FixitTogether.org

Summary of our proposed amendment

The federal judiciary has become politicized. It is a focal point of contention and controversy in national politics. Republicans complain about judicial activists. Democrats complain that the Supreme Court has become too conservative. The confirmation hearings of nominees to the Supreme Court have become some of the most contentious proceedings in Congress. Most Americans agree: something needs to be done to reform the federal judiciary.

Several times in our nation's history, we have modernized the selection procedures for the President (the 12th Amendment in 1804, the 20th Amendment in 1933, the 22nd Amendment in 1951, the 23rd Amendment in 1961, and the 25th Amendment in 1967) and the Congress (the 17th Amendment in 1913 and the 20th Amendment in 1933). Our method of judicial selection, however, has stood unchanged for over two centuries, and it is broken. At the founding of our nation, most states imitated the federal system, with governors appointing judges. Since the mid-1800's, though, there has been much innovation and experimentation among the states in judicial selection methods. Most states have discarded gubernatorial appointment. The most common forms of judicial selection in the states are elections and merit selection. Both systems have been effectively implemented all over the country, with very positive results. Academic studies comparing judges selected by non-partisan elections and merit systems shows that they both lead to the selection of qualified, competent judges. These systems have stood the test of time. It is time our country left the 18th century behind and adopted a modern judicial selection system. Our proposed amendment retains presidential appointment of judges, but incorporates elements of judicial selection systems that have been very effectively adopted in the states

Judges are unique among public officers, because we want them to be unbiased—they should dispassionately apply the law to the facts in the case at hand. At the same time, they are still government officials within a democratic republic, and we expect them, on some level, to be accountable to the people. A judge shouldn't have so much independence, for example, that he can ignore the law altogether and enforce his own personal policy preferences. Judicial elections ensure judges' accountability, but can also lead to a loss of their independence. Elections can interfere with judges' ability to dispassionately apply the law to cases that come before them. Two characteristics of some states' judicial elections have especially upset the delicate balance that should exist between independence and accountability: partisan judicial elections and campaign fundraising. In states with partisan elections, there is a significant danger that judges will feel so constrained by partisan forces that they do not apply the law in an unbiased manner. Similarly, in systems that allow unfettered campaign contributions to judges' campaigns, judicial elections become a contest dominated by trial lawyers, who donate large sums of money to judges' campaigns, with the expectation their donations will influence judges' decisions in cases.

An alternative to non-partisan judicial elections is merit selection of judges. Merit selection started in the early 20th century, as an alternative to judicial elections and gubernatorial appointments. Under merit selection, judges are first appointed, and then go before the voters after serving a term in office. Candidates for judicial vacancies apply to a lawyer-dominated selection commission, which evaluates the candidates and narrows them down to a list of three. The three names are forwarded to the governor who has sixty days to select one to fill the judicial vacancy. If the governor does not select one of the three to fill the position within those sixty days, the committee will then make the selection. After serving a term in office, the judge must then stand in a “retention election.” If a majority of voters vote against retention, the judge is removed from office, and the process starts anew. Some criticisms of merit selection are that it gives trial lawyers too much control over the selection process, since selection committees tend to be dominated by lawyers. Another criticism is that the selection committees are too politicized, and that the merit selection process makes it difficult for citizens to understand the politics behind selection decisions. A related criticism is that there is a lack of transparency in the selection process.

Our proposal combines the best parts of both systems. Judges are still selected by the President, with the advice and consent of the Senate. Before the judge takes office, however, he has to be approved in an election before the people who live within the jurisdiction of the court where he will serve. In such elections, fundraising is prohibited. Our proposal also sets up a non-partisan judicial qualifications commission to provide ratings of judges to voters to help them make informed decisions. Judges serve terms of six years. When a judge's term ends, he must go before the voters again in a retention election, where voters can vote whether to retain the judge or whether to vote him out of office. Our proposal also imposes term limits on judges, limiting them to two six-year terms.

To clarify how courts are supposed to interpret the Constitution and other laws, our proposed amendment states that judges should interpret the Constitution and laws according to the meaning of their text as it was understood at the time they were adopted. To help judges interpret laws, our proposed amendment requires that Congress directly state in every law it passes what part of the Constitution gives it the authority to pass that law. It also imposes a duty on every member of Congress to vote against any legislation they believe to be unconstitutional. It also imposes a duty on the President to veto any legislation he believes to be unconstitutional.

