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The Alabama State Bar has drafted legislation for a constitutional amendment that does away with partisan elections for the state’s appellate judges, but it won’t get on the ballot if the state’s Republican Party gets its way. The clash comes in a state that has led the nation in supreme court election fund raising since 1993-$41 million-according to data provided by Justice at Stake and the Institute on Money in State Politics, two nonpartisan election watchdog organizations. About half of the states and the American Bar Association say merit selection is the way to go. Alabama and the eight other states that use partisan elections to choose at least some of their appellate judges repeatedly have failed in efforts to change to merit selection. In Alabama, Republicans hold all nine seats on the high court and nine of 10 on the two intermediate appellate courts. In the past, when the situation was reversed, Democrats preferred the status quo. Democrats have a majority in both legislative bodies. It would take a three-fifths vote to put the measure on the ballot. “It seems here that whichever party is in the ascendancy has taken a dim view of changing the method of the selection process,” said Keith Norman, executive director of the Alabama Bar Association. ‘Embarrassing’ elections Mark White of Birmingham, Ala.’s White Arnold Andrews & Dowd, an avowed independent, supports the proposed legislation. “We have had, unfortunately, a long history of contentious, expensive and embarrassing, for lack of a better word, judicial campaigns at the appellate level,” he said. Since Missouri led the way to merit selection in 1940, no state that has adopted merit selection by statute or constitutional amendment has gone back to partisan elections. “Merit selection blends the best parts of both judicial independence and accountability,” asserted Rachel Paine Caulfield, the American Judicature Society’s Research and Program Consultant for the Hunter Center for Judicial Selection, and a professor of politics at Drake University in Des Moines, Iowa. Not so, said Twinkle Andress Cavanaugh, chairman of the Alabama Republican Party, who asserted that merit selection is undemocratic. “There is no better form of accountability for the judiciary than direct elections,” asserted Cavanaugh. “What they’re proposing is that a committee of nine choose our judges . . . .They think they would do a better job than the people would do. It would be the height of back-room politics.” Some states, like Alaska, use merit selection with nominating commissions for all court levels. Nominating commissions are meant to be broad-based and independent panels of lawyers and nonlawyers. Commissions seek out and evaluate qualified candidates and present a short list to an appointing authority. Appointments must be made from the list, and in some states, for some courts, ratification by the legislature is required. At the end of their terms, in most states, these judges either face retention elections, with no other candidate on the ballot, or are subject to reappointment. Merit selection is known as the “Missouri Plan.” The advantages it offers, proponents say, is that judges do not have to raise money to run in elections, and political parties cannot place candidates on the ballot as a reward for political service. While Alabama has seen $41 million spent on state high court elections since 1993, Texans spent the second most, $27 million, in the same time period. “The 1990s is when judicial campaign spending exploded,” said Justice at Stake spokesman Jesse Rutledge. In sharp contrast, state supreme court retention elections held nationwide in 2004 recorded expenditures of less than $100,000, he added. Most states use various selection methods, depending on the type of judgeship. These include partisan and nonpartisan elections, gubernatorial or legislative appointments-without or with a nominating commission-and hybrids that combine these methods.

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