The O'Connor Judicial Selection Plan

We join countless others in wishing retired Justice Sandra Day O’Connor all the best today on her 90th birthday. Her life's journey has been remarkable, from her historic appointment to the Supreme Court to her inspiring civics and judicial selection achievements. IAALS and the public have benefited greatly from her efforts.

In a recent op-ed, Joanne Slotnik, former executive director of the Utah Judicial Performance Evaluation Commission, touts the state’s successful judicial selection system, which includes robust performance evaluation for judges and retention elections by the public.

Nevada, which directly elects nearly all of its state judges, has never implemented an official judicial performance evaluation program. Instead, between 1992 and 2013, the state’s largest newspaper conducted its own surveys of attorneys in Clark County regarding judges seeking reelection until their survey methodology came under sharp criticism. Now the surveys are set to return, with some significant retooling.

Judicial performance evaluation (JPE) took center stage in the Fall/Winter 2017 issue of Voir Dire, the American Board of Trial Advocates’ magazine. The cover story, written by IAALS’ own Rebecca Love Kourlis and Natalie Knowlton, discussed JPE programs in place today around the country and how trial attorneys, in particular, fit into those processes. As one part of the larger O’Connor Judicial Selection Plan, JPE programs assess judges based on objective performance criteria, including surveys of those who work with or appear before the judge being evaluated. Kourlis and Knowlton note that trial attorneys have a unique and critical role to play in these surveys.

As part of the University of Denver’s Engaging Ideas series, IAALS Executive Director Rebecca Love Kourlis was interviewed about the importance of an independent judiciary—and IAALS’ model for sustaining it. In the video, titled “Judging the Judges,” Kourlis discusses how IAALS is helping improve state court systems through the O’Connor Judicial Selection Plan. “Public trust in the judiciary is central to its legitimacy and to its capacity to enforce its orders. Retaining that impartiality, independence, and integrity of the judicial branch, I think in this day and age, is more critical than perhaps it’s ever been.”

No system of judicial selection and retention is perfect; however, merit selection systems attempt to balance judicial independence with voter accountability. Those are the comments of IAALS Executive Director Rebecca Love Kourlis who, along with IAALS Board Member Chief Justice (Ret.) Ruth McGregor of the Arizona Supreme Court, was interviewed by an investigative reporter for a  Goldwater Institute paper on the benefits of using a merit selection system for municipal judgeships.

The Rule of Law is absolutely under attack in the United States of America—from elected officials, state legislative bodies, and groups of individuals. The attacks are apparent in politicians’ tirades, legislative proposals that would limit the authority of courts, and assaults on established principles of law such as federal versus state authority. But, the solution is not to put sandbags along the perimeters and bemoan the idiocy of some people.

With our publication Judges Aren’t Sexy: Engaging and Educating Voters in a Crowded World, we offered a range of practical recommendations—including communications strategies and assets for social media and a messaging platform—for communicating with judicial voters. A handful of states have put our recommendations into practice for this election cycle.

It has been my honor to participate in IAALS’ Quality Judges Initiative as a member of the O’Connor Advisory Committee. Much of my time serving as President of the American Bar Association in 2008-2009 was devoted to efforts to assure adequate funding for the judicial branch of government and to improve judicial selection in order to assure fair and impartial courts; service on Justice Sandra Day O’Connor’s committee was a logical following step after my term as ABA President ended. As a member of the O’Connor Advisory Committee, I have seen firsthand how QJI brings focus to the national debate on judicial selection issues and challenges. We have members who give perspective to the issues from various diverse backgrounds in order to come up with workable recommendations on judicial selection and judicial performance evaluation.

It’s that time of year again, when state legislatures are in session and lawmakers who are dissatisfied with the judiciary and some of its decisions are proposing changes in how judges are selected. This is nothing new: the O’Connor Judicial Selection Plan, which calls for commission-based appointment of judges, has been under attack in a number of states, and there seems to be a pattern to the attacks.