This article originally provided by The Charleston Gazette

September 24, 2005

Bar votes for appointment of Supreme Court justices

By Tom Searls
Staff writer

A panel of lawyers narrowly voted to recommend merit appointment of state Supreme Court justices, but stopped short of promoting the same method for selecting circuit court judges.

The 8-7 vote of the West Virginia State Bar Judicial Selection Committee is indicative of a “deep philosophical divide” members of the State Bar hold on the issue, said lawyer John P. Bailey of Wheeling, who headed the panel.

“I think that’s a safe conclusion from that data,” he said.

Bailey, who favors merit selection of justices and circuit judges, was appointed to head the committee by former Bar president Charles M. Love III last year. Love pushed the issue to the forefront during his one-year term, getting the group’s 27-member board of governors to create the panel by one vote.

It would take a constitutional amendment to change from the direct election of justices, something that failed in a previous statewide vote. The committee said if lawmakers and voters aren’t ready to do that, then the Legislature should at least take steps to have candidates run as nonpartisan, or without any political party affiliation.

West Virginia is one of 10 states with partisan election of judges. State voters elect magistrates, Family Court judges, Circuit judges and the five members of the state Supreme Court, all with political party affiliation.

Bailey stressed the committee recommendation is not the position of the State Bar. “The decision on the position of the Bar is the board of governors’, not us,” he said.

Morgantown lawyer Debra Scudiere, president of the State Bar, said the committee report will be discussed at the Bar’s board of governors meeting Oct. 7-8. “I’m sure we’ll have a full discussion,” she said.

The issue, Bailey said, is accountability versus independence.

Appointing justices allows for more independence, he believes. “Independence says you don’t want judges making decisions in fear of what the voters want or don’t want,” he said.

The panel recommended that a committee be appointed to review records of those applying for the state’s highest court. That group would recommend the three they ranked highest to the governor, who would have to appoint only from the list.

Bailey pointed to the 2004 Supreme Court race when the “perception” of the two candidates was one on the extreme left politically and the other on the extreme right. “What we’re trying to get on the Supreme Court is someone in the middle,” he said.

Having a committee make recommendations could facilitate that, he believes.

“Both sides have to sit down and find someone who is maybe not their first choice but someone who will be fair to both sides,” he said.

But there is something to be said for accountability to voters, too, he said.

“Electing judges increases accountability because the voters can vote them out,” Bailey said.

One of the biggest problems Bailey has seen, though, is the public’s perception of judicial candidates raising money, and donors purchasing influence.

“This is not to say the judges who have been elected have been bought,” he emphasized, but he believes that “is the public perception out there.”

The increased visibility of judicial races and the high amount of spending in judicial campaigns doesn’t necessarily translate into state residents wanting them appointed, he said. “Are they ready to give [electing judges] up? I don’t know.”

An earlier State Bar survey of its members showed a majority of lawyers favored appointment of judges, but that majority wasn’t overwhelming. “There is a substantial split,” Bailey said.

“There are lots of different views on the whole question,” said Scudiere, who unlike Bailey and Love, her immediate predecessors as Bar president, has not taken a stance on the issue.

She looks forward to a lively debate at the next board meeting and some type of recommendation.

Bailey noted the panel made several recommendations in case appointment doesn’t pass. Most important of those, he believes, would be the nonpartisan election of justices and judges. Others include adopting North Carolina’s public financing of judicial campaigns and increasing voter awareness through education and pamphlets.

“The studies have shown a lot of voters ... are woefully uninformed when it comes to judicial races,” he said.

To contact staff writer Tom Searls, use e-mail or call 348-5192.