Elect or appoint?

Bob Rose became a lower court judge by being appointed to it, then became a state supreme court justice by running for it. He prefers the first way.

After serving as Washoe County district attorney and lieutenant governor, Rose was appointed a state district judge by Gov. Richard Bryan on Nov. 6, 1986. The next year, he ran for the Nevada Supreme court and, after a bitter campaign with another former lieutenant governor, Myron Leavitt, Rose won by a wide margin.

Today, Rose is supporting Ballot Question 1, which would install a modified Missouri Plan in Nevada, in which judges are appointed by the governor from a list compiled by the already existing Nevada Judicial Selection Commission, which up to now has been used only to fill vacancies caused by death or resignation. The measure would create a Commission on Judicial Performance that would evaluate judges and issue a “report card” before the election.

The only role the public would have in the new process would be deciding whether an appointed judge gets to continue in office. They would not have a competing candidate to choose from and if they voted to turn a judge out of office, they have no role in choosing the replacement. A supermajority of 55 percent would be required to retain a judge in office.

In 1988, the year Rose was elected, Nevada voters defeated a similar measure on a 56 to 44 percent vote.

After the Reno Gazette-Journal published an editorial calling the selection commission “elitist,” Rose responded with an essay of his own:

“[Selection Commission members] are usually community leaders who are willing to perform this major public service for little compensation. Members receive more information about the candidates than voters do (health, financial and bar association records) and spend days reviewing the information in the selection process. Calling these members ‘elitists’ is both false and unfair to people who have spent a lot of time doing a thankless job. [The] editorial assumes that the merit selection process is dripping with politics, but I have not found that to be the case. The commission works hard to select the three best qualified candidates, and the governors have in good faith tried to pick the best. And even if a governor wants to ‘play politics,’ the choice is restricted to three qualified candidates.”

Some attorneys say the process is a charade, that governors can work—and have worked—their will in the commission. “If a governor wants a name on the list, it always gets there,” is the way one attorney put it. “I know of a case like that when [Mike] O’Callaghan was governor.”

The Selection Commission has a lawyer majority, with the Nevada chief justice and three attorneys in its membership compared to three non-attorneys. (In the case of district court vacancies, one attorney and one non-attorney from the affected district is added.)

The ballot measure was sponsored by Washoe County Sen. William Raggio, who was not available for comment, but in Senate debate, he said, “This plan will enable a judge to devote his or her entire time to the business of the court since the judge will not take part in the usual political campaigns. The plan ensures that full consideration will be given to the ability, character and qualifications of a judicial candidate before that person’s name is permitted to go on the ballot and will cause the attention of the voters to be focused on a judge’s record making it easier to remove incompetent judges from office and to retain judges whose records were meritorious.”

But Washoe Assemblymember Bernie Anderson, who chairs the judiciary committee, said that for him it came down to whether to trust the public or not.

“I don’t trust anything that takes away the right of voters,” he said.

He doesn’t believe the change would remove money from the system, it will just become a subtler moneyed system.

“If anything, I think what it will do, it will ensure that only those who played within the system, who play well with the state bar, are going to be the ones who make it. It’ll just be, ‘It’s your turn.’ ”

He said he is convinced that attorneys who practice certain types of law—civil rights lawyers, for instance—that do not involve the kind of money-making that, say, corporate law provides, would find themselves shut out of judgeships.

Anderson proposed a compromise in which a lawyer’s initial selection for a judgeship be a full competitive election and subsequent elections be retention elections, but Missouri Plan supporters did not go along.

Many judges who decide not to run for another term resign rather than serving out their terms, letting governors appoint replacements. In the last 50 years, eight supreme court justices and at least 68 state district judges have been appointed.

Over the years, voters have seen their choices on the ballot steadily reduced. At mid-20th century, voters elected 15 statewide state officials elected, including posts like state superintendent of schools and surveyor general. Today, they elect seven.

Political liberals have often supported these changes, but in the case of judges, the issue does not always cut that way, in part because of a belief that some voices—particularly those of women—will rarely be heard if filtered through the Selection Commission process.

“Women would have been a lot, lot longer getting on the [Nevada Supreme] Court if it hadn’t been for elections,” said one state legislator.

No woman has ever been appointed to the Nevada Supreme Court. Five have been elected to it.

One prominent attorney, noting that former U.S. Supreme Court justice Sandra Day O’Connor has intervened in the Nevada campaign, said of her, “Reagan appointed her, but if she’d been a Nevadan there’s no way she would have gotten appointed to the Nevada Supreme Court.”

In fact, just a year after O’Connor was appointed the first woman on the U.S. Supreme Court, Nevada Governor Robert List passed up the chance to appoint the first woman to the Nevada Supreme Court. The Judicial Selection Commission sent him three names for a vacancy on the court that resulted from a resignation. One of the names was that of Las Vegas attorney Annette Quintana. Although List had previously said publicly that he hoped to appoint a women to the post, he instead chose Thomas Steffan—who became a polarizing figure on the court, its divisions the subject of state and federal probes.

Question 1 is intended in part to free judges from the corrupting influence of having to raise money, often from lawyers and law firms who have a big stake is who is elected and who may later come before their courts. When the ballot measure was being processed by the Nevada Legislature, however, Widener University law professor Michael Dimino testified that is not always the effect. Interest groups “spend a great deal of money on the nomination and confirmation process,” he said. Judges must raise money for retention campaigns instead of competitive campaigns in which they face another candidate—and in the retention campaigns envisioned by Question 1, they would have to surmount a higher vote threshold. That makes it unlikely they would be able to devote themselves entirely to the courtroom.

Plenty of money has been involved in Missouri Plan states, because judges must still campaign for retention. In a rancorous 1986 California campaign, state Chief Justice Rose Bird was targeted by conservatives for defeat when voters had to decide whether to retain her in office. She had to raise money in seven figures, and she was outspent almost two-to-one. One study showed that $3 of every $5 she raised came from lawyers.

In addition, Question 1 does not address the issue of the judges’ own campaign contributions. In 2008, for instance, Reno blogger Tracy Viselli reported charges that Nevada District Judge Jerry Polaha, who had ruled in favor of a Republican legislative candidate when his residency was challenged, had contributed money to various GOP candidates and committees. Bob Rose contributed $500 to John Kerry’s presidential campaign while he was on the state supreme court.

Question 1 also seeks to insulate judges from public passions and political pressures so they can make decisions based on the law, even when unpopular. Dimino testified that he believes the six-year terms already serve that purpose.

There appears to be no organized opposition to Question 1, and the supporters are well organized and well financed. They are hoping to exploit the bad taste left in the mouths of voters two years ago when Elizabeth Halverson was removed as a state district judge in Clark County after charges that she had improper contacts with jury members, fell asleep in the courtroom, and made inappropriate demands on her staff.