Thursday, April 2, 2009

Reviewing Merit Selection in R.I.


MERIT SELECTION of judges is broken in Rhode Island and Common Cause Rhode Island wants to fix it.

What is merit selection, and why should you care? Merit selection is a method for selecting judges that seeks to minimize the role of politics in the process.

It does this by placing the power to select judges in the hands of an expert nonpartisan Judicial Nominating Commission (JNC). The commission selects among those who apply for judicial vacancies and sends three to five qualified candidates to the governor to choose from. When the governor makes his or her choice, the Senate must provide “advice and consent” to the nomination. In the case of Supreme Court justices, the “advice and consent” role is extended to both chambers of the Assembly.

You should care about merit selection because it promotes accomplishment over connections. Before its institution in 1994, judges in Rhode Island were chosen exclusively by the General Assembly. After two chief justices of the Rhode Island Supreme Court resigned amid scandal, the voters of our state chose to change the system. By switching to a merit-selection process we became the 33rd, and most recent, state to chose merit as the basis for choosing judges.

Almost since the inception of merit selection, in 1994, the political establishment in Rhode Island has been trying to undermine it. Why? Politics thrives on patronage, and judgeships are the ultimate form of patronage. With lifetime tenures and 100-percent pensions, judgeships are obviously coveted positions.

To foil the merit-selection process some changes have been made. The first, and perhaps most egregious, is the expansion of the system of magistrates. When the merit-selection system was first created in Rhode Island there were only two magistrates in the state. Now there are 19. Each position comes with a 10-year term and a pension equaling 100 percent of a magistrate’s salary.

Why does it matter that there are more magistrates? It matters because magistrates are not subject to merit selection. They are court officials, judges in most respects, and yet they are placed outside the merit-selection system. Who is getting these positions? Well, for example, consider The Providence Journal’s Feb. 28 story when an aide to House Speaker William Murphy was appointed (“Rogers makes pick for magistrate”).

In the past several years aides to other legislative leaders were given positions. Common Cause supports H 5433, sponsored by Rep. Donna Walsh (D.-Charlestown), and S 607 sponsored by Sen. Michael Lenihan (D.-East Greenwich), to put magistrates under merit selection. No longer would individual judges with lifetime terms be able to pick magistrates, but rather they would be subject to the same public process that chooses judges.

The second problem with the merit-selection system is the constitution of the Judicial Nominating Commission. As a recent article in this paper (“6 on judgeship panel serving under expired terms,” Feb. 24) points out, a majority of the members of the JNC have overstayed their term, one by over seven years! Only by circulating membership does the JNC represent the ideal of merit selection.

Last year Common Cause supported a new law that prohibits members of the JNC from being reappointed. Unfortunately, the passage of that law did not solve the problem of a lack of turnover on the commission. Because of an inexplicable lack of initiative by the leadership of the General Assembly (which must submit candidates for certain seats on the JNC), and simply puzzling behavior by Governor Carcieri (who must submit candidates for other seats), the JNC continues to consist of the same membership. And this occurs when Rhode Island faces an unprecedented number of vacancies in the courts.

Common Cause is working on legislation that would force members of the JNC who have overstayed their terms off the panel. By creating vacancies we hope to force the hand of our state’s leaders to fulfill their obligation to make their appointments. The JNC is a public body and its membership should be renewed as intended at the time it was created.

The third, and final, problem with the merit-selection process in Rhode Island is that the list created by the JNC has been diluted. Instead of a single list of three to five names, in 2007 the governor asked for, and the Assembly assented to, the ability of the governor to pick names off old lists from up to five years in the past. This undermines the idea that the JNC will pick the current best candidates for a judicial opening. This “five year look-back” is set to expire June 30 (just as it was last June 30 before it was renewed) and Common Cause intends to oppose its renewal.

Access to a fair system of justice is a cornerstone of our democratic system of government. If our judicial system is to be fair, we must have a process for choosing those who administer justice that is fair, too. So Common Cause Rhode Island is working to fix our broken merit-selection process. We hope you will join us in this reform effort by contacting the governor and your representatives in the General Assembly to close the loopholes in the system.

John Marion is executive director of Common Cause Rhode Island.

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