POSC 130g 1st Edition Lecture 10 Current Lecture Political Question Doctrine basic idea is that some issues that people want to take to court are so controversial that the courts consider them too hot to handle The Supreme Court has carved out three areas that they tend to designate as political questions Foreign police Goldwater v Carter case Constitutional Amendments Kansas v Muller When there has been a case involving extending the time for political ratification of amendments It makes the Supreme Court look bad by dealing with amendment cases Cases that involve Republican form of government the US should guarantee every state a Republican form of government Election in Rhode Island attempt to set up a new constitution The government passed a law to prohibit the new constitution from coming into effect Luther Gordan v Martin Luther 1849 In 1962 in Baker v Carr the plaintiff said the mal proportionate voting violate equal waiting of voting Judicial Selection What are the methods for choosing the best judges Be practical have practical skills and reasoning Salomon as the judge two women argued over a baby baby being pulled across a line or being torn he devises a test to see what mother is the true mother This suggests that judges must be crafty and have a certain approach to problem solving What should the process of selecting judges What should the criteria be How should judges be held accountable Tension between judges that are independent and not subject to the political process but be accountable in a democracy and if they render decisions that are not liked they should be held accountable There is less longevity if elected or judges should be protected from political pressure and serve a life term State Judges judges are either selected by election or appointment A combination of these systems exist in both states All federal judges are appointed senate has to confirm by a simple majority Judicial politics pressures American leaders were concerned of the blatant misuse of judicial offices by elites Historical background concern with avoiding manipulation of judges Basic principle serving during good behavior In England there was a law passed to guarantee judges commission and salary the Act of Settlement in 1701 This didn t work because judges can be removed from both houses of Parliament and if the judges rendered decisions the king didn t like they could be taken off the bench Parliament agreed that decisions of judges were protected finally These lessons weren t lost on the American system The executive could have that much power over judicial system State judicial appointments were placed under legislative control modified executive appointments so they were in the hands of the legislature or there was a legislative vote There had to be a legislative council to approve the judges Judges could serve if they had good behavior Increasingly with the drive towards a more popular form of government part of Jacksonian democracy there was a desire for more popular sovereignty In the mid later part of the century there were reforms made in the selection of judges Public flogging extended franchise to more people less use of the death penalty change of what had been appointed offices to elected offices State legislatures decided to have elected judiciaries Most states set up mechanisms to allow for dominance of elections Elections have remained the most common method of selecting judges Latter part of 19th century greater concern with popular sovereignty Elections most common method for choosing state judges Why should judges be able to run an election Concern with democracy and accountability they have to run for elections or reelections They have to face retention elections if they were first appointment and then to retain their seat The term that they are in office varies sometimes 4 year sometimes life tenure Variations from state to state on term in office There is usually not a lot of competition for the judicial positions incumbent advantage more of the writing about judicial elections is that they are seldom a real contest not thought to be good etiquette for judges to campaign More federal scrutiny of state judges judges of different backgrounds should be elected Merit plan American Judicature Society 1918 organization that promoted this this group promotes reform in the American judicial system early on looked for new methods of judicial appointment Proposed having elected chief justice fill vacancies on the bench List if nominees to be compiled by judicial commission Harold Laski alternative governor of the state should be the chief nominating official not chief justice Missouri Plan Missouri adopted in 1940 for some of its courts sometimes called the ABA Plan American Bar Association or Nonpartisan court plan take the politics out of the process There are three main features establishing a commission consist of lawyers judges and public selecting one of the nominees to serve for a short term elected official would pick people to serve for a short term usually governor designates nominees to serve for a short period of time and then judge would face electorate in a referendum there would be a basic question of the ballot should this judge be retained in office Commission devises list and governor picks for it Set up three different commissions different commissions for state appellate and trial courts Judges in the Missouri system would have to appear on ballot after serving one year if they won by the voters they got to serve for six years The Merit plan didn t catch on as not that many states adopted it California was the first to adopt the Missouri Plan at least for the appellate bench in California instead of the commission giving names to governor the governor sends name to commission of three people and the commission of three people state chief justice Sakai attorney general Pamela Harris and judge of court of appeals Judge Demsey Klein ratifies Is it better to have elections or mixed method of appointment system and retention election In New York trial judges run for election while appellate judges are chosen Should there be more accountability for trial and less for appellate Is this democratic Merit election Alaska Colorado Wyoming appears that there is a regional principle that functions but that is a theory and there are patterns geographically Pros Cons of Merit Plan Pros avoidance of partisan politics and selection of superior judges Cons merely shifts