SUNDAY EDITION | Debate stirs over bill to let Kentucky governor appoint judges
"I think it’s always best to let the people decide," Republican Sen. Wil Schroder said. "If it's up to me, we should be beholden to the people and not the governor."
FRANKFORT, Ky. (WDRB) -- There's an old saying in legal circles that "to be elected as a judge in Kentucky, you have to be named 'Delahanty McDonald Fitzgerald,'" Louisville Judge Anne Haynie recalled in a recent interview.
In other words, attorneys with a prominent name -- several members of the Delahanty, McDonald and Fitzgerald families have been elected as judges -- have the best chance to win in a field of judicial nominees that citizens typically know little about.
It's no secret that Kentucky's non-partisan judicial elections are often unpredictable with some voters' selections based solely on guesses, ballot placement, gender or name recognition.
With this in mind, a Kentucky lawmaker is floating a different approach: Do away with citizens voting for judges and have the governor appoint them instead.
State Rep. Jason Nemes, R-Louisville, has pre-filed bills for the upcoming General Assembly that would amend the state constitution and allow the governor to pick appellate judges from a list of three nominees provided by the state Judicial Nominating Commission.
Gov. Matt Bevin has supported the idea, saying that Kentucky has "a remarkable number of people who have no business being judges," he told attendees during a September meeting of the conservative Federalist Society. "I mean none. They don't have the competence even to be a private practice attorney."
But Nemes is trying to ensure the proposal does not become a partisan fight, aligning allies from both sides of the aisle and including in the bill a stipulation that the process wouldn't begin until after the next gubernatorial election.
"This is not about infusing partisanship," Nemes told legislators in September. "We should try to get partisanship out of the judiciary as much as we can."
In that vein, Nemes said the bill would have several checks and balances, including letting voters choose whether to keep or oust a judge once an eight-year term is up.
Currently, the commission -- made up of seven people including the state Supreme Court chief justice, two attorneys and legislators on both sides -- is only used to fill vacancies until the next election.
"It allows good, successful lawyers to be appointed to the bench," Nemes said of his proposal in an interview last week, adding that his bills are modeled after the federal judicial process.
While the proposal would only include the 21 Supreme Court and Appeals Court judges, Nemes said he would have no problem amending it now or later to add all 261 other Kentucky judicial seats.
Nemes said the spending on judicial elections has exploded in recent years, with more than a half-million dollars spent in some recent campaigns in Louisville and eastern Kentucky.
"And who funds this?" Nemes said to legislators in September. "It's attorneys. Attorneys fund the system and if that's not a problem, it's certainly a perceived problem that those folks are funding the system and go in front of the judges the very next day."
Rep. Jim Wayne, D-Louisville, has said he supports the bill, in part because of the rising amounts of money spent on judicial elections, telling legislators in September that it is "corrupting democracy."
"Essentially, what you are seeing is, that corporations, the wealthy, can now buy a judge," Wayne said in an interview last week.
In addition, Nemes said Kentucky is not always drawing the best candidates because good attorneys can't take off the necessary year or more needed to campaign.
But Nemes told legislators that he understands the concerns -- "there are very strong arguments against me" -- including that it would appear as if judges would be beholden to the governor who appointed them.
Nemes said, however, that governors only serve, at most, eight years and few cases would involve the interest of a governor.
"The best way to way to preserve the integrity of the judicial system is to get judges out of the business of elections, out of the business of fundraising and out of the business of campaigning," he said.
"Let the people decide"
Former Kentucky Supreme Court Chief Justice Joseph Lambert is effusive in his regard for Nemes, who worked under Lambert for years as head of the Administrative Office of the Courts.
But Lambert disagrees with the proposal to turn judicial appointments over to the governor.
After studying the issue and writing a law article about it 20 years ago, Lambert concluded that no two states elect judges the exact same way and there is "no perfect system," he said in an interview last week.
"If there was a best practice out there, there would have been a coalescence around what that was," he said. "Literally, there is no best. But non-partisan judicial public elections is the least bad. It is the best of a bad lot."
For starters, Lambert said, it would be impossible to keep partisanship out of judicial nominations if the governor had sole final approval. If one party stayed in power for many years, the governor could stack the bench with partisan appointments.
"Instead of thousands of people participating, you have a decision made by one person," Lambert said. "The best system is to eliminate partisan politics from the equation as much as you can."
And current Supreme Court Justice John Minton Jr. agrees, saying Kentucky purposefully moved away from the governor picking judges in 1850 for that very reason.
"We wanted to take politics out of judicial elections," he said in an interview. "The judicial branch is an independent check on the executive branch."
As an additional check on the governor's power, Wayne said he has talked with Nemes about amending the bill to allow the state Senate to vet the judicial nominees, subpoenaing records and testimony, the same process by which U.S Supreme Court justices are named.
"That vetting process would give the public an opportunity to comment, make observations and learn about the candidates before they are approved," Wayne said.
In September, when Nemes spoke to legislators in the interim joint committee on state government, Republican Sen. Wil Schroder, whose father was a state Supreme Court judge, put up the most spirited fight against the bill.
"I think it's always best to let the people decide," Schroder said. "If it's up to me, we should be beholden to the people and not the governor."
As far as the cost of judicial elections rising, Schroder said that is an issue with all elected officials; and the fact that attorneys are the biggest donors is not a bad thing.
"They are the ones around the judges; they know the judges," he said. "They are also the ones that have the most at stake."
Nemes politely responded: "For every Justice Schroder, there is an election where someone won because of who their daddy is."
According to the Institute for the Advancement of the American Legal System at the University of Denver, 22 states have voters elect judges, governors appoint judges in 26 states and legislators elect them in South Carolina and Virginia.
The institute, a group of judges, political officials and a legacy project of retired Supreme Court Justice Sandra Day O'Connor, has for years pushed for states to appoint judges on the basis of merit, instead of choosing them based on their ability to win an election.
Rebecca Love Kourlis, executive director of the institute, said states with judicial appointment procedures similar to what Nemes has proposed have seen fewer disciplinary proceedings against judges, increased public trust and confidence in the judiciary and more diversity on the bench.
"I think people are increasingly realizing that (having judicial candidates campaign for votes) puts judges, in reality and appearance, in a tough spot," Kourlis said in an interview. "They are not politicians. They are not supposed to be politicians. They are supposed to be applying the law."
And while citizens in states with this appointment model have expresses initial skepticism, Kourlis said most end up pleased with the results.
"People worry about losing control, losing the right to vote," she said. But with a retention election, citizens "still do have the right to vote. Retention elections are elections. They just have to vote up or down on a person based on their record. They don't have two candidates shouting at each other and pointing out failures. Genuinely people in these state feel it is a good balance between impartiality and accountability."
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