A Social Justice Agenda for Achieving Fair and Impartial Courts

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Significant reform is needed to ensure impartial state courts that treat LGBT people and people living with HIV fairly and inspire confidence among the diverse communities these courts serve. It is time for advocates in all states to take action by pushing measures to strengthen judicial independence, promote judicial diversity and expand access to justice. Specifically, we offer seven recommendations that are key components to advancing a social justice agenda for achieving fair and impartial courts.

A. Stop Electing Judges

It is time to stop putting our rights—most especially our constitutional right to due process—at risk by continuing the practice of electing state judges. The damaging consequences resulting from the explosion of political and special interest group involvement in judicial elections, and in particular, the impact on the legal rights LGBT people, has become undeniably clear. Similarly, retention elections are now systematically targeted by politicians and special interest groups.

State court judges must decide cases based on constitutional and legal principles—not political pressure, popular opinion or fear of retaliation. In too many ways, judicial elections undermine judges’ ability to perform their essential role as independent arbiters of the law. The need to appease voters, special interest groups and political partisans threatens judicial independence and integrity in states that require candidates to face off against each other. Furthermore, the increasingly corrosive influence of money in elections, combined with the escalating assault on reasonable regulation of judicial campaign conduct, have made efforts to reform judicial elections very difficult. Selection and retention by popular election is no way to ensure access to justice for marginalized, politically unpopular and disenfranchised populations or to inspire public confidence in our court system.

Ending judicial elections won’t be easy. Recent efforts to replace judicial elections with commission-based appointment systems have stalled, and many states’ merit-selection systems have only narrowly survived repeated attacks by political partisans. Dynamic campaigns led by diverse national, state and local organizations will be required, and social justice groups that understand why access to fair and impartial courts that safeguard the rights of all people is so critical must champion those efforts.

B. Institute Commission-Based Appointment of Judges (Merit Selection)

A commission-based appointment system of selecting judges based on merit is the best way to ensure due process, boost public confidence in the courts, improve the quality of justice and guard against money and political influence affecting judicial decision-making. The task of a judicial nominating commission in a merit selection system is to solicit applications for judicial vacancies, screen and interview candidates, and recommend a list of the most qualified candidates to the appointing authority—usually the governor. Currently, 22 states use a commission-based appointment method to select high court judges. Many states with contested elections already use commission-based appointment to fill interim supreme court vacancies. There are several states that select high court judges through a commission-based appointment system without the use of retention elections.

Not all commission-based systems are created equal. The value of such a merit system depends on proper design and effective function. Drawing on the expertise of our colleagues at Justice at Stake, the Brennan Center for Justice at NYU School of Law, and the Institute for Advancement of the American Legal System, we recommend that the best commission-based appointment systems should include at least the following elements:

  • Judicial nominating commissions that consist of commissioners who are professionally, politically, geographically and demographically diverse. Diversity in nominating commissions should be established by statute when possible.
  • Clearly established and published procedures for how judicial nominating commissions will operate, with written ethics procedures for conflicts.
  • Mandatory implicit bias training and diversity training for commissioners.
  • Clarity and prioritization of diversity in the nominating process and strategic recruitment measures to ensure wide distribution of judicial opening announcements.
  • Transparency in the application and interview process, and published record keeping.

C. Promote Judicial Diversity

A state judiciary diverse in race, ethnicity, gender identity and expression, sexual orientation and lived and professional experience serves not only to improve the quality of justice, but to improve public confidence in the courts. It is absolutely critical that state judiciaries be composed of judges who truly reflect the diversity of the population and understand the issues facing the communities they serve. Social justice and human rights organizations can and should be on the front lines of pushing for diverse, high-quality, and fair state court judges.

One of the best ways to promote judicial diversity is to advance a properly designed merit selection system with a judicial nominating commission that prioritizes diversifying the judicial bench. Advocates can also play a critical role by educating their constituencies about the importance of judicial diversity; disseminating vacancy announcements and encouraging individuals to pursue a path to the bench; holding elected and appointing authorities responsible for their diversity records; and advocating for improved data collection on the diversity of all applicants and judges that is inclusive of sexual orientation and gender identity.

D. Strengthen and Defend Judicial Codes of Conduct

Judges are not politicians. The rules that govern judicial campaign conduct in the 38 states that require at least some judges to stand for election are essential components of ensuring the independence, impartiality and fairness of the judiciary. In recent years, rules regulating judicial campaign conduct have been attacked as unduly restrictive of candidates’ free speech rights. At a time of rising spending and politics in judicial elections, rules that preserve the public’s confidence in the judiciary and protect the due process rights of litigants are more important than ever.

Social justice advocates should encourage state courts and legislatures to adopt and strengthen reasonable rules governing judicial campaign conduct. Protecting and promoting these rules is important as a means of safeguarding the due process rights of litigants and preserving public confidence in state courts. Judges are charged with safeguarding our cherished rights and liberties and ensuring equal access to justice for all. Social justice advocates should oppose weakening rules to allow candidates for judicial office to campaign against the rights of many of the vulnerable communities or politically unpopular groups judges have a duty to serve.

E. Support Anti-Bias and Cultural Competency Training

Ensuring that state judges are fair-minded and approach the decisions they make without bias or prejudice is of utmost importance both for our legal system and for the rights of vulnerable people, whom our legal system has an obligation to protect. Implicit and explicit bias poses a serious threat to securing fair and impartial state courts. Cultural competency and anti-bias education strengthen the state court system, affirm the dignity of court users, and work environments of judges, court staff and attorneys.

Improving the cultural competency of the bench with regard to gender and sexuality issues, and equipping legal practitioners with resources to curb LGBT bias, will increase the likelihood of fair and just results in court proceedings for LGBT people. Social justice advocates can work with organizations like Lambda Legal to become part of our emerging network of educators who have the skills and training to deliver antibias and cultural competency trainings to state court systems in all regions of the U.S.

F. Engage Constituencies by Educating Community Members About the Importance of Fair and Impartial Courts

State courts have broad authority to protect or restrict the rights of LGBT people and people with HIV, and they decide fundamental cases that touch on nearly every aspect of life and every issue. It is critical for more social justice and human rights advocates to promote the connection between fair courts and important rights and issues affecting our communities. For example:

To better understand how state courts impact fundamental rights and how these courts are being targeted, see the Piper Fund’s series of Fair Courts Toolkits, available at www.proteusfund.org/piper/resources.

 


 

1. Joshua A. Douglas, “The Right to Vote Under State Constitutions,” 68 VAND.L.REV. 89 (2014).

2. Id.

3. Dawn Johnsen, State Court Protection of Reproductive Rights: The Past, the Perils, and the Promise, 29 Columbia Journal of Gender and Law 41 (2015), available at http://acslaw.org/sites/default/files/pdf/Johnsen-Appendix-B-Anti-Aborti...

4. Id.

5. State ex rel. Morrison v. Beck Energy Corp., 143 Ohio St.3d 271, (Ohio 2015).

6. League of Women Voters of Fla. v. Detzner, 172 So. 3d 363 (Fla. 2015).

 

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