Judicial Retention Elections under Nebraska’s Merit Selection System for Judges
In a retention election, voters decide whether a judge should be retained on the bench or removed from office.
A judge must run for retention in office in the first general election that occurs more than three (3) years after his or her appointment, and every six (6) years thereafter. When a judge runs for retention in office, the question presented on the voters’ ballots states: “Shall Judge ___________ be retained in office?” If there are more votes to retain a judge than to remove him or her, then the judge remains on the bench for an additional six (6) years.
The Judicial Retention or Merit Selection System was adopted by Nebraska voters as a constitutional amendment in 1962. Originally, it applied only to the selection of judges to the Supreme Court and district courts. Since then, it has been extended to include all of Nebraska’s state judges.
Although no judicial selection system is completely free of politics, a process using merit selection and retention elections more often results in:
Judges who are highly qualified: Merit Selection judges are appointed by the governor, but the appointment is made after a politically balanced, nine-member commission reviews applicants, evaluates their qualifications, and holds public interviews. Comments from the public are encouraged and considered in the selection process. For each judicial vacancy, the commission selects at least three nominees whose names are sent to the governor for consideration and appointment.
Nebraska’s nominating commissions are regionally-based and represent a cross-section of the population. The governor appoints four nonlawyers, no more than two of whom may be from the same political party; and the Nebraska State Bar Association elects four attorneys, no more than two of whom may be from the same political party. The Chief Justice or a justice of the Supreme Court chairs each commission.
Commissions have lawyer and nonlawyer members to assure the participation of interested civic and community leaders from both the legal community and the community at large. Lawyer commission members have an obvious interest, apart from their status as citizens, in the selection of quality judges. Nonlawyer commission members serve an important role in the nomination process by representing the interests of the general public.
Fair and Impartial Courts: Merit Selection judges do not campaign for office so they are free from political influences for which supporters may expect to be re-paid in some manner. Judges are sworn to uphold the constitution and serve everyone in a fair and impartial manner.
Diversity: Every qualified judicial applicant has an equal opportunity to be selected through a Judicial Nominating Commission – unlike popular election which requires individuals to raise increasingly large sums of money from supporters with special interests or expectations. Merit Selection of judges makes it possible to create a judicial system reflective of the community without the costly burden of financing a campaign.
Accountability to the Public: Judges appointed by the Merit Selection process are placed on general election ballots every six (6) years for the public to determine if they should be retained in office, giving voters the final say about who serves as a judge in their area.
Merit Selection, as the name implies, allows lawyers to apply for judgeships based on the merit of their work. It emphasizes the selection of judges based upon their professional qualifications rather than political name recognition and is the most effective way to ensure that Nebraska has fair and impartial courts.
For a detailed description of the above listed criteria, please review the American Bar Association's Guidelines for Reviewing Qualifications of Candidates for State Judicial Office: http://www.supremecourt.ne.gov/commissions/aba-manual.shtml
Nebraska Judge’s Judicial Profile: For biographical information about judges on the ballot this year, look for judges’ Judicial Profiles online: http://supremecourt.ne.gov/press/judge-retention.shtml
Nebraska Bar Poll: Each election year the Nebraska State Bar Association asks lawyers to evaluate each judge on the ballot on a wide range of attributes. The results of this evaluation are available in early fall each election year at: http://nebar.com/displaycommon.cfm?an=1&subarticlenbr=78
Voters should consider more than the outcome of one case when assessing a judge’s performance because:
Our system of government is carefully designed to foster fair and impartial courts while maintaining judicial accountability through a series of checks on judicial power.
In these ways, courts are accountable to the laws, to the constitution, and to the people.