fair courts = justice. the judicial branch “the founders realized that there has to be some place...
TRANSCRIPT
THE JUDICIAL BRANCH
“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
Topics
1. Characteristics of a fair and impartial judiciary
2. Differences between state and federal courts
3. Elements of judicial decision-making
4. 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 in your case❌Public opinion about the issue
you oppose❌Your political party affiliation❌The position of special interest
groups on the issue❌Media reports❌Personal perspectives or
affiliations of the judge
❌Money or contributions
When you walk into the courtroom and face the judge
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 lawand shouldnot 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 selected by the King.
Colonists outlined complaints in the Declaration of Independence citing how the King abused power and controlled the judiciary.
“He (King George III) has made Judges
dependent on his Will alone for the tenure of their offices, and the amount and payment
of their salaries.”
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…
…enforce the law …and interpret the law
…make the law
Total powerin one branch
of the government
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.
Federal and State Court Systems
State Supreme
Court
Appellate Courts
Circuit Courts
County Courts
U.S. Supreme
Court
U.S. Courts of Appeal
U.S. District Courts
appeal
appeal
appeal
appeal
Different Kinds of CourtsFair and Impartial Application of the Law
Trial Court Appellate Court*
Judges sit individually
Juries are present in certain cases
Prosecution or Plaintiff v. Defendant
Attorneys call witnesses and present exhibits as evidence
First opportunity for a case to be heard and establishes facts
Panel of judges
No juries
Petitioner or Appellant v. Respondent or Appellee
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.
STATE OF THE JUDICIARY
“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
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
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.)
States utilize one of three models
• Elections– Either Partisan or
Nonpartisan
• Appointments– Different models in different
states
State constitutions or statutes set methods for seating state judges
Hybrid models – Merit Selection and RetentionUsing Nominating Commissions to review candidates, followed by appointment and retention elections
A matter of meritW
hat I
s M
erit
Sel
ectio
n? • 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.
A matter of meritW
hat I
s M
erit
Ret
entio
n? • 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
Voters decide
Appellate court judges in Kansas go on the ballot for their first retention vote within two years after their appointment
Once appointed, how do judges remain in office?
Merit Selection and Retention
The merit selection and retention process was designed to reduce outside influences on the judiciary
Political pressures Personal BiasesPopular opinionsCorruption Special Interests
✗
Selection of Supreme Court JusticesVoters 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
• 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
• 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
District options for selection of trial court judges in Kansas
Partisan Election
• Half of the 31 judicial districts in Kansas have partisan elections for the trial bench
Merit Selection and Retention
• 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 non-voting 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
THE DANGER OF LABELS
“Judicial Activism”
“Legislating from the bench”
“Judge-made law”
“Conservative” vs. “Liberal” 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 to evaluate judges
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?