Nebraska’s Merit Plan for Judicial Selection Has Worked Well

By 
Richard Shugrue
The Daily Record

It’s almost 60 years since Nebraska adopted the Merit Plan for Judicial Selection in 1962.

By and large, the system designed to take “hard politics” out of the choice and retention of judges at all levels has worked well. The state has had 10 governors since the constitutional amendment was adopted. Four chief justices have been chosen under the merit plan, two from each political party.

Some governors had a greater influence on the choice of judges: Ben Nelson, for example, since he chose the entire Court of Appeals when it was created in 1991, and Dave Heineman, because he succeeded to office after Mike Johanns joined the national administration as Agriculture Secretary, and then was elected to two full terms.

Very few judges have been recalled under the plan.  In the case of Justice David Lanphier in 1996, he was defeated in a retention vote by a nefarious act of political conduct which had nothing to do with his excellent character and outstanding public service.

Judge John Irwin, one of the original members of the Court of Appeals, and Daniel Real of Creighton, wrote a fine article on how the retention election system could be improved by greater educational efforts and the cooperation of the media, in the Journal of the American Judges Association in 2006. They noted that the typical voter knows little of the record of sitting judges.

It is also a fact that no one except a governor and a nominee has any idea what is discussed after the nominating commission has submitted names to the chief executive.  It could be last night’s ball game or the candidate’s views on capital punishment, but no record is made of that critical encounter.

Because a retention election is a key part of the process, one of the central evils of politics is inevitably involved: cash.

In the Lanphier retention election, $300,000 was spent and the main group opposing the judge refused to reveal the source of its money. In the case of a judge, how is he or she to raise a war chest without appearing to act unethically?

In the decades during which judges have been chosen under the Merit Plan, Nebraska has been blessed with many wise, hardworking jurists.  If I could chose just one to remind you of, I’d pick the late John T. Grant, a man from a small firm who was chosen by Gov. Jim Exon for the district bench.  Years later, he was picked by Gov. Bob Kerrey for the Supreme Court. He served on both courts for about 20 years.

He was a pleasure to watch presiding. In his words, he could be serious without being somber.  He was always respectful to the least of our brethren.  And he suggested that every judge should be required to take a sabbatical and work in a legal aid office, so as not to get a big head.

But the reader knows that the majority of men and women who go onto the bench are people of decency and common sense, just like Justice Grant was during all those years of service.

Richard Shugrue is a professor emeritus at the Creighton University School of Law and a columnist for The Daily Record.

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