Alexander Hamilton, in penning one of the Federalist Papers, was eloquent about the need for judges to be free of outside influences.
“...The independence of the judges,” he wrote, “may be an essential safeguard against the effects of occasional ill humors in the society.”
A proposal in the Nebraska Legislature is one of those ill humors.
Legislative Resolution 398 CA, introduced by Sen. Dave Bloomfield of Hoskins, calls for election of judges rather than appointment under the state’s current merit selection system.
Lawmakers would be wise to remember Hamilton’s advice and reject this idea. Electing judges would move Nebraska away from that needed independence, tying them to political campaigns and campaign donors.
Nebraskans added merit selection to the state constitution in 1962. The current system works.
A judicial nominating commission of four lawyers, four non-lawyers and a nonvoting Supreme Court justice holds a public hearing to interview candidates who apply. The panel submits at least two names of qualified attorneys to the governor, who makes the final choice. That judge faces a retention vote after more than three years in office and then every six years.
This system eliminates concerns about the impartiality of a judge who would be trying to raise campaign funds while also hearing cases.
The strongest argument for directly electing judges is to make them accountable to the people. But in Nebraska, the people are twice-represented in the process. The people’s choice for governor makes the appointments, and voters get to decide periodically whether judges stay on the bench.
As voters were considering this question back in 1962, a Nebraska Law Review article laid out several arguments for merit selection, including: eliminating “the necessity for a flurry of political activity at election time;” providing for a more knowledgeable selection of judicial nominees and better-qualified candidates; and freeing judges to concentrate on justice, not politics.
All good arguments then. All good arguments now. The verdict on LR 398CA should be “no.”