The debate over the judicial appointments and issues of justice have long been subject for debate, from the selection process itself to whether campaign funding frustrates the ideal of justice and impartibility. Indeed, any society that advocates liberty and justice as their core principal is dependent on an independent and politically impartial judicial selection process.
The following paper focuses on two articles that address differing facets of the judicial appointment process; namely, the article by Skaggs entitled “Are Campaign Contributions Compromising the Independent Judiciary?” and Shackelford & Butterfield’s article “Questioning Reform – The Light of Accountability: Why Partisan Elections Are the Best Method of Judicial Selection”. Both articles focus on the specific relatable aspects of the judicial appointment process; the former examining the effect of campaign contributions, the latter, an analysis of the method of judicial selection. To these ends the following paper provides a summery and analysis of each of these articles in turn as well as a comparison with a particular focus on criminal justice from a biblical world view perspective.
At the heart of Shackelford and Butterfields’s article is a comparison between three types of systems which are used in the selection of judges; the federal system, the Missouri Plan and through popular election. What the article focuses on specifically in relation to these three systems is the level of citizenry involved in each (Shackelford & Butterfield, 2010). The article first identifies the conceptual weaknesses in the federal system of judicial election in terms of its attachment from the electorate. Federal judges are selected by the governor and appointed by the legislator; and while the electorate has a say in these positions, the federal system of judicial appointment only allows an indirect influence from the people (Shackelford & Butterfield, 2010). Similarly, the Missouri Plan for judicial selection is absolutely detached from popular elections and instead is based on a panel of experts (as the article states, typically high level lawyers) who provide a list of candidates for the governor to select from; if the governor is unable to make this choice, the decision reverts back to the panel who will have the final say in the selection of the judge (Shackelford & Butterfield, 2010). The preferential system of selection (in the articles opinion at least), is selection through partisan election by the people as this allows a greater level of transparency while remaining true to democratic principles: “Let us not forget that the judiciary no less derives its powers from the just consent of the governed than any other branch of government” (Shackelford and Butterfields, 2010).
Similarly to the topic of judicial selection, the article by Skaggs explores the impact of campaign contributions in relation to judicial appointment. The main focus of Skaggs article is the conflict of interest (both actual and perceived by the public) between the judges and financial benefactors (Skaggs, 2010). For Skaggs, this represents a clear problem with the partisan election of judges, particularly as one of the main outcomes of such a system is a second tier of politicians who are in positions which should be absolutely governed by impartiality (Skaggs 2010). This is a particularly important critique of the selection of the judiciary as it emphasizes that partisan elections where an individual candidate is selected and funded by a group of individuals (political, business or other), provides some level of leverage and influence over a candidate while also implicitly reinforces a elitist class system.
As well as the clear direct legal problems with influence buying, Skaggs notes that even if there is no conflict of interest between the candidate for a judicial position and their benefactor, this system creates: “the widespread perception of influence-buying is corrosive to the legitimacy of an institution whose authority depends not on the power of the sword or the purse, but on its reputation for dispensing equal justice to all” (Skaggs, 2010).
One of the weaknesses that is highlighted through a comparison between the two articles is the problem of ‘politicizing’ the appointment of judges through partisan elections. While Shackelford & Butterfield argue for a system based on the direct election to create a transparent system away from the secretive meetings within the political and judicial establishment, Skaggs demonstrates one of the fundamental flaws with political style election campaigns for prospective judges. In terms of criminal justice, the methods and systems identified in the two articles this paper is concerned with pose problematic questions towards formulating the best system for the judicial selection process. At the heart of this problem (in both Shackelford & Butterfield and Skaggs) is preserving the ideal of impartial justice; impartial from both potential financial backers as well as impartial from the politicizing and strategic selection choice that plagues closed system selection such as the Missouri Plan.
In conclusion both the article by Skaggs and Shackelford & Butterfield both tackle some of the core issues associated with the judicial selection process. While both articles highlight the relative strengths and weaknesses associated with the partisan voting system, neither contribute towards advocating a replacement system, of ideal means for judicial selection. While the transparency of the partisan system does emphasis and reinforce the constitutional power of the judiciary (through the idea of the social contract), it is essential potential candidates are not seen as being ‘bought’ by political or private benefactors.
- Shackelford K, & Butterfield J. “Symposium: Judicial Selection: Part I. Questioning Reform: The Light Of Accountability: Why Partisan Elections Are The Best Method Of Judicial Selection”. State Bar of Texas, Litigation Section, The Advocate. Winter, 2010
- Skaggs, A. “Symposium: Judicial Selection: Part I. Reform: Are Campaign Contributions Compromising The Independent Judiciary?” State Bar of Texas, Litigation Section, The Advocate. Winter, 2010