Plan Calls For Appointment Of Justices

Governor would select one from list approved

The Charleston Gazette, July 20, 2005

A State Bar committee has drafted a proposal under which state Supreme Court judges would be appointed by the governor instead of elected by voters. Under the draft proposal, a 13-member nominating committee of six lawyers, six lay people and a circuit judge would select three candidates, from which the governor would pick one Supreme Court justice.

Other lawyers would elect the six lawyers on the nominating committee, according to the proposal. The state Senate president and House of Delegates speaker would pick the six non-lawyers. All three congressional districts would be represented equally on the nominating committee. t least one committee member wants “retention elections” for judges, according to the proposal. In several states, voters can throw out appointed judges they don’t like. he committee hasn’t decided yet whether circuit and family judges should be appointed instead of elected.

This is just one of two competing proposals the state Bar’s Board of Directors will be considering in October, according to John Bailey, a Wheeling lawyer who is leading the committee. Another group is coming up with ways to keep the current system of electing judges, but reform it so no special interest group could hijack the process.

But some members think the committee is stacked so it will recommend the appointment of judges rather than election reform. In fact, such “merit selection” was the winner in a straw poll vote of committee members.

The talk of reform was spurred by last year’s state Supreme Court race. More than $2 million was spent on attack ads that “were among the most negative and vitriolic seen anywhere,” according to the Brennan Center for Justice at New York University . Even people who are glad at the outcome say they are disturbed at the public’s perception that a seat on the Supreme Court can be bought.

The state Trial Lawyers Association wants reform of the system, but is opposed to so-called “merit selection” of judges, said Harvey Peyton, the group’s president. “We believe in the juries, and we believe in the electorate,” Peyton said, “as long as the juries are not tampered with and as long as the electorate is told the truth.” The Trial Lawyers Association launched a pre-emptive attack on the appointment proposal Monday.  The group issued a position paper and a press release predicting the Bar Association would recommend appointment over election of judges.

Bailey said the decision is far from being made. It is likely two reports could emerge from the state Bar — one supported by a majority of members, and another by members who strongly oppose the idea. “It is possible there could be a minority report,” Bailey said. “My experience in dealing with attorneys over the years is that it is difficult to get unanimity in anything.”

The state Bar’s proposal would be presented to the state Legislature, which would have to approve any changes.

If the proposal were to move to the appointment of judges, the state’s voters would have to approve a constitutional amendment. The committee already has discussed possible wording for the amendment, as well as how to mount a public relations campaign to get it passed.

Bailey defended the appointment of judges Monday. He said West Virginia is one of only six states to hold partisan elections to select judges. Also, West Virginia already appoints the majority of its judges, Bailey said.  About 70 percent of judges were placed on the bench first by appointment, and were later re-elected.

Bailey said appointing judges would reduce the opportunity for big-money slugfests that are a growing trend in state Supreme Court races. “Merit selection takes a lot of the financial influence away. You don’t have the same level of spending and commercials,” he said.

Peyton said there are other ways to limit the influence of money in the campaign. The state can’t, and shouldn’t, stop someone like Massey Energy CEO Don Blankenship from spending millions on attack ads, he said.

But the state could require judicial candidates to disavow those negative attacks made on their behalf, he said.

Also, other states have required justices to recuse themselves from cases involving people who spent money on their behalf, he said.