California’s current system of selecting trial judges, as established by Article VI of the California Constitution, involves two primary methods: judicial elections and gubernatorial appointments. Both processes present significant challenges to ensuring judicial independence and public accountability. While retention elections follow both methods, their effectiveness is questionable due to the public’s lack of knowledge about the judges on the ballot or their appointments. However, having a mechanism for removing judges remains important, as the California Supreme Court acknowledged in People v. Hawkins (2019), suggesting that retention elections potentially undermine the constitutional intent of judicial oversight.
Historically, judicial elections were commonplace in California. Today, almost 90% of trial judges are now chosen through the gubernatorial appointment process, raising concerns about democratic participation in judicial selection. This trend mirrors a national shift that began with Missouri’s adoption of merit selection in 1940. California’s appointment process lacks many of the transparency safeguards that democratic institutions should expect to have in judicial selection provisions.
Sadly, most citizens learn about these judicial appointments only after the fact through local media, with little to no prior knowledge of the selection process and only after the judge has been selected. The California Supreme Court itself even acknowledged this issue in In re Judicial Selection Process (2018), recognizing the potential problems with public transparency.
The lack of public input in the selection process even has implications for judicial diversity. According to the California State Bar’s 2023 Report on the Judiciary, while the state’s population is approximately 40% Latino, only 11% of the state’s judges are Latino. Similar disparities exist for other demographic groups, calling into question whether the current selection methods adequately serve California’s diverse population.
Running for Judicial Office
Judicial elections involve two or more candidates competing for the position, with the majority vote winner taking office. These vacancies typically arise when a sitting trial judge announces their retirement at the end of their term, allowing qualified individuals to run for the position under Government Code §69500.
Although this process where judges run for office resembles other political campaigns, judicial candidates face unique challenges in these elections. For instance, raising money for judicial elections is a significant issue as contributors might seek influence or special treatment in current or future litigation. The U.S. Supreme Court’s landmark decision in Caperton v. A.T. Massey Coal Co. (556 U.S. 868 ((2009)) highlighted how campaign contributions can create actual or apparent biases that violate due process. Trial judges have substantial unilateral discretion in the cases before them, which can create the appearance of unfairness when a donor is involved. This differs from contributions to legislative branch members, where decisions made by the legislative process requires consensus and are thus subject to checks and balances.
One of the chief purposes of any election for any office is to ensure that those in office remain accountable to the public they serve. However, one of the biggest issues for judicial elections in California is that they are held at-large in each county instead of by district. Running for a seat at-large in populous counties like Los Angeles (10 million) or San Diego (3 million) is cost-prohibitive and discourages citizen involvement. A 2023 study by the California Judicial Council found that in large counties, over 60% of voters report having insufficient information to make informed choices in judicial elections. This issue is often overlooked, but it significantly impacts the accessibility and competitiveness of judicial elections.
Governor Appointments
The judicial appointment process in California is shrouded in secrecy. The Governor appoints members of the judiciary based on recommendations from the Judicial Nominees Evaluation (“JNE” or “Ginny”) Commission, established by the California Constitution (Article VI) and statute (Government Code §12011.05). This process involves the State Bar soliciting potential judges from lawyers in various communities, and the JNE Commission vets the candidates before recommending them to the Governor.
However, several problems arise from this process. The public is not involved in the selection or vetting process, and individuals who might have knowledge about a candidate’s character are excluded. The identities of the JNE Commission members are kept confidential, and any discoveries about a candidate’s background remain secret. This lack of transparency prevents the public from raising concerns about potentially disqualifying issues that the commission may have overlooked. Notably, similar commissions in states like Colorado and Arizona conduct much of their work in public, demonstrating that transparency and effectiveness can coexist. California should be no different.
California Government Code §12011.5(f) imposes strict confidentiality requirements, stating that all communications related to the selection process are “absolutely privileged from disclosure and confidential.” This level of secrecy stands in direct tension with Article I, Section 3(b) of the California Constitution, which establishes a presumptive right of public access to government information. The California Supreme Court’s decision in International Federation of Professional Engineers v. Superior Court (2007) emphasized that exceptions to public access should be narrowly construed, raising serious questions about the current appointment system’s extensive confidentiality provisions. The public is simply informed of the new judge’s identity without any opportunity for input or scrutiny. This process rightfully undermines public confidence in the judiciary.
