Louisville Magazine

MAR 2012

Louisville Magazine is Louisville's city magazine, covering Louisville people, lifestyles, politics, sports, restaurants, entertainment and homes. Includes a monthly calendar of events.

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powerful voices, including the American Bar Association and former U.S. Supreme Court Justice Sandra Day O'Connor, who joined an unsuccessful Nevada campaign to eliminate that state's nonpartisan- election system two years ago. Citing "the flood of money coming into our courtrooms," which she believes threatens judicial independence, O'Connor would instead support a form of merit selection — having a nonpartisan commission appoint judges for a set term; then have the judges stand in retention elections in which the public votes to keep or dismiss them. (Dan Goyette, chief public defender in Jefferson County and former chairman of the organization Citizens for Better Judges, says Justice O'Connor will be the opening speaker at the Kentucky Bar Association Convention this June in Louisville. Her keynote address will focus on judicial selection and the U.S. Supreme Court decisions that have led to "a perfect storm" developing in state judicial elections.) At the same time, several states that appoint some of their judges, including Tennessee, are considering a change to all elected benches. Under the state's current system, which was modeled after Missouri's, trial-court judges are chosen by direct election, while appellate judges are selected by the governor, acting on recommendations from a nominating committee. Retention elections are held every eight years. Te effort to end appointments is led by far-right advocates who believe Tennessee judges are out of touch with the public. It's interesting that, according to published reports, the Tennessee business community has joined with trial lawyers there in opposing the change. Noting that neighboring states Alabama and Mississippi have seen the cost of their judicial races increase dramatically, the opponents worry they would be asked to bankroll expensive races in Tennessee. Tennessee is not alone. In 2011, according to Justice at Stake, a Washington-based organization that tries to keep money out of judicial selection, seven of the 22 states with merit selections — most of which have a nonpartisan nominating commission provide the governor with a list of qualified candidates and he/she chooses one — looked into altering or dismantling their systems. Some of the efforts stalled, but legislatures in Florida and Arizona did pass constitutional amendments that require senate confirmation of a governor's judicial nominee, giving legislators more control. It's hard to see things changing in Kentucky anytime soon. Alterations to Kentucky's judicial system, which underwent significant reform by constitutional amendment in 1975-76, would also require a constitutional amendment. Tat's a major challenge — it would have to sway 60 percent of both legislative chambers and then a majority of voters. "Tere's a libertarian/populist strain in Kentucky that is suspicious of government," says Louisville attorney Jon Fleischaker. "Tere's a strong feeling of what I would call, 'Te state reports to me; I don't report to the state' — that the government has to account for itself." But there have been efforts to change the system in Kentucky. Te late Supreme Court Chief Justice Robert F. Stephens, the architect of the 1970s reforms, favored a "modified Missouri plan" in which judges on the Court of Appeals and Supreme Court, if not trial- level judges, would be nominated by a nonpartisan, blue-ribbon commission and appointed by the governor, then stand in retention elections periodically. Although Stephens' progressive efforts had significant support in the legal community, they never gained traction in the General Assembly. Martin Johnstone is the only person in Kentucky history to serve at all four levels of the state judiciary — district court, circuit court, the Court of Appeals and the Supreme Court, from which he retired 1996. He recalls the Stephens proposal and attending a forum at "We have 39 judges in Jefferson County, and the overwhelming majority of the electorate has no idea who they are," says Louisville attorney Tomas Clay (above). 3.12 LOUISVILLE MAGAZINE [63]

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