A recent Gallup poll, taken in September, indicates that the US Supreme Court’s approval rating has never been lower — since 1972, when the survey began production. Only 40% of the country’s population approves of the court’s work – 58% of respondents disagree and 2% have no opinion.
Most people think the Supreme Court is highly politicized, as is the federal judiciary as a whole, and judges in most states are elected. Hence, it has become fashionable in the country to question the legitimacy of the courts, which has worried the Chief Justice, Justice John Roberts and other judges.
The root of the problem is not the judges, but the system of appointments to the highest posts in the judiciary, which is highly politicized. Thus, much is said about the reform of the system. One proposal gaining traction is to follow the model adopted by Missouri in the 1940s of appointing ministers to the Supreme Court and judges to the lower courts — a model that has left politics behind.
Merit based selection
Missouri It is proud to have a cadre of talented judges, fair and impartial, without compromise with Republicans or Democrats, for more than 75 years, thanks to its judicial selection system. Unlike the federal system, in which the nation’s president nominates the Senate for confirmation after consulting with his political allies, in Missouri a nonpartisan judicial selection committee prepares a merit-based triple list of candidates for governor. Select a name.
Known as the “Non-Party Cut-off Scheme”. Missouri Project, established that the State Judicial Examining Commission shall consist of seven members: three from various parts of the state appointed by the governor; three attorneys appointed by the division of the local class organization; And the president of the state’s high court – as he calls himself Supreme Court of Missouri.
In case of vacancies in the High Court, in one of the three Appellate Courts in the State or in the Courts in some large cities, applications are opened for the vacancy. Between 20 and 40 members of the legal community typically apply. From this panel, the commission selects three candidates and sends a list of three to the governor to select one, based on their legal qualifications, who will be nominated for office within 60 days.
A peculiarity of the Missouri system is that the judge appointed to the position has one year to prove his qualities to the voters—that is, to prove that the commission’s choice was correct (and always is). At the next general election, your name will be on the “Permanent Vote” (Retention voteas in the expression “retention of talent”): voters will decide whether he should remain in office or not.
The question on the ballot: Should the judge remain in office — yes or no? There are a few ways voters know how to respond. One is the American Bar Association (ABA) category rating, which gives an idea of a judge’s performance. For example, voters can ascertain whether the magistrate decides cases within a reasonable time frame, whether he makes decisions based on well-founded analyses, and whether he treats lawyers, advocates, and litigants with due respect.
Under the Missouri plan, superior court judges and appellate court judges must retire at age 70. At the federal level, ministers and other federal judges hold office for life – and they leave office only by death, voluntary retirement or, in very rare cases, impeachment. On the current Supreme Court, Justice Clarence Thomas is 74 and Justice Samuel Alito is 72.
In Missouri, the chief justices of the high court and courts of appeals serve only two-year terms — unlike the Supreme Court, where the office of president is for life. In its 233-year history (1789 to 2022), the U.S. Supreme Court has had only 17 presidents (instead of 117 for two-year terms). According to the newspaper Columbia MissourianSuch procedural changes limit the transparency and legitimacy of the courts.
Disadvantages of elections
A few states are trying to follow Missouri’s example, but most still struggle with its complex systems for electing superior and lower court judges. One of the main problems with the electoral system for judges is the cost of campaigning. According to the website Missouri Project, from 1990 to 2000 this cost was approximately US$ 83 million; From 2000 to 2010, it was $206 million (so doubling in a decade).
An obvious conclusion is the influence of money on court decisions. Companies and organizations invest heavily in the election campaigns of judges, before whom they appear to be responding to certain processes or making claims against other parties. That’s fueled criticism that trust in the judiciary is so difficult that the judge owes thousands of dollars in campaign contributions.
In Missouri, this problem does not exist because there are no elections for judges holding high positions in the judiciary—except for the “remaining vote” of a judge in office, and there are no campaign contributions. election In other words, this system eliminates the avenues of corruption common in other states.
The task is almost impossible
As much as members of the legal community insist that the federal judiciary follow the Missouri model, reforming the way federal ministers and judges are appointed will not be easy to implement. Dependent on constitutional amendment. Some people say that changing the constitution in America is prohibited, but lack of political will is the biggest problem. The process of confirming federal ministers and judges in the Senate is a political circus that gives senators a lot of media exposure. It competes only with impeachment of the Speakers of the House and Senate.
João Ozorio de Melo is a reporter for the magazine legal advisor In America.
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