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Merit selection of judges may return     

By Staff | Dec 31, 2009

A nation-wide effort to encourage states to change their methods for selecting judges is being launched by former U. S. Supreme Court Justice Sandra Day O’Connor, who is now chairperson of the O’Connor Judicial Selection Initiative for the Institute for the Advancement of the American Legal System at the University of Denver.

If invited, Justice O’Connor will talk to states interested in hearing about the merit system for choosing judges, something dear to her heart since working on a successful reform effort as a state legislator in Arizona.

Under the merit system, sometimes called the Missouri Plan, a slate of nominees is presented to the governor by a judicial nominating committee. The governor appoints one of the nominees who serves a fixed number of years before being placed on the ballot for acceptance or rejection by the voters. If rejected, the judge is replaced by a new gubernatorial appointment.

Whether or not North Dakota will welcome a visit by Justice O’Connor is a matter of conjecture. Such an effort would require the interest and leadership of policymakers. In the early 1960s, the Legislature had that leadership and made a serious effort at adopting the system. At that time, Senator William Reichert of Dickinson led the charge for constitutional revision with the cornerstone being a merit selection system for judges.

The Legislature submitted the idea to the voters in 1966. It was rejected, with 47 per cent voting in favor and 53 per cent against. The election was so close that the Legislature resubmitted the question in 1968, only to have it rejected again by 44 to 56 per cent.

While we don’t have the full-blown Missouri Plan, our selection system is pretty close to it. Most of our judges including a majority of the N. D. Supreme Court got their positions through appointment from a slate of nominees furnished to the governor by a nominating committee.

To strengthen the new appointees’ hold on the office, the Legislature in 1998 proposed, and the voters approved, an amendment to guarantee an appointee at least two years in office before standing for election. Being able to run as an established incumbent was intended to discourage competition. It has worked. Three-fourths of our judges face no competition in elections.

With a vast majority of our judges already being appointed, going to the merit system would be a short step. But it could be a hard sell, given the North Dakota cultural bent for long ballots. Our culture suggests that all issues ought to be decided on the basis of majority rule when judges are supposed to be chosen, not for their popularity but for their faithfulness to the law and the constitution.

If we were honest, we would admit that most of us lack the information and the understanding that is required to make rational decisions on the qualifications of judges. The knowledgeable members of nominating committees and governors are better able to assess the virtues required for that office.

Omdahl is a UND professor emeritus in political science and a former lieutenant governor of North Dakota.

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