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
1.
2.
3.
4.
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
5. Current issues impacting
fair and impartial courts
Warm Up
Exercise
These factors should NOT
impact the judge’s decision
When you walk in your case
into the
❌Public opinion about the issue
you oppose
courtroom and
❌Your political party affiliation
face the judge
❌The position of special interest
groups on the issue
❌Media reports
❌Personal perspectives or
affiliations of the judge
❌Money or contributions
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.
At the start . . .
Colonial Era
Judges
“He (King
George III)
selected
by the
has made Judges
King.
dependent on his Will
Colonists outlined
alone for the tenure of
complaints in the
Declaration
of
their offices,
and the
Independence citing
amount and payment
how the King abused
power and
controlled
the
of their
salaries.”
judiciary.
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?
Developed by The Florida Law Related Education
Association, Inc., www.flrea.org
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
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.
Two Parallel Court Systems
Federal and state courts
State
Supreme
Court
U.S.
Supreme
Court
Appellate
Courts
U.S. Courts of
Appeal
Circuit Courts
County Courts
U.S. District Courts
Federal and State Court Systems
Different Kinds of Courts
Fair and Impartial Application of the Law
Trial Court
Appellate Court*
Judges sit individually
Panel of judges
Juries are present in certain cases
No juries
Prosecution or Plaintiff v. Defendant
Petitioner or Appellant v. Respondent or
Appellee
Attorneys call witnesses and present
exhibits as evidence
First opportunity for a case to be heard
and establishes facts
Attorneys submit briefs and present oral
arguments on legal issues
Determines if the law was applied
correctly and if the trial was fair
*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. What worries
me is the manner in which
politically motivated
interest groups are
attempting to interfere
with justice.”
- Sandra Day O’Connor
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.)
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
Hybrid models – Merit Selection and Retention
Using Nominating Commissions to review candidates, followed
by appointment and retention elections
What model does your state
Whatuse
model
to appoint
does
your
appellate
state judges?
use?
Judicial Selection in Kansas
What Is Merit Selection?
A matter of merit
• A process for selecting judges based on their
qualifications or merit.
• Judicial Nominating Commission investigates
backgrounds of candidates and interviews them at public
meeting, then votes which three candidates will
be considered by Governor.
• Governor has 60 days to appoint one
of the three. If Governor fails to make
appointment in 60 days, Chief Justice
appoints judge from list of three.
What Is Merit Retention?
A matter of merit
• Election in which voters decide
whether a merit-selected judge should
remain in office
• First retention election held
after judge’s first full year in
office
• If judge remains in office after first retention
election, then additional retention elections take
place every six years for Supreme Court Justices
and every four years for Court of Appeals, District,
District Magistrate Judges
Once appointed, how do judges
remain in office?
Voters decide
Appellate court judges in Kansas
go on the ballot for their first
retention vote within two years
after their appointment
Merit Selection
and Retention
The merit selection
and retention
process was
designed to reduce
outside influences
on the judiciary
✗
Political pressures
Personal Biases
Popular opinions
Corruption
Special Interests
Selection of Supreme Court Justices
Voters established merit selection for the
Kansas Supreme Court in the state’s Constitution
The members of the Supreme Court Nominating Commission are:
•
Four laypersons selected by the Governor, one from each of the
four Congressional Districts
•
Four lawyers, one from each of the four Congressional districts,
elected by the lawyers in their districts
•
One chairperson, a lawyer elected by lawyers statewide
The Kansas Bar Association has NO role in the selection of lawyer
members or the chair of the Supreme Court Nominating Commission
Selection of Judges for
Kansas Court of
Appeals
• Until 2013, selection
method for appellate
court judges was
identical to the merit
system used for
appointments to the
Supreme Court
• Process established by
statute, not the
constitution
• New process passed by
the legislature and
signed by the Governor
eliminated merit
screening by a
nominating commission
• Only one appointment made to date
under the new system eliminating
screening and nomination of candidates
• Governor now appoints without input,
subject to confirmation by the Senate
• Names of applicants for the new 14th
seat created on the Court of Appeals
were not revealed
• Names of lawyers interviewed by the
Governor for the position were not
revealed
• The Senate, while in special session for
a few days in September, affirmed
appointment of the Governor’s Chief of
Staff – who will take the bench in
January
District options for selection of trial
court judges in Kansas
Partisan Election
Merit Selection and Retention
•
•
Half of the 31 judicial districts in
Kansas have partisan elections for
the trial bench
•
•
•
Half rely on district nominating
commissions to select candidates
to send to the Governor for choice
of appointment
Commissions made up of equal
number of laypersons and lawyers
Laypersons selected by county
commissioners of the district
A Kansas Supreme Court Justice
assigned as Departmental Justice
for the district serves as the nonvoting chair of the commission
District Magistrate Judges
• Selected according to same local
option used for district judges
• In merit-selection districts, the district
nominating commission selects the
magistrate rather than forwarding
candidates to the Governor for his
or her selection
Once selected, how are judges
held accountable?
 Oath of Office – sworn to support, protect and
defend the US Constitution and Kansas Constitution
 The Appellate Process – judicial decisions can
be appealed to a higher court for review
 Judges must follow the Constitution
(US and State), statutes/sentencing
guidelines, case law (precedent),
rules (court and procedural)
 Retention or Partisan Elections by
Kansas voters
How are judges held accountable?
 Code of Judicial Conduct – standards of ethical conduct
for judges.
• Reports of misconduct directed to JQC
(Judicial Qualifications Commission) for
investigation.
• Judges can be disciplined (from reprimands to
removal from bench) for violations of
Code of Conduct.
 Impeachment
Selection of Judges for
Kansas Court of Appeals
 Until 2013, selection method for appellate
court judges was identical to the merit system
used for appointments to the Supreme Court
 Process established by statute, not the
constitution
 New process passed by the legislature and
signed by the Governor eliminated merit
screening by a nominating commission
Judging Judges
“Judicial Activism”
“Legislating from the bench”
“Judge-made law”
“Conservative” vs. “Liberal” Judges
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
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.