Judicial Nominating Commissioner's Manual

Judicial Nominating Commissioner's Manual

The characteristics of a good judge:

"to hear courteously, 
to answer wisely, 
to consider soberly, 
and to decide impartially."

Contents:

 

Judicial Nominating Commission Timeline

  • Deadline for Public Hearing:

    60 days from time the vacancy occurs.

  • Deadline for applications to be sent to Supreme Court chairperson:

    21 days prior to public hearing.

  • Applicants' names released to press:

    10 days prior to public hearing.

  • Deadline for sending selected names to Governor:

    90 days from the time that vacancy occurs.

This manual has been developed to assist Nebraska Judicial Nominating Commission members by providing common background information. Its goal is to enhance the efficiency of the nominating process by reviewing procedural questions, leaving commissioners more time for the important tasks of recruiting, selecting, and nominating qualified applicants.

The Responsibility of a Member of a Judicial Nominating Commission

As a member of a Judicial Nominating Commission, you have a serious responsibility to the citizens of your state to exert your best efforts in finding the most qualified individuals to accept nomination for judicial office.

Your duty involves not only consideration of the qualifications of individuals whose names are submitted to you during the hearing process, but also the active solicitation and encouragement of those who are eminently qualified to submit their names as nominees.

You should become familiar with the necessary qualities for judicial office and should conscientiously measure each nominee with reference to these qualities.

You should recognize that the character and caliber of the judiciary of this state will depend upon the effective performance by judicial nominating commissions of their duties and responsibilities.

This is a public duty which is an honor to perform. The only compensation for the time expended is the satisfaction which you will receive in knowing that you have faithfully and competently performed your duties in the interest of improving the caliber of judicial service in the state.

Finally, all communications between a member of a judicial nominating commission and any other member of the commission or any applicant for judicial office, with the exception of those at the public hearing, are confidential. Any breach of such confidence may jeopardize the operation of future nominating commissions.

Thank you for accepting your appointment to the Nebraska Judicial Nominating Commission.


Jeffrey J. Funke
Chief Justice
Nebraska Supreme Court

Merit Selection System

The office of judge is unique in our society. A judge is a public servant holding a high office of public trust and so should answer to the public. However, the obligation of a judge is to resolve disputes impartially and base decisions solely upon the facts of each case and the law. A judge, therefore, should be insulated from public pressure.

The federal government and the states balance the competing interests of judicial accountability and judicial independence in a variety of ways. A federal judge, for example, is almost completely insulated from public pressure by serving a life term. Judges of many states face elections which force them to act as politicians as well as jurists. Other states, including Nebraska, have decided to choose their judges through the merit selection system: using nominating commissions to screen, interview, and solicit judicial applicants. In Nebraska, merit selection was adopted by constitutional amendment in 1962. It originally applied to the selection of judges to the Supreme Court and district courts. Since then it has been extended to include all judges.

Composition of the Nebraska Judicial Nominating Commissions

Each commission is comprised of nine members. The Governor appoints four nonlawyers, no more than two of whom may be from the same political party, and members of the Nebraska bar residing in the respective judicial district elect four attorneys, no more than two of whom may be from the same political party. The Chief Justice or a justice of the Supreme Court chairs each commission. Alternate members are available for commission members who may need to resign.

Commissions have lawyer and nonlawyer members to assure the participation of interested civic and community leaders from both the legal community and the community at large. Lawyer commission members have an obvious interest, apart from their status as citizens, in the selection of quality judges. Nonlawyer commission members serve an important role in the nomination process by representing the interests of the general public.

All members of the commission, except the chairperson, are voting members. The commissioners are appointed to four-year terms and are limited to twelve consecutive years of service. Alternate member's terms of office are also for four years. Commissioners are not paid for their work, but they may receive reimbursement for any necessary expenses incurred in the performance of their duties.  Lawyer and nonlawyer members may serve on more than one Judicial Nominating Commission. 

