Merit Selection of Judges (& Magistrates?)

Rhode Island has a merit selection system for the appointment of judges that was enacted in 1994 where the Judicial Nominating Commission (JNC) evaluates and recommends three to five of the best qualified applicants from which the Governor makes an appointment subject to the advice and consent of the Senate. The intent of this reformed judicial selection process was to minimize political manipulation while strictly limiting the General Assembly to an “advice and consent” role. Since 1994 CCRI has successfully advocated for comprehensive measures to improve Merit Selection such as eliminating the 5-year look back on prior lists of nominees submitted to the Governor and ending de-facto reappointments to JNC.

However, more needs to be done. The Judicial Reform Task Force of Common Cause RI continues to advocate further comprehensive measures, including legislation, both existing and new, to improve the judicial merit selection system, the quality of our judges and magistrates, and minimize political influence in the selection process. Goals yet to be achieved are removing, or at least, minimizing, the legislature from the appointment process to the JNC for a more independent JNC, eliminating appointment of lobbyists to the JNC, ending overdue appointments to JNC, restoring the powers of the governor for budgeting and contracting for the judiciary, and requiring the appointment of magistrates to be selected under the judicial merit selection process.

Magistrates are created by legislation and serve in the Superior, Family, District and Traffic Tribunal courts.

The magistrates hold positions that otherwise would be filled by judges. As of 2015 (Source: FY 2015 Governor’s State Budget, Personnel Supplement, Vol. IV - Public Safety), the number of judges in the courts remained unchanged at 49 since Merit Selection was made law while there are 22 magistrates. The functions of the 22 magistrates most likely could have been filled by a smaller number of judges who would be selected under the judicial merit selection system. Magistrates perform all the duties of a judge except for trials and are compensated almost as much as a judge, including generous pensions. Magistrates are selected by the Chief Judge of the court with advice and consent of the Senate. This not only eliminates the filter of the JNC but also the governor.

One of the most grievous attacks on the judicial merit selection system has been the appointment of magistrates which has exposed its politicizing again with the recent appointment of mostly political insiders. Magistrates often are former members or come from the staff of the General Assembly suggesting that those without political connections stand less of a chance to appointments. History has also shown and continues to show that magistrate appointments are stepping stones to appointments to full judicial appointments thereby undermining the merit selection system.

Beyond the obvious political connection the selection of magistrates there are concerns with transparency, fairness and diversity. The concept of merit selection through the JNC process is more transparent than the magistrate selection process. Unlike the selection of judges where public testimony is part of the JNC process the selection of prospective magistrates does not allow public testimony. Additionally, the ranks of magistrates are not very diverse. Although the ranks of judges are not much better, the JNC has an explicit statutory mandate to consider diversity, while the creation of a pipeline from magistrate to judge contravenes that mandate.

Francis DiGregorio, Chair

Judicial Reform Task Force

Common Cause RI