Status Quo is Not Good Enough

Status QuoDoes it matter if judges are elected or appointed? How independent they are? How much innovation is going on in the court system?

As you may know, United States Supreme Court Justice Sandra Day O’Connor (Ret.) has been busy in retirement. One of the topics she passionately advocates for is a fair and independent judiciary. She has traveled around the country speaking publicly against efforts to undermine the independence of the judiciary, especially through efforts in some states to politicize the role of judges.

What Is The O’Connor Judicial Selection Plan?

Justice O’Connor recently unveiled the O’Connor Judicial Selection Plan, the fruit of several years’ work with the Institute for the Advancement of the American Legal System (IAALS) and an advisory committee to its Quality Judges Initiative chock full of deep thinkers.

The O’Connor Judicial Selection Plan recommends a process for selecting and retaining state judges that includes judicial nominating commissions followed by gubernatorial appointment, performance evaluation and periodic retention elections where the public weighs in.  The report isn’t long, and each word counts.  Throughout the report the recommendations are diplomatically offered as “better” not necessarily “best” practices and states that have already established some of the components are highlighted.

Even if your state, like mine, seems pretty firmly ensconced in the full electoral process of selecting judges, you will find quite interesting the statements the Plan makes of the core values in the judiciary.  As a predicate to the development of the judicial selection recommendations, the committee spent considerable time and research identifying and articulating the “Values Desired in Individual Judges” and “Values Desired in Court Systems.”

What Are The Values Judges Must Have?

The four stated values judges must have are: fairness and impartiality, competence, judicial philosophy and productivity and efficiency. Under each of these individual values are several more detailed statements, for example, “Judges must eschew actual bias and the appearance of bias.” In this part of the report, the committee exercises leadership in using the clear imperative verb “must” rather than a more wishy-washy “should” or “may.”

The six delineated values desired in the court systems are: commitment to public service, transparency, accountability, accessibility, fair, efficient and predictable process, and respect for demographics/social makeup of community.  The statements together are refreshing in that they create accountability and transparency for our judges and judicial system.

I hope all judges and lawyers can embrace these values as desirable in our court systems and in our judges.  Such an acknowledgement may be another thread in the ever-changing tapestry of our legal professional community.  What to do if we aren’t seeing these values being played out in our respective courthouses? Nothing is not the right answer.

As lawyers we are charged  to “seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.” To seek such improvement, we may join forces with any number of organizations such as IAALS, national, local or specialty bar associations, or the Center for Court Innovation. The Center for Court Innovation is a public/private partnership dedicated to helping the justice system aid victims, reduce crime, strengthen neighborhoods, and improve public trust in justice in New York, nationally and internationally.

What should animate our thoughts and actions was encapsulated beautifully by the executive director of the Center as he remembered Alfred Siegel, the deputy director of the Center who died early this year: “he also understood that the status quo is not good enough and that, with a little bit of cajoling, the justice system is capable of improving the way it serves victims, defendants and the general public.” Maybe that could be said of you or me someday.

Leave a Reply

Your email address will not be published. Required fields are marked *