Service on the Commission

For the particular commission that is considering a vacancy, pursuant to Neb. Const. art. V., § 21 and Neb. Rev. Stat. § 24-803(2), a member of the commission shall be deemed to have served on such commission if he or she was a member of the commission at the time of the publication of the notice required by Neb. Rev. Stat. § 24-810(1). The term “member” includes alternate lawyer members. This definition is especially important for attorney members of the commission who may be interested in applying for a particular judicial vacancy. A member must resign his or her service on the commission to apply for the judgeship at issue. 

Recusal and Resignation from the Commission

If a relationship between a commission member and applicant, or chairperson and an applicant falls into one of the following four categories, the commission member or chairperson shall recuse himself or herself from the commission:

(1) Any relationship to the applicant by blood or marriage by virtue of being the applicant’s spouse, child, or spouse of a child. The commission member shall not be related to the applicant under the third degree of relationship test. The third degree of relationship test is defined as being the applicant’s or the applicant’s spouse’s parent, grandparent, aunt, uncle, sibling, nephew, niece, or spouse of any of these relatives. Additionally, the commission member shall recuse himself or herself in situations where the applicant and commission member are sharing or have shared a residence during the past 5 years.

(2) Any arrangement involving the practice of law or an employment relationship including, but not limited to, partnership, professional corporation, or office sharing within the past 5 years.

(3) Any relationship in which the commission member and applicant are actively engaged in managing a common profitmaking business or venture.

(4) Any instance in which the member of the commission would cast his or her vote on a basis other than an applicant’s qualification for the office.

Any disqualified or excused unavailable member or alternate member shall be recused until the business of the active commission has concluded and then shall return as a member or alternate member for the remainder of his or her unexpired term. 

If a member resigns from the commission or leaves the commission for any reason, the alternate shall fill the vacancy for the remainder of the unexpired term. 

 A change in residency of a member outside the judicial district or area of the state served by the commission, or a change in party registration automatically terminates the tenure of any member of the judicial nominating commission. 

The Nominating Commission Process

Judicial Resources Commission

Prior to the work of any nominating commission for district,  county court, or separate juvenile court, a determination is made by the Nebraska Judicial Resources Commission. The resources commission does not have authority over the Supreme Court, Court of Appeals, or Workers' Compensation Court. 

When a determination of the existence of a vacancy or other change is made, the resources commission makes a recommendation to the Legislature. If the commission determines that no changes are necessary, then no action by the Legislature is necessary and the nominating commission may begin its work. If there are recommended changes, the Legislature will take action before a change becomes effective.

Arranging a Meeting of the Commission

When a judicial vacancy occurs or is designated in the judicial area served by your nominating commission, you will be contacted by the Supreme Court chairperson in order to arrange the soonest possible time that the commission can meet.

The statute requires that one meeting of the Judicial Nominating Commission be a public hearing at which interested citizens can present their views concerning applicants for the judicial vacancy. This proceeding is designed to permit the public to participate in the judicial nominating process by expressing views either in favor of or against any applicant.

This public hearing is important in that it provides you with the views of interested members of the public, but you should appreciate that the public hearing plays only a small part in the consideration that must be given by the members of the Judicial Nominating Commission to various applicants.

Notice of Public Hearing

When a hearing date has been set, a press release is sent to all Nebraska daily newspapers, to weekly newspapers within the pertinent judicial district, to the Governor's office, to the legislators from the district in which the vacancy exists, and to the appropriate court clerks. The press release is also posted to the Nebraska Judicial Branch website, and the Attorney Services Division sends the information to all licensed Nebraska attorneys. The press release will contain the date, time, and place of the hearing, the name of the judge last holding the position, the primary office location for the judicial district, instructions on how interested persons may apply for the vacancy, the deadline for receipt of applications, and a hyperlink to the listing of members of the Judicial Nominating Commission. 

Recruitment of Applicants

The law allows members of the commission to seek out and recruit qualified individuals to apply for judicial office even though such individuals may be reluctant to suggest themselves as possible applicants. This is a most important part of your function, and unless judicial nominating commission members recognize this responsibility, the system of selecting judges through the use of judicial nominating commissions will not operate to its greatest advantage. There have been many instances in the past in which individuals who made outstanding judges accepted the office only because some individual or group of individuals with sufficient interest in obtaining qualified applicants for judicial office contacted these lawyers and persuaded them to make the sacrifice which is sometimes necessary in accepting judicial office.

