Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, July 3, 1994 TAG: 9407030063
SECTION: VIRGINIA PAGE: A8 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
DATELINE: LENGTH: Long
The rest of the nation, however, apparently believes otherwise.
Virginia is the only state to use legislative appointment as the sole method of naming its trial court judges, according to the National Center for State Courts in Williamsburg.
Rhode Island and South Carolina also select some judges through legislative appointment but allow others to be chosen by gubernatorial appointment or popular election.
The rest of the states elect judges in partisan or nonpartisan elections, or through a merit selection system in which a nominating commission screens candidates and forwards names to the legislature or governor for appointment.
Since 1950, all but one of the states that have changed their method of picking judges have switched to the merit selection process, according to Kate Sampson of the American Judicature Society in Chicago.
Twenty-three states currently use the merit selection process exclusively or combined with other methods.
The recent trend has been to move away from elections or legislative or gubernatorial appointments of judges. In those methods, Sampson said, "What's really missing, I believe, is any emphasis on what the person's personal and professional credentials are.
"They obviously have the political credentials."
Studies have shown that women and minorities have a better chance of becoming judges through a merit selection process, Sampson said, and that judges selected by merit are disciplined less often than those who run for office in elections.
A survey of Roanoke Valley lawyers conducted by the Center for Community Research at Roanoke College showed that 54 percent favored a switch to the merit selection process.
Thirty-three percent of the 265 lawyers responding to the survey wanted Virginia to keep its current system. Eleven percent thought elections were the best procedure, and 3 percent favored gubernatorial appointment.
Bills to create a merit selection process in Virginia have been presented frequently in the General Assembly, but with no success.
Del. Clifton "Chip" Woodrum, D-Roanoke, sees no reason to change the system in Virginia.
"`While it's not ideal, it's far, far better than systems I've seen in other states," Woodrum said.
"I don't see a whole lot of dissatisfaction among the lawyers and among the public at large in the way our judges are selected, or the way the judges in this valley apply the law."
If the state were to adopt a merit selection process, Woodrum said, Southwest Virginia might lose its voice in the process. The choosing of Roanoke judges could fall into the hands of a commission dominated by Richmond law firms and other established groups, Woodrum said.
"That's not taking politics out of it," he said. "That's changing the venue of politics and making it more certain that established groups have a say in it."
The merit selection system varies from state to state, but generally consists of a bipartisan commission composed of lawyers and non-lawyers appointed by the legislature or the governor. Once a candidate is approved by the commission and appointed, some states require him or her to run in a retention election. The judges do not face opposition in such elections, but voters have the option of removing them from the bench.
In the past, a merit plan for Virginia has been supported by the Virginia Bar Association, the Virginia Women Attorneys Association, and Harry Carrico, chief justice of the state Supreme Court.
"I remain of the firm belief that a change in the method we use to select judges is absolutely essential to ensure the continued high quality of the state's judiciary," Carrico wrote in Virginia's 1992 State of the Judiciary Report.
Most advocates for reform acknowledge that while the current system is flawed, it still produces excellent judges most of the time.
"I don't sense there is anything bad about the system, but I feel the time the public gets a little suspicious is when judgeships go to ex-legislators," said Fred Hodnett, assistant executive secretary of the state Supreme Court.
"That gives definition to the closed society," he said.
One catalyst for change could be the possibility that Republicans will take control of the House of Delegates or the Senate, after making gains in recent elections. As long as Democrats have been in control of both houses, they have seen little incentive to change a process they control.
"If the Republicans gain control of one house, and the Democrats are still a majority in the other, then I see gridlock," Hodnett said. "I don't see that helping at all."
Del. Morgan Griffith of Salem, who as a Republican has no say in the current process, said he would like to see some sort of reform if Republicans gain power. But it may not happen right away, he said.
"I think we're going to wait to put some qualified people on the bench who have been disqualified in the past because of their association with the Republican Party," Griffith said.
Although judicial selection is controlled by one party, politics has little to do with decisions that trial judges are asked to make once they reach the bench.
"If you're the best judge, your political party should not make a difference," Griffith said.
If a merit selection process is not likely to come to Virginia any time soon, a switch to popular elections seems an even more remote possibility.
"You don't want judges going out and having to make a lot of campaign promises to get elected," said Charles Arrington, executive vice president of the Virginia Bar Association.
"We have separation of powers for a reason. In a legislative body, you want to be subservient to the popular will, at least in a broad way," Arrington said. "The judges, you want to be apart from the popular will. They're not supposed to be sitting there reading election returns to decide how to rule on a case."
Opponents of judicial elections also point out the appearance of impropriety when campaign contributors - be they attorneys or defendants - appear in court before judges they supported.
Others say the same problem exists in Virginia, with legislators who are also lawyers arguing cases in front of the judges they appoint.
In the survey, 36 percent of the lawyers thought such a practice improper. Another 41 percent said while there was nothing wrong with it, it still creates a perception of impropriety.
Although judges are up for reappointment by legislators every six or eight years, it is rare for a sitting judge to lose his job.
Some lawyers say that creates the danger of judicial arrogance - "the feeling that they are anointed instead of appointed," as one put it - that would be eliminated by having elections.
"At least the citizens which the judges serve could evaluate how they are doing their job" with elections, Roanoke Commonwealth's Attorney Donald Caldwell said.
"I stand on my record every four years, and I don't have a lot of sympathy for people who say they shouldn't have to stand on theirs," Caldwell said.
"If they're doing their jobs, the public will vote for them."
by CNB