Text of our proposed amendment

An amendment to reform the federal judiciary is supported by 74 percent of Americans. Our proposed amendment text for a Federal Judiciary Amendment is:

Section 1. No person appointed as a judge or justice pursuant to Article III of this Constitution shall take office until he has been approved in a nonpolitical and nonpartisan vote of the people living in the area over which the court to which he has been appointed has jurisdiction, except that judges appointed to any Article III appellate court having jurisdiction over the District of Columbia shall be approved by a vote of the Electors in all the several States. Such votes shall take place not less than one hundred and eighty days after the Senate has given its advice and consent. The Electors in any such vote shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature in which the Elector resides; such elections for judges and justices shall occur on the same day determined by Congress for the election of members of Congress. A majority of the Electors voting in such elections must approve of a justice's or judge's appointment; if the appointee fails to win a majority approval vote, he shall not take office, and may not be appointed again to a position as a justice or judge for a minimum of ten years.

Section 2. Congress may establish a system of public financing of judicial elections to allow judicial appointees to inform the public about their qualifications; no judge or justice, nor judicial appointee may accept any campaign donations or financing from any private party. No attorney or other party may appear before a judge or justice for whom he has campaigned, made public statements of support, or made any other expenditures of effort or money that supported the justice's or judge's candidacy, unless the opposing parties in the case consent. If the opposing parties do not consent, then the judge or justice must recuse himself from the case. The expenditures or statements of support made by any attorney shall be imputed to all attorneys working in the same legal organization. Any individual or group making expenditures to support or oppose a judicial appointee shall fully disclose the amounts spent, how the funds were spent, the source of the funds, and clearly disclose the major sources of its funding in all general communications supporting or opposing an appointee. Congress may enact appropriate legislation to enforce this requirement.

Section 3. A justice or judge of any court shall retire from judicial office at the end of the calendar year in which he attains the age of 75 years. The Congress may by law provide for recalling retired judges to temporary active service on the court from which they are retired, except for the Supreme Court, provided such law requires the retirement of judges for physical or mental disability or any other cause rendering judges incapable of performing their judicial duties, and that such law establishes objective standards defining when such disability occurs.

Section 4. Justices of the Supreme Court shall serve staggered terms of six years. Their terms shall end at noon on the third day of January, and the terms of their successors shall then begin; the terms of one-third of the justices shall expire on every odd-numbered year. All other judges in courts established under Article III shall also serve terms of six years, which shall end at noon on the third day of January; the terms of one-third of the judges on any court shall expire on every odd-numbered year. After the expiration of a judge or justice's first term in office, he may serve a second term if he is again approved in a nonpolitical and nonpartisan vote of the people living in the area over which that court has jurisdiction, in the same manner as described in Section 1 of this article. No judge or justice may serve more than two terms on the same court, and no person may serve more than a total of 18 years in any capacity as a federal judge or justice. If a judge or justice has served more than one-half of the unexpired term of another judge or justice, then he shall have been deemed to have served a full term in that position.

Section 5. The terms of all justices and judges presently serving when this article is adopted shall not expire immediately; the terms of the one-third of justices sitting on the Supreme Court at the time this article is adopted, and the terms of one-third of appellate and trial judges sitting within each Circuit at the time this article is adopted, who have served the longest period of time in that court and who have served at least six years, shall expire at noon on the third day of January of the next odd-numbered year after the adoption of this article, and the terms of their successors shall then begin. The terms of the next one-third of judges and justices who have served the longest period of time in that court, and were sitting in each court when this article was adopted and who have served at least six years, shall expire two years after noon of the third day of January of the next odd-numbered year after the adoption of this article, and the terms of the final one-third of judges and justices shall expire two years later. Any justice or judge serving at the time this article is adopted, whose term expires under the terms of this Section, may serve one additional six-year term in office, if he is approved in a nonpolitical and nonpartisan vote of the people living in the area over which that court has jurisdiction, in the same manner as described in Section 1 of this article, provided that the justice or judge has not already served nine years in his present office, and provided that he has served less than a total of 18 years as a federal justice or judge. Congress may adopt necessary legislation consistent with this article further regulating the expiration of the terms of justices and judges serving at the time this article is adopted, in order to ensure the terms of equal numbers of justices or judges within each court expire in each odd-numbered year, consistent with the deadlines and terms in office established by this article.

