Instilling Public Trust

Judicial Selection vs. Election

Currently, West Virginia Circuit Court Judges, Family Court Judges and Supreme Court Justices are elected by the public. According to the National Center of State Courts, only eight states currently utilize partisan elections with West Virginia being one of those eight. Thirteen states elect judges in nonpartisan elections and the remaining states have some type of merit selection or retention elections.

How well does our judicial selection process work?

Just getting elected doesn’t make a person a good and fair judge. Party politics selects candidates and campaign money tends to rule the campaign process.

Relying on politics to select West Virginia judges probably means that the main way the public will know their judicial candidates will be by their political party rather than by personal qualifications, character, and fairness of the individual.

The importance of money means judicial races will be partly about personal financial resources, fundraising, and trying to avoid making fundraising promises.

Citizen Against Lawsuit Abuse’s research on the flow of campaign money through our state supreme court races, shows that the personal injury lawyer industry contributed more money to four of our five current Supreme Court Justices than any other source. (see Follow the Money for reporting on contributions).

Nonpartisan elections of judges in West Virginia has been debated for many years. Legislation has been introduced on several occasions but the attempt to remove politics from this branch of government has been unsuccessful to date.

Here are just a few examples of what others have said about the issue over the years:

Justices. For long-term improvements the state should appoint judges – Charleston Daily Mail, January 28, 2003
“The idea of electing judges to long terms so they can be insulated form political pressures has instead isolated them. Better accountability would be found in having the governor appoint judges and justices, with the advice and concsent of the Legislature. People hold governors accountable.”

Judgmental. Court should be detached from political arena – The Register-Herald, February 20, 2002
“State Supreme Court justices should be detached from the partisan political arena for the same reason candidates for boards of education are non-partisan; simply put, whether one is Republican or Democrat plays no part in the decision-making process of either body.”

Let’s reform our judicial elections – Huntington Herald Dispatch, March 8, 2000
“Okay, if the right to elect judges is so sacred, how come more than half of the 65 candidates for circuit judgeship in the state’s May 9 primary are running unopposed? Unless they’re challenged by write-in candidates, the November general election will be a formality for 41 judicial candidates. Truth is, most judicial races are a subject of intense interest to a community’s lawyers and the courthouse crowd but are studiously ignored by the voters.
It’s time for West Virginia to follow the lead of other states and stop forcing judicial candidates to run in partisan races.”

Court acts too political – Paul Owens, Political Editor, Charleston Daily Mail, March 2, 2000
“Who can have any confidence in the independence and fairness of our highest court when its justices insist on viewing each other and their responsibilities through a partisan prism? Their political behavior will continue to nourish speculation about ulterior motives with every controversial ruling that comes down.
Gov. Cecil Underwood has introduced legislation that would switch to nonpartisan election of judges. While that would be an improvement, candidates would still risk compromising their independence by accepting campaign support from special interest groups. Only appointment would solve the perception problem.”

West Virginia should elect judges on a nonpartisan basis – former Governor Cecil Underwood, The State Journal, February 21, 2000
“After all, the people of West Virginia should have the utmost confidence that their highest court is free from even the perception of political partisanship and that our highest ranking judiciary is free of biases that undermine justice.”

Take judges out of politics – The Herald-Dispatch, February 12, 2000
“Starcher [Justice Larry Starcher] believes judges should continue to run in partisan elections…The chief justice labels soaring political campaign costs ‘a red herring’ that has nothing to do with the way judges are picked. Apparently, he sees nothing wrong with a system where lawyers routinely pour big bucks into judicial campaigns and then, after the election, try cases before the very judges who campaigns they financed.
Starcher, it seems, likes things just they way they are.
Of course he does, because he’s a product of the current flawed system.”

Association with a political party is good for judicial candidates – Justice Larry Starcher, Huntington Herald Dispatch, February 12, 2000
“It is good for a judicial candidate to bear the badge of a political party. After all, judges have political philosophies, just like the rest of us. Within the limits of the law, those philosophies do make a difference. Political affiliation helps voters know where and with whom a person who runs for judicial office stands.”

State must find the gumption to take politics out of judiciary – James E. Casto, Associate Editor, The Herald-Dispatch, February 6, 2000
“As matters now stand, the only thing many voters know about a typical judicial candidate on election day is what’s printed on the matchbooks the campaigning candidates hand out. There’s got to be a better way. And there is. If West Virginia has the gumption to make the change.”

Elections. Judicial selection problematic – The Charleston Gazette, December 29, 1999
“Most states do not elect judges in partisan elections, or at all. The best solution is merit selection, with judges appointed from a list of candidates put together by non-partisan panels.”

Selecting Judges, Justices in nonpartisan elections – Wheeling News Register, December 26, 1999
“There can be no doubt in any reasonable mind that judges and state Supreme Court justices should be elected through nonpartisan balloting rather than the partisan system in use now. Non-partisan selection of judges stresses judicial ability and fairness rather than politics, which, sad to say, is the primary consideration under the current system”

Nonpartisan Justice. West Virginia should change its system – Parkersburg News, December 16, 1999
“Public opinion polls indicate that a substantial majority of West Virginians support such a change – and there are indications many legislators agree…It is clear that change is needed. West Virginia Supreme Court justices, circuit court judges and magistrates should be elected by nonpartisan ballot, simply to minimize the effect of politics on their campaigns and other subsequent behavior. The sooner the better.”

Justices. It’s time for changes in how West Virginia selects judges – Charleston Daily Mail, November 9, 1999
“West Virginia should join 29 other sates in selecting judges on the basis of merit, not popularity.”

Ju$tice. Courts for sale? – The Charleston Gazette, January 23, 1998
“In most cases, the candidate with the deepest pockets, and thus the most special-interest baggage, wins – and the whole process becomes tainted.

The American Judicature Society is pushing states to adopt merit selection of judges. Under this system, judges are appointed by Governors from lists named by non-partisan panels. To provide some accountability, judges come up for periodic retention votes…But if West Virginia wants to erase the cash taint from the judiciary, merit selection may be the only real cure.”

State bar president juggles many responsibilities – State Journal, May 22, 1998, Comments by Elliot Hicks, former President of the state bar association.
“Judges should be put into office based on their character -- their efficiency, their fairness, and their work ethic, Hicks said, but the selection method currently in place doesn’t allow for that. Now most judges are elected based strictly on name recognition or party affiliation, because that’s all the public has to work with, he said.

At the very least, we need to have non-partisan elections, he said.”

Changing the way we select judges – Beckley Register-Herald, June 4, 1996
“And consider this comment from Charleston lawyer Tom Flaherty, past president of the West Virginia State Bar: ‘Lawyers don’t contribute to judicial candidates for altruistic reasons. They do it to gain influence or make sure the candidate knows they contributed.’”

“West Virginia often is reluctant to change. Too often we find the status quo to be acceptable. But at least a few West Virginia lawyers smell something rotten in the way we select the leaders of our courts.”

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