For a Better Bench

When Judge Charles Donworth ran for re-election to the Washington State Supreme Court in 1962, he offered the voters a solid record of 14 years as an associate justice. His opponent, an unknown Seattle lawyer, did not even campaign actively. He offered voters only his name--which happened, by coincidence, to be Robert Kennedy. Though Donworth won, the coincidence ran up a formidable vote for his rival. The campaign has gone into the record books as one more reminder that the politics of elections may well be unsuited to the selection of judges.

Missouri Plan. "The proper use of the elective process is to give the people a choice among well-known candidates publicly committed to well-known views or policies," explains Glenn R. Winters, executive director of the American Judicature Society and a vigorous advocate of better methods for selection of judges. "A candidate for governor can have a platform and make campaign promises. What can a judge promise? To administer justice fairly and impartially to all who come before him. He can promise neither more nor less." Yet the judge's name appears near the bottom of a ticket, and it is the top candidates who usually win or lose for the entire slate--for reasons that have little to do with judicial competence.

Such competence is the concern of the judicature society, and with the aid of the American Bar Association the group has been racking up some notable successes in its campaign against the election of judges. The Society urges that the governor or chief justice of a state (or mayor of a town) pick new judges from a list of names submitted by an impartial nominating committee of leading lawyers and laymen. The electorate gets its say only after the judge has served a while. And then he does not run against a rival, he merely asks the voters, periodically, to approve him and his record. If he is turned down by the electorate, the vacancy is filled by the same appointive plan.

Outlined 50 years ago by Jurist Henry Kales at the founding of the American Judicature Society, the appointive-elective system has been getting more action in the past several years than in its first several decades. Its earliest large-scale trial was in Missouri in the 1940s, when the state's bar association corralled every willing organization from unions to the League of Women Voters into an intensive campaign that forced adoption of the plan against the adamant opposition of patronage-hungry state legislators.

Pennsylvania Solution. Ever since, the society's strategy has been to educate local lawyers and judges about the need for reforms, and to ally with them and other groups in an appeal to voters, over the heads of the politicians. Some or all judges in ten or more states are now appointed by a form of the Missouri Plan. This week Dade County (Miami), Florida, puts the Missouri Plan into effect in its metropolitan court system.

With five judgeships to fill, Pennsylvania's Governor William Scranton in an unusual, administrative action has borrowed a leaf from the Missouri Plan by appointing a seven-man (three lawyers, three laymen, one judge) Judicial Nominating Commission to recommend candidates (all vacancies are in Philadelphia). The judges Scranton finally chooses will face the voters when their terms run out, but they can expect the bipartisan support now given to most Philadelphia judges. By specifying that the nominating commission is to list three names for each vacancy, Scranton should avoid the unhappy quandary of New York's Mayor Wagner, who set up a similar committee two years ago, but is now quarreling bitterly with his own group because it will not give him what he considers a long enough list of candidates. As a result, despite New York City's crowded courts, 13 judgeships are yet to be filled--and some positions on the bench have been vacant for more than a year.

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