorance' that suggests that Judicial Appointment will save the day.

The State of Nevada must focus on a 3 prong 'fix' for the Nevada Judiciary if they truly seek to remove 'bias' from the judicial system:

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 problem we currently face in removing 'bias' is that the fight is not for 'justice' in Nevada. That is the cloak. The attorneys and judges, though never openly, want the 'bias' to exist. It is generally how they get their clients and generally how they got on the bench. The fight for the Nevada Judiciary is between one group of insiders (the Nevada "connected" that has the ability to raise large sums of campaign money) and the other group of insiders (the Nevada "politicals" that have political power through connection and party affiliation). Both groups want access to the judiciary by the means that they have available to them. Though, each group has developed their ties to power through different connections. There is some overlap.

It is long known that the power of the judiciary in Nevada is stronger than the Legislature or even the Governor. The judges last longer on the bench, they have longer terms, they are largely unopposed in elections (out of fear by attorneys), they are larger in number (per capita) and they make daily decisions that force the judiciary into the center of all developments in the State. This debate should be about removing the 'bias' from the judiciary and restoring 'judicial integrity'. I feel like, as voters, we are the "monkey the middle". Did you evey play that game? The ball is being thrown back and forth between the bigger kids and we have no chance of ever getting the ball. All we can ever hope for is to jump around in the middle, scream and yell and eventually quit the game. Maybe, if we're lucky, one of the big kids will drop the ball.

Unfortunately, I predict the debate will center on the only two options given to the electorate: keep the current system or trade it for another biased one. The debate will continue to point out how each system is corrupt, the voters will become increasingly disenfranchised with the process and in the middle of all of this mess, Nevada will permanently kill off any hope for 'judicial integrity'.

Nevada should reject the Amendment to the Constitution in 2010 and push for changes to the current system. Horse trading only ever gets you another horse. If you want a car, you have to throw that into the negotiation.
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