Experts dissect judicial selection bill

Widener University law professor Michael Dimino and Northwestern law professor Stephen Presser offered insight on the advantages and disadvantages of electing judges rather than the governor appointing them during a luncheon hosted by the Las Vegas Federalist Society.

The discussion was timely; Senate Majority Leader Bill Raggio, R-Reno, has proposed a new plan that calls for a Judicial Selection Commission to nominate three candidates for an open bench seat. Under the proposal, Senate Joint Resolution 2, the governor would choose one from the list.

The judge’s term would be short, one or two years compared with the six-year term currently in place. The judge would run in a retention election that requires 60 percent of the vote to retain the seat.

Under Raggio’s plan, a Judicial Performance Commission would review the judge’s performance and make the report public before the election.

Nevada judges currently are elected.

While Presser supports an initiative similar to Raggio’s proposal, he is opposed to the retention election. Judges should instead be placed on the bench for life and periodic performance reviews will determine whether they stay on the bench.

The public isn’t necessarily equipped to determine who is the most qualified candidate, said Presser, who is a proponent of appointed judgeships. The most common platform for judges is that they will crack down on criminals. That is tough to dispute before they take the bench, he said.

Retention elections are worse, Presser said. The public isn’t interested and that is why 99 percent of the incumbent judges are voted back into office.

Dimino opposes the appointment process called for in Raggio’s bill. But, he said, whether a judge is elected or appointed, the same special interest groups will throw money at the process.

During elections, those groups fund the candidate. If they are appointed, the groups will shower legislators and the governor with money, he said.

“Special interest groups have a great interest in electing a judge who shares the same interests,” Dimino said. “They spend a great deal of money on the nomination and confirmation process.”

To rid judicial campaigns of outside influences, Dimino suggested creating a public fund. In North Carolina, judges are given a fixed sum of money to run their campaigns.

Presser believes putting judges in a position where they have to collect campaign contributions creates serious conflicts of interest.

“Judges have to hustle votes, they have to solicit campaign contributions,” said Presser. “They are going to rely on the people most interested in the judges and those are the lawyers.”

Presser said nearly 90 percent of contributors to Nevada judges’ campaigns are Nevada lawyers who appear before them.

Elected judges feel more compelled to rule in favor of popular opinion rather than conforming to the Constitution, Presser said.

Another alternative to keep special interest groups from financially wooing a judge is to force judges to recuse themselves from cases involving attorneys who have contributed to their campaign.

Dimino said that might result in attorneys throwing money at the judge they like least.

Presser and Dimino agreed that the judges’ term should be lengthy; if not a lifetime, then 14 years.

Dimino advocates allowing voters to choose their judges. He said lengthy terms will prevent judges from caving to potential contributors every six years.

Whatever the Nevada Legislature does to change the judicial selection system, it is clear something must be done to keep judges from shaking down attorneys, said Tuan Samahon, associate professor at University of Nevada, Las Vegas’ the Boyd School of Law.

“Things look pretty bad for our courts in Nevada,” Samahon said.