Fair Courts = justice

“The founders realized that there has to be some place where being right is more important than being popular or powerful, and where fairness trumps strength. And in our country that place is supposed to be the courtroom.” Justice Sandra Day O’Connor The Judicial Branch

Topics Characteristics of a fair and impartial judiciary Differences between state and federal courts Elements of judicial decision-making State and federal judicial selection and retention processes Current issues impacting fair and impartial courts Review objectives/topics for the presentation.

Warm Up Exercise These factors should NOT impact the judge’s decision in your case Public opinion about the issue you oppose Your political party affiliation The position of special interest groups on the issue Media reports Personal perspectives or affiliations of the judge Money or contributions When you walk into the courtroom and face the judge Using this warm up exercise, distribute copies of the handout and have participants complete and discuss. The scenario incorporates a case where you are arrested during a peaceful protest where you have voiced your opinion about a decision the government has made with which you disagree. Ask participants what you expect from the courts in this scenario? Pose this question as well as the question on the slide to the full audience and seek responses from four or five people or groups.

Judicial decisions should not be based on public opinion or personal feelings. They should be based on the law.

How are judges different from other elected officials? Legislators make decisions based on the needs/desires of their constituents or voters, their own beliefs, or their political party’s agenda. Judges must follow the law and should not be influenced by politics, special interest groups, money, public opinion or their own personal beliefs. They should be fair and impartial. Differentiate between judges and other elected officials such as legislators. Make sure the audience understands that this is the way our system is designed.

Our goal is to have judges who are fair and impartial; qualified for their positions, and not influenced by politics, public opinion or other outside influences. But how do we achieve this goal and what is happening today that may impact trust and confidence in the courts.

At the start . . . Colonial Era Judges selected by the King. “He (King George III) has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.” Judges selected by the King. Colonists outlined complaints in the Declaration of Independence citing how the King abused power and controlled the judiciary. Why would this be a problem . Relate back to three branches

What would happen? If a judge ruled against what the King wanted, then they would lose their jobs. The King would just select new judges that would rule the way he wanted Judges would no longer base decisions on the rule of law but rather on what the King desired! If judges ruled based only on the desires of the King (or the Legislature or the President or the Governor) then how would our government be different?

United States Constitution It limits the powers of government It provides the structure/functions of government Separation of powers Checks and balances It establishes the rule of law It protects the rights of the people Anything else? Who does the Constitution protect you from? What does a Constitution do? Differentiate between a Constitution and Statutes. Developed by The Florida Law Related Education Association, Inc., www.flrea.org

Briefly highlight the three branches and the corresponding responsibilities of each. The Founders split the government into different parts to prevent the abuse of power. Define “interprets” as to explain the meaning of….Emphasize the dangers of placing all responsibilities into one branch of government. What if the President or Governor was responsible for making the law and enforcing the law as well as interpreting the law.

Total power in one branch of the government What if one entity was able to… …make the law …enforce the law …and interpret the law Total power in one branch of the government How would this impact our government?

The Role of the Courts

What does the judicial branch do? The role of the judicial branch is to resolve disputes through a legal process, interpret the law and determine if a law is unconstitutional. To challenge the constitutionality of a law, someone must bring a case to the courts. Unlike in many countries where laws are reviewed by the courts BEFORE they become law, in the United States, laws are passed by Congress and state legislatures without judicial review. Judicial review only if someone challenges the law in court. Sometimes these cases or issues are controversial. Judges need to be neutral and apply the law in making their decisions.

The reality is that our democracy depends on a judiciary this is free from the pressure of politics and committed to the protection of individual rights – that role, however, is never one that will make the judiciary popular with the other two branches or with those who possess political power. It may not always be popular with the majority in general. But it plays an essential role in our constitutional structure. If all branches made decisions based on the will of powerful/majority then there is no balance with individual rights.

