Appoint judges? No thanks

Nevadans are voting on whether to amend their constitution to provide for the appointment of Supreme Court justices and District Court judges. Here are the reasons why Nevadans should vote no on Question 1.

First, Nevada's constitution, as it stands now, provides for elective judges and honors Nevada's populist tradition that reserves to the people primary responsibility for selecting who will hold important positions in their government. Nevada's populist tradition includes the initiative process and the right to recall officials. Populist government diffuses power and holds politicians in check by making it easier for voters to hold them accountable. These are important values, and these values should apply as well to how Nevadans select judges.

Second, the system that is being proposed -- initial appointment by the governor based on a recommendation from a commission -- will result in a less open system run by elites who are closely connected to those in power. Judicial commissions do not operate within the glare of the public, and their members are not elected. Typically the members are politically well-connected and part of the insider elite that already heavily influences government.

Moreover, experience has shown that these commissions do not necessarily make recommendations that are inclusive of minorities, women or working class families -- all of whom have limited access to power. Last year, for example, Florida and Tennessee's governors were critical of their judicial commissions because recommendations were non-diverse.

Moreover, here in Nevada many women judges do not believe that they would have gotten through a judicial commission; rather, they believe that the elective system opened the door for them to become judges.

Third, experience elsewhere shows that under the proposed system it is unlikely that a judge who is up for a retention vote will be defeated. Question 1 provides that a judge will serve a brief term following appointment, and in the next election cycle, voters will be asked, "Should Judge X be retained?" By contrast, under the current system, voters are asked, "Do you prefer Judge X or Judge Y?" When voters are asked the retention question, statistics show that voters vote "yes" 99 percent of the time in state Supreme Court races. As a result, according to a recent analysis, the average tenure for a state Supreme Court justice in retention states is 11.3 years, as compared to 8.7 years in nonpartisan elective states.

Fourth, proponents of Question 1 argue that this change will result in a better quality of judges. Recent statistical analysis, measuring quality of state Supreme Court judges (by looking at how often a judge is cited, how many opinions she writes, etc.) in elective versus retention systems, refutes this proposition.

It is true that under the current system, Nevadans have witnessed judges who have embarrassed the office to which they were elected. However, a more prudent reform would focus on how to screen for non-qualified judges.

One solution would be to switch to a partisan elective system. Both Democrats and Republicans recruit, train and endorse candidates. Operationally, this is a screening process. Each party has an interest in putting forth a candidate who has the best chance of winning, and at a minimum this means someone who is qualified will be put forth by each party.

Fifth, proponents also argue that putting judges in the position to ask for campaign contributions is unseemly. On the average, at a national level, it takes $550,000 to run a campaign to gain a seat on a state Supreme Court. This amount seems modest compared to the tens of millions that are currently being spent by candidates running for the U.S. Senate and governor.

Moreover, there are benefits to voters from the campaigns that such monies finance. Mainly, campaigns provide voters with information as to a candidate's profile, his or her record and values. Understandably, campaigning is not something that judges like to do. However, if a lawyer wants to be elevated to a judgeship, then campaigning is a way that a candidate can gain the trust of the people. Further, raising money for a campaign is evidence of how much that candidate wants the job, and that desire may also indicate a commitment to doing a good job.

Is it a bad thing for the rule of law that judges in an elective system must stand for re-election periodically? In a limited number of important cases, a judge will inevitably be influenced by his or her ideas of what are the social realities on the ground, which in turn are shaped by his or her upbringing and experiences, and his or her values. Political scientists have been able to show statistically that in "hot button" cases -- such as those involving the death penalty, affirmative action or abortion rights -- political ideology is a very good predictor of how judges will decide such cases.

Accordingly, it may not be a bad thing for a judge to have to consider in these deliberations, not only his or her personal values, but also those of the electorate. This ensures that a state Supreme Court justice does not wander too far away from what is important to the people he or she serves.

Sylvia R. Lazos is the Justice Myron Leavitt professor at UNLV's William S. Boyd School of Law, and Chris W. Bonneau is a professor of political science at the University of Pittsburgh.