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Improving merit selection of trial court judges

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Improving merit selection of trial court judges

Feb 22, 2024 | 7:00 am ET
By Joel Schumm
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Improving merit selection of trial court judges
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Indiana uses several techniques to choose judges, including merit selection. (Getty Images)

Indiana’s hundreds of trial court judges make thousands of decisions every day. Some, like declaring unconstitutional the statute that limits who can run on a primary ballot, grab headlines. Others, like a child custody decision or ruling in a criminal case, have deep and lasting consequences for the parties in the case.

Voters select superior court judges in partisan elections in all but three of Indiana’s counties. Electing judges has long been criticized on at least a few fronts.  Fundraising creates concerns about conflicts of interest, particularly when attorneys who will be appearing before the judge are the leading contributors. Instead of making important decisions in court, judges must spend their time raising money and campaigning. Moreover, the public has little information from which to cast an informed vote. This November, judicial races will again be near the bottom of a crowded ballot that includes President, Senator, Congress, and a slew of other offices.  

I’ve long been a fan of “merit selection,” where a committee reviews applicants under defined criteria and then sends a short list of the finalists to the Governor for appointment. These appointed judges must run for retention (those “yes” or “no” questions at the end of the ballot) shortly after appointment and again every six years.

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Merit selection has gotten some bad press recently—and with good reason. First, in 2021, the General Assembly rewrote the statutes for merit selection in Lake and St. Joe County, giving the Governor considerable new influence. And just last month a federal judge expressed “substantial doubts” about the state’s compliance with Section 2 of the Voting Rights Act of 1965 because Indiana does not allow the voters in the three counties where roughly two-thirds of the state’s Black voters live (Marion, Lake, and St. Joseph) to directly elect their Superior Court judges. He reluctantly upheld the statute but expressed particular concern about the following line from an affidavit submitted by the Secretary of State’s General Counsel: “A merit selection process is essential in a highly populated and highly diverse jurisdiction like Lake County to provide safeguards for limiting political influence in Lake County superior courts.”

Instead of abandoning merit selection, we should improve it by treating large counties the same and acknowledging political reality. 

Treat similar counties similarly

Statutes are usually expected to be “general, and of uniform operation throughout the State.” It is difficult to justify treating similarly sized counties (or the voters living in those counties) differently. The implication that “political influence” needs to be restrained in “highly diverse” jurisdictions is dubious, if not, offensive. Why should Hamilton County, with a population of more than 350,000, elect its judges if St. Joseph County, with some 80,000 fewer residents cannot? 

A statutory line should instead be drawn by population. For example, merit selection is used to select judges in counties with a population greater than 250,000 people in Arizona. Doing the same in Indiana would bring Hamilton and Allen County (where only mid-term vacancies are currently filled by merit selection) into the merit selection fold.

Acknowledge political reality

An applicant’s “political affiliation” is not supposed to be considered by the selection committee or Governor in Lake or St. Joseph County. In practice, however, the applicant pool, finalists, and appointed judges will vary based on who is Governor. Marion County’s process does not pretend otherwise. By statute no more than 52% of Marion County judges may be from the same political party, a point made clear to prospective applicants. Earlier solicitations were even more blunt, such as a 2022 announcement of a “Democratic party vacancy.” 

Ensuring broad representation of diverse backgrounds on the bench is admirable. An even better approach would be to require some percentage of judges, like the broader population, be unaffiliated with either party. But that is unlikely.

If we cannot make merit selection better, however, I hope we at least don’t make it worse.