The Problem of Judicial Privacy in California
In a democratic government, the public should have a say in choosing their leaders, who, in turn, write laws that are observed with public input. The courts are an integral part of this system, applying the laws passed by the legislative process. However, in California, the lack of transparency in the judicial selection and oversight processes undermines these democratic principles.
Californians have even passed a referendum amending the constitution to presume that government information is accessible to the public. Article I, Section 3(b) of the California Constitution states:
(1) The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.
(2) A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.
Despite this constitutional mandate, the Commission on Judicial Performance (CJP), established under California Constitution Article VI, Section 8 to handle complaints about judicial misconduct, operates in secrecy. The first-ever audit of the CJP, conducted by State Auditor Elaine Howell in 2016, revealed weaknesses in its oversight that “created opportunities for judicial misconduct to persist,” echoing concerns raised in Oberholzer v. Commission on Judicial Performance (1999) about balancing judicial independence with public accountability.
In an almost unbelievable move, the CJP sued to enjoin the first-ever audit by the legislature over the courts. The job of the legislature is in part to investigate other parts of government. It appears that the courts somehow didn’t believe that included them or they wanted to prevent greater knowledge of what they have engaged in. Either way, the public should not have confidence in this. An activist who pushed for the audit was handed a 25-day jail sentence by a judge with a history of misconduct complaints, raising concerns about retaliation. Such incidents undermine public confidence in judicial integrity and highlight the need for reform.
Technology could significantly enhance accountability, such as implementing a searchable online database of judicial performance metrics (as used in Colorado) or creating digital platforms for public input on judicial candidates (as was piloted in Arizona). However, the entire process as it stands is Orwellian, with only the chief executive having visible fingerprints on the process. This has led to nightmarish outcomes, with a judiciary largely left to its own devices and the public having few ways to protect themselves from it.
A Better Judicial Selection Process
To address these issues, California should implement two key reforms:
Single-Member Districts for Judicial Elections
First, the judicial election process should be reformed to incorporate single-member districts within counties, aligning with equal protection principles and making elections more accessible and competitive. This would require amending California Government Code §69500 to establish district-based elections, with boundaries drawn by the Citizens Redistricting Commission to ensure fairness. For example, in a county with 250,000 residents and 10 judges, creating districts of 25,000 people would make campaigns more manageable and ensure closer connections between judges and their communities. This would also substantially reduce the costs of elections.
Modified Federal Model for Gubernatorial Appointments
Second, California should adopt a modified federal model for appointments with the appointment of judges by the Governor with the advice and consent of the Senate. It should also incorporate key elements from other states’ selection systems that are in place. This would require:
- Public nomination periods with transparent application processes.
- Live-streamed candidate interviews by a diverse selection commission.
- Public comment periods on short-listed candidates.
- Senate confirmation hearings with public participation and open questioning.
This approach would allow the common citizen to alert their senators to potentially good judges or persons with disqualifying backgrounds. Senators from both major parties could investigate the candidates and ask questions during public hearings related to their qualifications. International experience, such as in Germany and Canada, demonstrates how transparent judicial selection can enhance public trust while maintaining judicial independence. The European Court of Human Rights has repeatedly emphasized that transparent judicial selection strengthens judicial authority.
Conclusion
The proposed reforms would strengthen judicial legitimacy while honoring both democratic principles and the need for judicial independence, core values repeatedly affirmed by the California Supreme Court in cases like People v. Superior Court (Romero) (1996). There are undoubtedly sitting judges across California who might not have gained their positions under a more transparent system. This reality underscores the urgency of reform, as the fairness and competence of judicial officers should be thoroughly vetted before they take the bench, not discovered by litigants in their courtrooms.
A more open and democratic selection process would enhance both the legitimacy of the judiciary and its responsiveness to the communities it serves. At this time, many people in the public distrust the judicial institutions, but a lawful judiciary is vital to our democratic system. These changes would help ensure that California’s judiciary better serves its diverse population while maintaining the highest standards of judicial integrity.
Reworked from a December 2024 article