Section 6. The Congress shall provide by law for the establishment of non-partisan judicial qualifications commissions which shall have such powers as Congress may provide, including the power to investigate complaints against any justice or judge and to conduct confidential hearings concerning the removal or involuntary retirement of a justice or judge. A commission shall be established having authority over the Supreme Court and all other courts established under Article III having jurisdiction over, or located in, the District of Columbia; separate commissions shall also be established for every other Circuit Court of Appeals, or their equivalent, having authority over all courts established under Article III within the geographic area of jurisdiction for that Circuit Court of Appeal. Each commission shall be composed of six attorney members and fourteen non-attorney members, appointed by the President, with the advice and consent of the Senate. Attorney members of each commission shall have been citizens of the United States for not less ten years and be admitted to practice before the Supreme Court for not less than five years. Not more than three attorney members shall be members of the same political party. Not more than one attorney member shall be resident of any one State, except if the commission on which that member sits has authority over fewer than six states, then Congress may provide for the maximum number who may be from any one State, but such commissions must have at least one commissioner from every State over which the commission has authority. Non-attorney members shall have been citizens of the United States for not less ten years and shall not be judges, retired judges, or currently or previously licensed to practice law in any place. Not more than seven non-attorney members shall be members of the same political party. No more than one non-attorney member shall be resident of any one state, except if the commission on which that member sits has authority over fewer than fourteen states, then Congress may provide for the maximum number who may be from any one State, but such commission must have at least one commissioner from every State over which the commission has authority. None of the members of the commission shall hold any other governmental office, elective or appointive, and no member shall be eligible to become a justice or judge until eight years after he ceases to be a member. Attorney members of the commission shall serve staggered four-year terms and non-attorney members shall serve staggered six-year terms. No commission member may serve more than two terms. Any commission member who has served more than one-half of the unexpired term of a previous commission member will be deemed to have served a full term. The judicial qualifications commission may decide to censure, remove, or retire a justice or judge for action which constitutes willful misconduct in office, willful and persistent failure to perform his duties, habitual intemperance, disability that seriously interferes with the performance of the duties or conduct prejudicial to the administration of justice which brings a judicial office into disrepute, except that the Senate shall have power to overturn a commission's decisions, by a three-fifths vote. The House of Representatives shall still retain its power of impeachment and the Senate shall still retain its power to try impeachments, as previously established by this Constitution.

Section 7. Congress shall establish, through appropriate legislation, a process for evaluating judicial performance, on the sole basis of judicial merit, to be administered by the judicial qualifications commission having authority over the court where the justice or judge sits. The factors to be considered in evaluating a justice's or judge's judicial merit shall include, but not be limited to, conduct in office, satisfactory performance of duties, and judicial temperament. The process of judicial performance evaluation shall include written performance standards and performance reviews which survey opinions of persons who have knowledge of the justice's or judge's performance, including all attorneys who have appeared before the justice or judge, and all parties whose dispute the judge or justice has adjudicated. The commission shall give greater weight to the evaluations of parties whose disputes were adjudicated than to the evaluations of lawyers appearing before the judge or justice. The public shall be afforded a full and fair opportunity for participation in the evaluation process through public hearings, dissemination of evaluation reports to voters, and any other methods the Congress deems appropriate. The commission shall rank all judges and justices according to such performance reviews, ranking the bottom one-third of justices on the Supreme Court and the bottom one-third of judges within a particular Circuit or its equivalent, as below average, the middle one-third of justices or judges as average, and top one-third of justices or judges as above average. The commission may also issue a recommendation on whether to retain a justice or judge. The results of such evaluations, and a justice's or judge's ranking, shall be made public and included on the ballot next to the judge's name, whenever a judge is subject to voter approval. The records, methodology, and calculations of the judicial qualifications commission shall be made public, and the commission's hearings shall be held publicly, except that the identity of any attorney appearing before the judge, or any party whose dispute the judge adjudicated, shall be kept confidential, at the person's request.

Section 8. The commission having authority over a court shall conduct investigations of every person appointed pursuant to Article III of this Constitution as a judge or justice to that court, hold public hearings, and take public testimony about whether to recommend the person for judicial office. Final decisions as to recommendations shall be made without regard to political affiliation in an impartial and objective manner. Voting by the commission shall be in a public hearing. The commission's only consideration shall be candidates' judicial merit and legal skills . At the vote of Electors taking place after a justice or judge has been appointed pursuant to Article III, as described in section 1 of this article, the ballot shall list whether the commission recommended, or did not recommend, each candidate for judicial office.

Section 9. The only interpretive methodology that justices or judges shall apply when interpreting this Constitution, or any other statutory text, shall be the meaning of such text, as it was understood at the time it was adopted. After the adoption of this article, no bill, statute, or regulation shall have any legal effect unless Congress has adopted it, and it contains a section explaining the enumerated power granted to it under this Constitution which empowered Congress to enact it. All Members of Congress shall have the duty to independently evaluate the constitutionality of all proposed legislation, and vote against any legislation they believe to be unconstitutional. The President of the United States shall have the duty to independently evaluate the constitutionality of all proposed legislation, and veto any legislation he believes to be unconstitutional.

Section 10. The Congress shall have power to enforce this article by appropriate legislation.

The above is, of course, merely our proposal. The Article V convention would have the final authority on the exact text of the amendment it proposes.

This text is available under Creative Commons Attribution-Share Alike 3.0. This page uses material from the Wikipedia article “Missouri Plan.” Photo courtesy of justindc.