Judicial Retention Elections under Nebraska’s Merit Selection System for Judges
What is a Judicial Retention Election?
In a retention election, voters decide whether a judge should be retained on the bench or removed from office.
A judge must run for retention in office in the first general election that occurs more than three (3) years after his or her appointment, and every six (6) years thereafter. When a judge runs for retention in office, the question presented on the voters’ ballots states: “Shall Judge ___________ be retained in office?” If there are more votes to retain a judge than to remove him or her, then the judge remains on the bench for an additional six (6) years.
Why Does Nebraska Have Judicial Retention Elections?
The Judicial Retention or Merit Selection System was adopted by Nebraska voters as a constitutional amendment in 1962. Originally, it applied only to the selection of judges to the Supreme Court and district courts. Since then, it has been extended to include all of Nebraska’s state judges.
Why Nebraskans Chose Merit Selection Over Election of Judges
Although no judicial selection system is completely free of politics, a process using merit selection and retention elections more often results in:
Judges who are highly qualified: Merit Selection judges are appointed by the governor, but the appointment is made after a politically balanced, nine-member commission reviews applicants, evaluates their qualifications, and holds public interviews. Comments from the public are encouraged and considered in the selection process. For each judicial vacancy, the commission selects at least three nominees whose names are sent to the governor for consideration and appointment.
Nebraska’s nominating commissions are regionally-based and represent a cross-section of the population. The governor appoints four nonlawyers, no more than two of whom may be from the same political party; and the Nebraska State Bar Association elects four attorneys, no more than two of whom may be from the same political party. The Chief Justice or a justice of the Supreme Court chairs each commission.
Commissions have lawyer and nonlawyer members to assure the participation of interested civic and community leaders from both the legal community and the community at large. Lawyer commission members have an obvious interest, apart from their status as citizens, in the selection of quality judges. Nonlawyer commission members serve an important role in the nomination process by representing the interests of the general public.
Fair and Impartial Courts: Merit Selection judges do not campaign for office so they are free from political influences for which supporters may expect to be re-paid in some manner. Judges are sworn to uphold the constitution and serve everyone in a fair and impartial manner.
Diversity: Every qualified judicial applicant has an equal opportunity to be selected through a Judicial Nominating Commission – unlike popular election which requires individuals to raise increasingly large sums of money from supporters with special interests or expectations. Merit Selection of judges makes it possible to create a judicial system reflective of the community without the costly burden of financing a campaign.
Accountability to the Public: Judges appointed by the Merit Selection process are placed on general election ballots every six (6) years for the public to determine if they should be retained in office, giving voters the final say about who serves as a judge in their area.
Merit Selection, as the name implies, allows lawyers to apply for judgeships based on the merit of their work. It emphasizes the selection of judges based upon their professional qualifications rather than political name recognition and is the most effective way to ensure that Nebraska has fair and impartial courts.
What Makes a Good Judge?
- Integrity: a judge should be of undisputed integrity.
- Legal Knowledge and Ability: a judge should possess a high degree of knowledge of established legal principles and procedures and have a high degree of ability to interpret and apply them to specific factual situations.
- Professional Experience: a judge should be a licensed, experienced lawyer.
- Judicial Temperament: a judge should possess a judicial temperament, which includes common sense, compassion, decisiveness, firmness, humility, open-mindedness, patience, tact, and understanding.
- Diligence: a judge should be diligent and punctual.
- Health: a judge should be in good physical and mental health.
- Financial Responsibility: a judge should be financially responsible.
- Public Service: a judge’s background should include participation in activities that indicate social consciousness and consideration for others. Experienced judges must be committed to public service and the administration of justice.
For a detailed description of the above listed criteria, please review the American Bar Association's Guidelines for Reviewing Qualifications of Candidates for State Judicial Office.
What Resources do Voters Have to Evaluate a Judge’s Professional Record?
Nebraska Judge’s Judicial Profile: Judges eligible to file for retention this year, as well as links to their biographical information, is available in this list.
Nebraska Bar Poll: Each election year the Nebraska State Bar Association asks lawyers to evaluate each judge on the ballot on a wide range of attributes. The evaluation results are available in early fall each election year.
What About a Judge’s Personal Views?
- Judges must be neutral and follow the rule of law. It is inappropriate for a judge to consider his or her personal views, political pressure, or public opinion when deciding cases.
- A judge has the First Amendment right to free speech, but if a judge publicly announces a position on an issue, the judge’s impartiality may be called into question. If this occurs, the judge may need to decline presiding over any case that involves that issue.
- Judicial ethics prohibit judges from commenting about cases pending in court. This ensures that litigants receive a fair trial.
What About an Unpopular Court Decision?
Voters should consider more than the outcome of one case when assessing a judge’s performance because:
- Over the course of a career, a judge will hear and rule over of thousands of cases. One case alone is not an accurate barometer of a judicial career.
- Judges must follow the law, and sometimes the law leads to unpopular results. If citizens disagree with a law, they should seek a change through the Nebraska Legislature.
- High-profile cases that catch the media’s attention often bear little resemblance to the cases that constitute the bulk of a judge’s work. Most court cases do not involve hot-button issues.
- Sometimes a higher court reverses the decision of a lower court. Reversal by a higher court does not in itself indicate the quality of a judge’s work. For instance, the higher court could be ruling on an issue for the first time or clarifying one of its earlier opinions that served as precedent for the lower court.
How are Courts Accountable?
Our system of government is carefully designed to foster fair and impartial courts while maintaining judicial accountability through a series of checks on judicial power.
- If a party believes a judge made an error in a case, the party may appeal to a higher court to review the judge’s ruling.
- If citizens disagree with a judge’s interpretation of a law, they may go to the Legislature to amend the law and change the law’s effect in the future.
- If citizens disagree with a court’s interpretation of the constitution, they have the ultimate power to amend the constitution to undo the court’s interpretation.
- If a person thinks a judge has behaved unethically, the person may ask the Judicial Qualifications Commission to investigate.
In these ways, courts are accountable to the laws, to the constitution, and to the people.