With all the media attention directed at Wyoming court appointments in recent days, we thought it would be helpful for Wyoming citizens to know how our court appointment process works and why we believe it is the most fair and effective way to pick the members of our judicial branch.
Opinion
In Wyoming, judges are chosen pursuant to Article V, Section 4 of the Wyoming Constitution. According to that provision, the Judicial Nominating Commission provides a list of three qualified applicants to the governor, who then chooses from those three names to fill the vacancy.
The Judicial Nominating Commission consists of six voting members and the Chief Justice of the Supreme Court who may vote in the case of a tie. The six members include three attorneys elected by members of the Wyoming State Bar and three lay members (non-lawyers) chosen by the governor to serve on the commission. All three of us were fortunate to have been elected by our peers to serve a four-year term on the commission. We all feel that service on the commission was a true highlight of our professional lives, working with a select group of lawyers and non-lawyers to agree on the three applicants who would make the governor’s choice as difficult as possible, without regard to partisan politics. Until he receives the list of three candidates nominated by the commission, the governor has no role in judicial selection.
The commission sorts through applicants based on their actual merit and fitness to be a judge. For example, the applicants are questioned about their professional competence, integrity, fairness, diligence and judicial temperament. The commission also considers the opinions of judges, other lawyers and members of the public who know them well when considering who are the most qualified candidates.
Ultimately, the beauty of our judicial selection process is that the State of Wyoming benefits from a very competent and professional judicial branch. Our judges are chosen based on their demonstrated ability to be successful.
In contrast, in more than half the states, judges are elected to serve. This type of selection process creates all sorts of problems. As United States Supreme Court Justice Sandra Day O’Connor warned many years ago, “In too many states, judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the Constitution.” It is not hard to understand why special interests would want to influence judicial elections — judges are required to make decisions that affect the rights and responsibilities of all. In Wyoming, special interests have no role in judicial selection, as it should be.
Current and former governors are often heard saying that judicial appointments were one of their favorite responsibilities because they knew they could not make a mistake. Without regard to their political affiliation, uniformly, governors have praised the Judicial Nominating Commission for making their decisions difficult because all of the candidates were qualified. Let’s keep it that way.
For our one party political state which is controlled by “fiscally conservative” Republicans, Wyoming has the highest percentage of government employees at 22% (see USA Today article below). That carries over to the judiciary where you see some of these small towns / counties with three and four “judges”. We also have 93 legislators. All these Republicans advocate for less government are total hypocrites.
I choose my words carefully as a Wyoming lawyer for north of two decades, but I respectfully disagree with the authors of this opinion. The judicial selection process is hyper-political and wholly subjective at both the nominating commission level and the governor’s office. It is completely secretive beyond revealing the names of three candidates submitted to the governor by the nominating commission. The entire process should be fleshed out transparently and publicly. Occasionally tidbits of information from the selection process are revealed from candidates who are interviewed, and it is eyebrow raising. I won’t attack specific judges, nor do I intend this to be an indictment of all judges. We have some very good judges. We also have had some that are not great. The system is designed such that the less than stellar judges enjoy de-facto life appointments along with the good ones. I have witnessed some disturbing instances related to this process which I won’t belabor now. Without opponents campaigning against them and judicial districts which in most instances span several counties, most voters do not even recognize the name of many judges they are asked to retain, let alone have an opportunity to effectively assess judicial performance. Wyoming citizens would benefit from going back to the election process for judges, because they would better understand the issues as opponents of seated judges would raise them forcing a debate. The fact that only three judges in over fifty years have been removed during retention votes since the constitution was amended in 1971 when the election process was eliminated is compelling evidence that the public is not able to effectively assess the merit of judges utilizing the current retention system. At a minimum objective tests should be administered to judicial candidates, and minimum qualifications established. The top scorer should be selected, absent an objectively disqualifying factor. Many states, in fact most I think have an election process to seat judges. They got it right, Wyoming got it wrong.
Keep politics out of courts? Dream on. They are as political as state and federal legislatures…only difference is that judges walk around with their noses stuck in the air, while legislators have the same appendage stuck up in a smellier place…
Thank you authors and WyoFile!
When you have two political parties fighting over the throne, justice no longer matters.