Two Parallel Court Systems Federal and state courts

Federal and State Court Systems State Supreme Court Appellate Courts Circuit Courts County Courts U.S. Supreme Court U.S. Courts of Appeal U.S. District Courts appeal appeal appeal appeal Federal and State Court Systems

Different Kinds of Courts Fair and Impartial Application of the Law Trial Court Appellate Court* Judges sit individually Juries are present in certain cases Prosecution or Plaintiff v. Defendant Attorneys call witnesses and present exhibits as evidence First opportunity for a case to be heard and establishes facts Panel of judges No juries Petitioner or Appellant v. Respondent or Appellee Attorneys submit briefs and present oral arguments on legal issues Determines if the law was applied correctly and if the trial was fair Trial judges preside over civil and criminal trials and hearings. In court, judges make decisions on testimony and evidence. Judges also instruct jurors on applicable law. Appellate judges preside over appeals of trial court decisions, constitutional questions, etc. They apply and interpret the law. *Appellate courts do not rehear the case over again. Appellate courts focus on questions of law, NOT on questions of facts like the trial courts. The appellate judges want to know whether the law was applied correctly.

Current Issues Impacting State Courts What issues impact fair and impartial state courts?

“I am anxious about the state of the judiciary in America “I am anxious about the state of the judiciary in America. What worries me is the manner in which politically motivated interest groups are attempting to interfere with justice.” - Sandra Day O’Connor And a critical look at whether legislative changes and changes to campaign financing need to be examined since the rationale for political spending as free speech may be undercut when examining the effect of big money on the judicial branch. As Justice Sandra Day O’Connor stated: “I am anxious about the state of the judiciary in America. I am not concerned about particular judges or cases, nor am I concerned about the judiciary shifting right or left. What worries me is the manner in which politically motivated interest groups are attempting to interfere with justice” State of the Judiciary

What issues impact fair and impartial courts? Infusion of politics and special interest money into judicial elections. Political attempts to pack the court with like-minded individuals Attempts to remove state court judges because of a decision on a controversial issue Reduction of state court funding by the legislative or executive branches Negative campaign ads Politicization of selection and retention processes

Who selects judges?

Federal Judges (US Constitution) Appointed for lifetime terms, assuming “good behavior” Appointed by President and confirmed by Senate (Completes comprehensive questionnaire; referred to the Senate Judiciary Committee where confirmation hearings are conducted; American Bar Association Standing Committee on the Federal Judiciary provides an evaluation of the professional qualifications of the nominee’s integrity, professional competence and judicial temperament.) Judicial nominations for all Article III courts that are sent to the Senate for consideration by the President are referred to the Senate Judiciary Committee.  These include nominations for the U.S. Supreme Court, the U.S. Courts of Appeals, U.S. District Courts, and the Court of International Trade. Pursuant to the Constitution, nominations for the Supreme Court, Courts of Appeals and District Courts are made by the President and confirmed by the Senate.  Potential nominees are sometimes identified and recommended by members of Congress.  Nominees confirmed by the Senate are appointed for lifetime terms.  After a nomination is received by the Senate and referred to the Judiciary Committee, the Committee typically conducts a confirmation hearing for each nominee.  Before a hearing can be scheduled in the Committee, however, nominees are expected to complete a comprehensive questionnaire.  In light of their interest in nominees from their home state, and to encourage consultation, Senators from a nominee's home state are also invited to participate in the process.  They are provided a "blue slip" by the Committee, by which they can approve moving the nominee through the Committee process.  It is important to note, however, that the return of a positive "blue slip" is not a commitment by either home state Senator to support or oppose, a pending nomination.  The American Bar Association's Standing Committee on the Federal Judiciary also provides an evaluation of the professional qualifications of a judicial nominee.  These ratings provide an evaluation of a nominee's integrity, professional competence and judicial temperament.  They are not an evaluation of a nominee's philosophy or ideology. During a hearing, judicial nominees engage in a question and answer session with members of the Judiciary Committee.  After the hearing, Committee members may send written follow-up questions to the nominee.  After the completion of any follow-up questions, a nomination can then be listed for Committee consideration during an Executive Business Meeting.  Should the Committee order a nomination reported, the nomination is placed on the Senate's Executive Calendar where it would await consideration by the full Senate.  If a majority of the Senate votes in favor of a nomination, the President is notified of the Senate's action, and the nomination is confirmed. There are a total of 875 Article III judgeships nationwide.  New judgeships are established through legislation proposed, approved and enacted by Congress.  There are 13 judicial circuits in the United States, each with a U.S. Court of Appeals.  Within the 13 judicial circuits there are 89 districts.  Pending cases in federal court originate first in the district courts.  Following a ruling by the district courts, a defendant or plaintiff may appeal the ruling to the Appellate Court.  In a limited number of cases, the Supreme Court decides to consider a case following a decision by the Appellate Court.  The Supreme Court begins its term on the first Monday in October, and typically adjourns in June. For more information about judicial nominations, judicial vacancies, and the confirmation process, visit the Administrative Office of the U.S. Courts. 113th Congress: Confirmations 112th Congress: Confirmations

