Many voters unsure when it comes to judicial retention

Fordham Law School in JournalStar.com, October 22, 2010

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If past elections are any indication, about 98 percent of those who vote in Lancaster County know who they want to govern the state. A similar percentage will have a horse in the U.S. House of Representatives race.

And a great deal of voters, as they continue down the ballot, will get to the Nebraska Workers' Compensation judges up for retention, and draw a blank rather than a circle.

They won't be alone. Lancaster County election results from cycle after cycle show that droves of voters shy away from voting for or against retaining any judge named on the ballot.

In 2008, 128,621 voters cast ballots in Lancaster County. The most votes cast for a judge were 91,927, for Court of Appeals Judge Richard D. Sievers.

The most votes cast for a judge in 2006 -- District Judge Karen Flowers -- totaled 71,238 out of 94,214 ballots.

And so on.

"That's pretty consistent nationwide, 20 to 30 percent, there's that roll-off," Nebraska Court of Appeals Judge John Irwin said.

In 2007, Irwin co-wrote a paper with Nebraska Court of Appeals attorney and fellow Creighton University Law School adjunct faculty member Daniel Real titled, "Enriching Judicial Independence: Seeking to Improve the Retention Vote Phase of an Appointive Selection System."

The paper, presented at a symposium at Fordham Law School where experts discussed how to best build an ideal system of selecting state judges, focused on Nebraska's selection method.

In other states, judge candidates campaign along with prospective city council members and congressional candidates. In Nebraska, prospective judges must be nominated to fill vacancies by a commission made up of lawyers, a state Supreme Court judge and others.

Following a public hearing, at least two finalists for a position are passed on to the governor, who makes the final call. The judges later come up for a yes or no retention vote.

Irwin said that while there is room for improvement in Nebraska's system, there is a lot to tout.

"Not only is it likely necessary to consider maintaining elective retention, but evidence suggests that elective retention can be effective in furthering the purposes and goals of retention systems generally," he and Real wrote.

The big goal, he said, is to get the public invested in the third branch of government.

"Very few people can tell you -- certainly they can't tell you who judges are most of the time," Irwin said.

So many voters refrain from saying yes to retaining a judge "because they don't feel they're in a position to make an intelligent vote," he said.

Election results from 2008 show that none of the five judges up for retention on the Lancaster County ballot got more than 75.08 percent of the vote or less than 73.5 percent.

While some people simply don't vote, Irwin said he's heard of people who vote yes for every judge, as well as people who vote no on every one.

One short-term solution, he said, is simply providing the public with more information about judges up for retention.

"The better the information, the better the choice and selection you can make," he said.

This year, there are several available resources.

The League of Women Voters puts out an annual voters guide.

Lincoln residents may have seen billboards for a website -- eyeonthebench.org -- that says it wants to provide voters with information about judges up for retention while not suggesting whether they should be retained.

The website quotes extensively from and links to Irwin's paper, as well as to news articles mentioning several judges. It also describes "controversial" decisions made by some judges.

Irwin is not affiliated with the website, and an e-mail sent to its webmaster was not returned.

Irwin and Real's paper cites efforts by the Nebraska Bar Association, which recently released its judicial retention survey of lawyers who've had professional contact with those on the ballot.

Attorneys were asked to rate on a scale of one to five the skills of judges they have practiced before in areas including legal analysis, impartiality, clarity of opinions and more.

The bottom line: Attorneys who practiced before each of the judges up for retention on the Lancaster County ballot recommended in an anonymous survey that all of them be retained.

Irwin said he also has a long-term solution in mind: Teach children at an early age the importance of the judicial branch of government, of having impartial judges at all levels of the court system.

"If a judge can perform his or her job -- that is, making a fair and impartial decision -- I would argue, that is what you want," Irwin said.

The more people understand the significance of that job, and the more they know about each judge's body of work, the greater a role they will take in the voting process.