Another Push Towards Reforms in Judicial Selection, Evaluation and Retention - The Writ

Under Nevada’s Constitution, the justices of the Supreme Court and the judges of the court of appeals and district courts are popularly elected. Only when a vacancy occurs before the expiration of any term does the Governor appoint a justice or judge from among nominees selected by the Commission on Judicial Selection. Nevada’s current system of electing judges has long been a source of consternation for the legal community. While judicial elections theoretically hold judges accountable to the public, they come with pitfalls that undermine the judiciary and the public’s confidence in the judicial system.

 First, the role of money in judicial elections can make a judge beholden to an individual donor or a specific constituency that lent financial support to a campaign. At a minimum, contributions create an appearance of bias and put a strain on the bar, where lawyers feel they have no choice but to contribute. Judicial elections are becoming increasingly expensive, and the name recognition that comes with incumbency makes it difficult for newcomers to challenge sitting judges.

Second, elections do a poor job of vetting candidates’ qualifications. Unlike a judicial selection process, elections do not allow the public to learn important aspects of a candidate’s background that would be available through references checks, credit reports, tax filings, or other resources that shed light on the candidate’s ability to serve. Judicial selection involves information gathering and interviews with current and former colleagues that create a more complete picture of a candidate’s fitness for the position.

Third, the electorate generally lacks the legal training necessary to assess whether a candidate has the necessary skills to interpret laws correctly, fairly and consistently. Because voters are less likely to be familiar with judicial candidates, they may make their decisions based on the number of billboards, ads and yard signs they see, rather than a candidate’s competency.

Finally, judicial elections discourage judges from making politically unpopular decisions, even if required by the law. A judge may be punished in the next election for acting in accordance with the judicial oath, while a judge who succumbs to public pressure may be rewarded at the ballot box.

Compounding these challenges is that Nevada has no judicial evaluation system. Although the Washoe County Bar Association and the Las Vegas Review Journal conduct judicial performance surveys, no comprehensive process exists to solicit the feedback of lawyers, staff, or the judges themselves regarding how each judge is doing. Judges are left to guess whether they are doing a good job, and absent meaningful input, there is no opportunity to improve upon shortcomings in performance.

These problems are nothing new, and there have been multiple past unsuccessful efforts to address them. However, a constitutional amendment requires passage in two successive legislative sessions followed by voter approval. And Nevada voters have been reluctant to give up their control over electing judicial candidates.

Nevertheless, a new push to adopt merit selection of judges, proposed by a group of appellate practitioners working in coordination with Justices Hardesty and Parraguirre, is currently underway in the Legislature. The group reviewed extensive materials relating to judicial selection from the National Center for State Courts, the American Judicature Society, the State Justice Institute and The Brennan Center for Justice. Through numerous meetings in which the group discussed models used in other states and weighed the benefits and dangers of various systems, it ultimately concluded that a structure for judicial appointment that includes appropriate checks and balances is preferable to judicial election.

Building on SJR 2 from 2008 and the work done by the Nevada Supreme Court’s Article 6 Commission, which issued a report in 2009 regarding a judicial evaluation pilot project, the group drafted what is now Assembly Joint Resolution 9. The proposal creates two 17-member commissions – one for judicial appointment and the other for judicial performance evaluations – that would be appointed by the Governor and both houses of the Legislature. Judges would be periodically evaluated based on multiple factors, including their knowledge, communication skills, temperament, and work ethic. Those who obtain a 75% “super-majority” approval of the performance evaluation commission would be automatically reappointed (for a maximum of four 6-year terms). Those that fail to achieve at least a 50% approval would not be eligible for re-appointment, and those who fall in between can choose to apply for reappointment.

A work session on AJR 9 occurred in the Assembly Committee on Legislative Operations and Elections on April 9, 2019. The Nevada Attorneys for Criminal Justice suggested an amendment that would require confirmation of any judicial nominees by the State Senate and regular retention elections by the public. However, the group advocating for AJR 9 considered, but ultimately rejected, retention elections as being perhaps more problematic than the current system. Retention elections can spur special interests who are upset with particular decisions to mount campaigns that target judges who decide controversial issues, leading to precisely the sort of conflicts and corrupting influence that the appointment process is meant to prevent. They also can create the situation where a candidate is unable to garner the necessary retention votes because of voters’ tendency to check the “none of the above” option that appears on Nevada’s ballot.

 As of the time of this writing, the Legislature’s consideration of AJR 9 is in its early stages. More information is available at: https://www.leg.state.nv.us/Session/80th2019/Reports/history.cfm?ID=1090