State constitutions or statutes set methods for seating state judges States utilize one of three models Elections Either Partisan or Nonpartisan Appointments Different models in different states Our goal is to have judges who are fair and impartial; qualified for their positions, and not influenced by politics, public opinion or other outside influences. But how do we achieve this goal and what is happening today that may impact trust and confidence in the courts. Hybrid models – Merit Selection and Retention Using Nominating Commissions to review candidates, followed by appointment and retention elections

What model does your state use to appoint appellate judges?

Judicial Selection in Tennessee A system in transition

The “Tennessee Plan” Adopted in 1971, ending the bipartisan election of judges that was established by an 1853 constitutional amendment Comprised of two parts: Merit Selection Merit Retention

A matter of merit What is Merit Selection? What is Merit Retention? A process for selecting judges based on their qualifications or merit. A Judicial Selection Commission (statutory body) screens candidates and sends slate of three top candidates to the Governor. If the first slate is rejected, the Commission sends a second slate and the Governor appoints from that list. Process for voters to decide if a judge should remain in office after they have been appointed through the Judicial Selection Commission. Retention election held every 8 years for all appellate judges Tennessee voters decide whether to retain or not retain each judge Each judge has previously been evaluated through the JNC process.

Once appointed, how do appellate judges remain in office? Voters decide Under the Tennessee plan, appellate judges are on the ballot every eight years for voters to determine if they should remain in office. Judges are on the ballot for merit retention every eight years

Merit Selection and Retention The merit selection and retention process was designed to reduce outside influences on the judiciary. ✗ Political pressures Personal opinions Popular opinions Corruption Other influences Add quote from Justice Pariente (Jacksonville speech)….”Merit retention was the result of a vision of having a judiciary that would not be subject to the whims of political change and public opinion polls

Judicial Nominating Commmissions under the Tennessee Plan Nominating commissions comprised of 17 members Measures in place to ensure bipartisan and minority representation Members included: Trial lawyers District Attorneys General Public Defenders General Practitioners Non-lawyers

Accountability Measures under the Tennessee Plan Commission comprised of nine members selected by a combination of the Judicial Council, the Speaker of the House and the Speaker of the Senate Before each retention election, the Judicial Performance Evaluation Commission reviewed the judges’ performances and recommended retention or nonretention based on the judges’ public records Judicial Performance Evaluation Commission established in 1994

Changes over time 1973/1996: Tennessee Plan upheld as constitutional by the Tennessee Supreme Court 2009: The Judicial Selection Committee was replaced by the Judicial Nominating Commission All 17 members appointed by the Speakers of the House and Senate Only diversity requirement is balance among the three Grand Divisions, and majority lawyer membership (each speaker must select attorneys for five of their eight appointments) 2013: The Judicial Nominating Commission officially sunsetted Two bills, one by Senator Doug Overbey and one by Senator Mike Bell, were proposed to extend the Commission for one more year; both failed Proposed constitutional amendment would make all judicial appointments at sole discretion of the Governor 2013: The Judicial Performance Evaluation Commission was not extended; it is due to sunset on June 30, 2014

