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When Texas’ Chief Justice Thomas Phillips first circulated the idea last year of convening a summit of chief justices to discuss reforming judicial elections, he envisioned a small, private meeting that no one would notice. But that was before the intense post-election spotlight focused on the Florida Supreme Court, whose members are first appointed by the governor but then must go before the voters in retention elections. It was also before judicial election campaigns in Ohio, Michigan, and elsewhere reached new levels of partisanship and expense. In short, it was before the public paid much attention to who serves as state judges and how they got there. Now, Phillips says, major portions of the summit sponsored by the National Center for State Courts scheduled for Dec. 8 and 9 in Chicago will be public, and he is spending much of his time turning away people who want to come. Attendance has been limited to delegations from the 18 biggest states with some form of judicial elections. “Judicial elections have really come into the national spotlight,” Phillips said in a pre-summit interview. “It was always a local problem, but now it seems to have been nationalized, and it calls for a national discussion.” But Phillips is quick to add that the discussion will focus on ways to improve the current elective systems in place in 30 of the 50 states — not on whether elections should be scrapped altogether. Professor Roy Schotland of Georgetown University Law School, the main organizer of the summit, says, “We can’t put our energy into that debate anymore. The fact is, several of the people there support elections, so if we debate it, they will be divided.” Phillips adds that such a discussion would distract participants from more achievable reforms. “In 200 years, we have never had a consensus on how to select judges,” Phillips says. Most judicial reform advocates have given up on convincing voters to shift from election to merit selection, a term proponents use for a system in which judges are appointed, usually by a governor, after consultation with a nonpartisan nominating commission. Judges are subsequently reappointed or stand for up-or-down retention elections without opponents. Only one state — Rhode Island — has gone toward merit selection in the last 20 years. At that rate, says Schotland, “It will take only about 770 years for the nation to stop electing judges.” The latest sign that the public prefers electing judges came on Nov. 7 in Florida. The same Florida voters who were so closely divided over who should be the next president spoke with resounding clarity on this issue. As a result of an earlier ballot measure, voters county by county were given the choice of having their trial judges appointed by the governor or elected by voters in the future. By nearly 2-1 in all 67 counties, voters chose to stick with elections. “The reaction was, ‘It’s my constitutional right,’ and folks in Florida began to sound like the NRA people who say ‘You’ll have to pry it out of my cold, dead hands,’ ” says Alfred Carlton Jr., of Raleigh, N.C., who participated in voter forums on the issue in Florida as head of an American Bar Association committee on judicial independence. POLITICAL ANIMALS? Significant opposition to merit selection in Florida came from minority and civil rights groups, Carlton said, because of the widely held view that minorities have a better chance to become judges through election than through appointment — a view that is not supported by statistics, Carlton says. “The results in Florida tell us we have to go beyond merit selection and formulate a new paradigm,” says Carlton. “We still support merit selection, but the term has become politically charged and muddled. People don’t know what it is.” The better-known Election Day happenings in Florida are also instructive in the debate over judicial selection. In the days before the crucial Florida Supreme Court hearing over the hand recount of presidential ballots, analysts endlessly dissected the political pedigree of the court’s seven justices. Which governor appointed them? What, if any, political donations have they made over the years? Even merit-selected judges, it is clear, are viewed as political animals. But through two hours of questioning on Nov. 20, the Florida Supreme Court passed the test of impartiality, some reformers say, and should serve as a symbol of the virtues of merit selection. “What a wonderful public education to see this court in action and see it being scrupulously fair,” says Virginia Sloan, executive director of The Constitution Project, which works for judicial reform. She still holds out hope for a shift in public opinion toward merit selection. “We shouldn’t give up on it. Nobody said it would be a short-term campaign.” HEY, BIG SPENDERS Beyond Florida, judicial elections gained national attention in large part because of record levels of campaign spending and advertising. “Incredible amounts of money were spent on incredibly ugly campaigns,” says Seth Andersen, who monitors judicial selection for the American Judicature Society. “It was an ever-escalating arms race,” adds Carlton. The U.S. Chamber of Commerce spent nearly $7 million for judicial elections this year-mainly, it said, to counter the traditional influence of trial lawyers in judicial campaigns. Campaign spending by business groups failed to unseat Ohio Supreme Court Justice Alice Robie Resnick despite an unusually negative campaign against her, but helped in retaining three pro-business Michigan Supreme Court justices, Stephen Markman, Clifford Taylor, and Robert Young Jr. The Michigan Supreme Court race was highly partisan, with several of the incumbents campaigning at the side of Texas Gov. George W. Bush. In a post-election column for the Detroit Free Press staff writer Brian Dickerson asked rhetorically, “What if it had been Michigan, not Florida, that had been chucked back into the undecided column?” He suggested that any decision by the Michigan Supreme Court on a presidential recount would have been tainted because of the partisan nature of the campaign. At the Chicago summit, chief justices will be joined in some cases by top legislators from their states to discuss possible campaign reforms that are achievable given the public sentiment evidenced in this year’s elections. The states represented are California, Florida, Georgia, Illinois, Indiana, Louisiana, Maryland, Michigan, Minnesota, Missouri, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Texas, Washington, and Wisconsin. Phillips will be urging redoubled efforts by bar groups and others to educate voters during campaigns through forums and printed voter guides. “My feeling is that an informed electorate is the best way to reform the system,” he says. Other ideas include moving toward nonpartisan elections and public financing of judicial campaigns. Attention will also focus on codes of conduct for judicial candidates, aimed at elevating the level of campaign debate. Several efforts to restrict campaign ads or speech in judicial elections were challenged on First Amendment grounds this year, suggesting that it might be more acceptable for non-governmental citizens’ groups to police campaigns than for government agencies to do it. Schotland also thinks some of the problems of campaign spending could be solved by lengthening the terms of judges. In Florida, for example, newly appointed justices must face retention elections a year after they are named, and then are elected to six-year terms. “We have to get away from these short initial terms,” says Schotland. “Lengthen terms and you can cut campaign spending in half.” After the meeting in Chicago, say Phillips and Schotland, the chief justices will communicate through e-mail and otherwise until the regular meeting of the Conference of Chief Justices in Baltimore in January, when firm, specific calls for change will be announced. Pressure will be strong to come up with practical solutions rather than idealistic goals that won’t translate into action. “It is important we come up with steps that are both meaningful and feasible,” says Schotland. “If a group like this can’t set the scene for some meaningful improvements, it will set back the cause.”

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