Insight

A major challenge for Alabamians is improving how appellate court judges are selected. Three courts are at the pinnacle of the judicial pyramid — the Supreme Court, Court of Civil Appeals and Court of Criminal Appeals. They play a crucial role in the state's legal order, one little understood by the public but well known to most lawyers. Thus, lawyers have a unique responsibility to educate and influence public opinion concerning those courts' judges.

To its credit, the Alabama State Bar has risen to this challenge by supporting a change in the procedure for filling those appellate judgeships. Lawyers throughout the state should join the state bar in an all-out effort to secure acceptance of this proposal by the legislature and the citizens. Here's why.

The state's Supreme Court justices are the ultimate voice of the law in Alabama, interpreting statutes and constitutional provisions and managing the application of common law precedents under ever-changing circumstances.

The two intermediate appellate courts perform a similar function in a significant number of cases. Our system presupposes — and depends upon — high-minded judges of unblemished character, learned in the law, impartial and independent of external interests.

Among the 50 states, appellate judges are put in office in four basic ways:

• Executive appointment with legislative confirmation.

• Election by the legislature.

• Popular election by the voters.

• Nomination by a non-partisan commission with appointment by the governor.

Each is in the hands of human beings and thus is imperfect. Considering all the imperfections and the pluses and minuses of each, there can be debate as to which is best. But experience over time has shown which is the worst. Sad to say, it is the system currently prevailing in Alabama — popular election by the voters.

Money is a major reason why this system is bad — contributions of vast amounts of money in support of candidates, an evil not present in any of the other judicial selection systems. By the early 2000s, Alabama had set the national record for money spent by candidates in state Supreme Court campaigns since 1993: a total of more than $41 million, even beating out Texas.

The pattern continued in the 2006 general election where candidates for four contested Supreme Court seats raised at least $10.5 million, not including several millions spent in the primary.

It is especially troubling that a significant amount comes from out of state. What legitimate interest can anyone outside of Alabama have in determining who sits on its supreme court?

The evil in this money is the threat to, and undermining of, the most fundamental feature of the judiciary — the impartiality and unbiased character of the judges, both in reality and in public perception.

The money contributed to these campaigns comes from numerous sources, including lawyers and citizens, law firms and organizations of various sorts. Special-interest groups are especially heavy contributors. Most of the contributors give to a particular candidate because they believe that candidate, if elected, will decide certain issues and types of cases the way the contributors want them decided. In other words, most contributors typically do not want an independent, objective judge. One might debate whether they always get what they want, but whatever the reality, the damaging perception is undeniable.

The money fueling this selection system gives the unavoidable impression that seats on Alabama's appellate courts are for sale.

Another reason for Alabama's problems is the damage that campaigns inflict on public respect for the judiciary and on the victorious candidates. Campaigns for judgeships began to grow nastier in the 1990s, with opponents attacking each other's character in destructive ways. No matter who is elected, citizens generally will perceive that they now have a judge on one of the highest courts whose character is seriously blemished, ethics doubted or personal morality drawn in question. Even if all the accusations are in fact untrue, the damage has been done, and public respect for the court diminished.

Judicial campaigns have also tempted candidates to disclose their views on issues that are likely to come before their court and which they must decide, if elected. Nothing is more fundamental in our legal order than the notion that a court must decide in unbiased fashion each case on the law and the evidence. Previously revealed positions by a judge cannot be squared with the concept of an objective, neutral judiciary.

Still another reason why political elections for these statewide judgeships are bad is the votersv inability, as a practical matter, to know and evaluate the qualifications of the candidates. Good appellate judges must possess a unique combination of abilities — intelligent, honest, of good character, solid grounding in the law, analytical ability, excellent writing ability, a facility in the English language that enables them to put all of that into clearly written opinions providing guidance to lower courts and practicing lawyers. And then there is the requisite of wisdom — the product of experience playing on an intelligent mind — and good common-sense judgment.

It is obvious that the public is unlikely to be aware of these desirable qualifications, much less be able to determine whether a candidate meets them.

Surveys, as well as our own experiences, tell us that a large percentage of the electorate does not even recognize the names of most judicial candidates. Voters are likely to act on the basis of one-line sloganeering, negative TV ads or party affiliation.

It is a sad commentary on our system to realize that it is possible for almost any lawyer, regardless of qualifications, to become a Supreme Court justice if he can afford the filing fee, raise a lot of money and advertise vigorously on TV, especially with emotional pitches and negative attacks on opponents.

The American Judicature Society developed has a plan for selecting state judges by gubernatorial appointment from a list of nominees screened on their merits and certified to be well-qualified by a non-partisan nominating commission. Today, 24 states initially choose their Supreme Court justices in this manner. (Only seven other states use the Alabama system of partisan elections.)

This nominating commission-gubernatorial appointment plan, endorsed by the Alabama State Bar, would entirely eliminate money and character assassination from the process. Whomever the governor picked from the list would have been thoroughly examined and determined by the commission to possess qualifications along the lines of those described above. Able lawyers could be sought out for judgeships and become appellate judges without the grueling, time-consuming and often degrading process of running for the position.

It is sometimes asked why judges should not be elected by the voters like all other public officials. The answer is that judges are different from all other public officials. Candidates for the governorship and the Legislature properly run on platforms, announce positions on controversial issues and make pledges as to how they will act if elected. They are not expected to be objective or neutral. Voters properly support or oppose those candidates based on the positions they expect them to take. It goes without saying — or should — that such advance commitments by a prospect for judicial office are at odds with the principles of independence, objectivity, open-mindedness and unbiased judgment that a judge is expected to embody.

Opponents of merit selection plans sometimes argue to citizens that, "They're trying to take away your vote." This is an emotional appeal that avoids analysis of the proposal. The claim is untrue under the plan supported by the state bar. Under that plan, at the end of a six-year term, each judge, in order to continue in office, would be required to go before the voters, who could vote him or her out of office.

Judges would be ultimately accountable to the people. In that election the voters would have the benefit of something very important they do not now have, an evaluation of the judge' judicial performance, thus enabling voters to make the kind of informed decision they cannot now make. The evaluation would be done by a balanced, non-partisan judicial evaluation commission, which would review all aspects of the judge's work and release a report to the public.

In the 24 states selecting their supreme court justices this way there has been no substantial move to return to a politically elective system.

It is also said that politics cannot be taken out of judicial selection. To an extent this is so. In a democracy we would not want politics, in the best sense of that term, to be eliminated. But the most baleful aspects of partisan politics can be drastically reduced by a commission nominating system. That system combines in optimum fashion non-partisan merits screening with the political judgment of the elected governor. Under the bar-supported plan, the commission's membership is required to be fairly balanced and widely representative in every respect, functioning under known procedures. No "back room" here. The governor will have a choice from the multiple names submitted by the commission, but the governor cannot go wrong, because every individual on the list will have been vetted by the commission and found to meet the requisites for an appellate judgeship.

The system will be in the hands of human beings, like any system, and thus may not be perfect. But the test is not perfection. The procedure need only be better than what we have.

The time has come to put in place a method of ensuring that judges come to the appellate benches free of the taint of money and of questions about their character and qualifications. In short, we need a system that will guarantee that in the decades to come Alabama will have appellate judges to match the grandeur of that courtroom in which they sit.

Alabama native Daniel J. Meador is the James Monroe Professor of Law Emeritus at the University of Virginia. He was the dean of the University of Alabama Law School from 1966 to 1970.