Changes over time After sunset of Judicial nominating Commission, question arose about HOW to replace judges who left office after June 30, 2013 and prior to vote on the proposed Constitutional Amendment October 9, 2013: Tennessee Attorney General Opinion issued stating that “the Governor would have the statutory authority to appoint any qualified person to fill a judicial vacancy” October 16, 2013: Governor issues Executive Order Establishing the “Governor’s Commission for Judicial Appointments for purposes of filling vacancies in the trial and appellate courts in Tennessee” 17 members, including 11 incumbent members appointed by the Speakers of the House and Senate and 6 new Gubernatorial appointees, in consultation with the Speakers

Proposed constitutional amendment Judges of the Supreme Court or of any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state. Confirmation by default occurs if the Legislature fails to reject an appointee within sixty days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session. The legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article.

Side by side comparison Tennessee Plan Proposed Amendment Slate of nominees give to the governor was chosen by a group of bipartisan members chosen by a variety of groups Qualifications of candidates publicly available for viewing by public and evaluated by Judicial Selection Commission which reviewed credentials and interviewed candidates Unclear how qualified candidates will be identified for gubernatorial appointment unless Executive Order is continued Qualifications of candidates may not be made public prior to appointment, and will be evaluated by political bodies – the State Senate and the State House

Side by side comparison Tennessee Plan Proposed Amendment Judicial Selection Commission had to nominate slate within 60 days of judicial vacancy If vacancy occurs during recess of General Assembly, judge may not be replaced until 60 days after General Assembly reconvenes

Considerations Lack of an open, public nomination process could lead to cronyism Political confirmation process may discourage candidates who believe they must have the right “politics” to make it through the nomination process Time lag in confirmation process may lead to vacant judgeships going unfilled for long periods oftime

Alternative Scenarios Constitutional Amendment Passes: General Assembly would still have to enact legislation to set up procedures for gubernatorial appointment, as recognized in text of amendment Constitutional Amendment Fails: Executive Order remains in effect to fill vacancies? Legislature takes failure of the amendment as a sign that voters want popular election of judges? If answer to question two is yes, legislative action is still necessary to institute popular elections

Judging Judges

These are traditionally the top responses when asked to identify characteristics or considerations the public wants in judicial candidates.

The Danger of labels “Judicial Activism” “Legislating from the bench” “Judge-made law” “Conservative” vs. “Liberal” Judges Define some of the terms and how/why they are used. Judges are supposed to examine the facts and apply the law in a fair and impartial manner. The Danger of labels

How to evaluate judges Consult multiple sources Review biographies of judges on court or bar association websites Read materials published by nonpartisan groups like the League of Women Voters Review published polls of attorneys and others highlighting approval ratings of judges or justices Watch online or gavel-to-gavel coverage to observe courtroom demeanor of judges or justices. You can also read decisions in the cases Check for public reprimands or other disciplinary actions Check to see if the judge has any history of discipline as a lawyer Highlight where participants can find information on appellate judges. Remind participants of their responses about what was important to them as they answered previously. Pull up a bio during the presentation…EX Justice Barbara Pariente.

How can you make informed decisions to ensure fair and impartial courts? Think critically about the role of judges in our constitutional system Examine the judge’s legal and judicial experience as well as his or her educational background Seek information on the judge’s temperament and judicial demeanor on the bench Determine if the judge has disciplinary record as a lawyer or judge Read decisions/opinions in cases to examine judicial reasoning rather than listening only to sound bites and negative ads What else would you add?

Special thanks to: Benchmarks, a special public education program of The Florida Bar Justice Barbara Pariente, Florida Supreme Court The Florida Law Related Education Association, Inc. Hall+Media Strategies, Inc.