Application Forms

Judicial application packages are accessed through the Nebraska Supreme Court’s Attorney Services Division portal and are completed and submitted online by the deadline set by the chairperson and announced in the press release. The chairperson's office compiles all applications and sends copies to commission members as soon as possible before the public hearing.

Information Following the Application Deadline

After all applications are received, and at least ten days prior to the public hearing, the chairperson releases the list of applicants to the public.

At the direction of the chairperson, the State Court Administrator's office conducts an investigation of the applicants' references, credit history, and application information. As investigations are completed, the commission members will be provided with the summary reports from the investigator. You should review the statement of understanding and rules after the names of the applicants have been released in order to identify any conflict of interest you may have. If you have a conflict or think that you are unable to conduct yourself within the guidelines of the statement of understanding or rules, please call the chairperson immediately.

Educational Meeting Prior to the Public Hearing

Immediately prior to the public hearing, the chairperson may hold an educational session which includes a review of the statement of understanding, qualifications checklist, legal and ethical obligations of commissioners, and considerations in the release of applicant information.

Public Hearing

The public hearing is held within 60 days after the creation of the judicial vacancy. The purpose of the public hearing is to allow citizens' testimony pertaining to the applicants for the vacancy. Applicants may attend the public hearing and speak for themselves or have someone speak for them. Speaking time limits are at the discretion of the commission. Written information from outside parties may be submitted to the commission any time prior to the selection of nominees.

Interviews

If the commission deems it necessary or desirable, it may privately interview all or some of the applicants prior to or following the public hearing. Once the application period closes, any private interviews with persons who have submitted an application for a judicial vacancy shall be with the full commission present. If interviews are conducted, uniform questions and procedures should, in most instances, be used for all applicants.

Commission Meeting to Vote on and Submit Nominees

At a closed session held after the public hearing, the commission will, by rollcall vote, select those applicants whose names will be submitted to the Governor. The commission must have all eight voting members in attendance in order to vote on the applicants. If eight members out of the original commission or alternates are unable to assemble, the public hearing must be postponed until eight qualified commission members can be present. An applicant needs a minimum of five votes in order to have his or her name submitted to the Governor. The names are submitted to the Governor in alphabetical order. After the process is complete, the commissioners destroy all nonpublic records.

Ethical and Legal Obligations of the Commissioner

The commission meeting is an appropriate time and place to address any issues that may be of concern regarding commission ethics. It is far better to try to anticipate problems and avoid them rather than to try to solve them once they occur. A goal of commissioners should be to avoid not only impropriety itself, but also the appearance of impropriety. All commission members should feel free to call the chairperson at any time to ask questions.

Neb. Rev. Stat. 24-811 (Reissue 1989) states:

"It shall be unlawful and a breach of ethics for any judge, public officeholder, lawyer or any other person or organization to attempt to influence any judicial nominating commission in any manner and on any basis except by presenting facts and opinions relevant to the judicial qualifications of the proposed nominees to an individual member of the commission or to the commission acting as a body, at or prior to the time of the public hearing. Violation of this section shall be considered as contempt of the Supreme Court of the State of Nebraska and shall be punishable as for contempt or by appropriate discipline with respect to any member of the bar involved in any such unlawful or unethical conduct."

Unsolicited Information and Anonymous Communications

Unsolicited information is oral or written communication to the commission submitted outside of the public hearing. Individual commission members may receive unsolicited information or statements from outside parties supporting or opposing an applicant. These statements should be received and shared by the commission member with the full commission before or during the commission’s private session, considered, and, if appropriate, investigated. The response to the writer or caller should be neutral. Take care to avoid conveying the impression that the person's campaigning for or against an applicant is effective. Thank the individual for the information. Unsolicited information, may at the discretion of the chairperson, be shared in confidence with the applicant, but shall not be publicly disclosed by the applicant or the commission. 

Anonymous communications, whether oral or in writing, received by the commission or any member of the commission regarding qualifications of an applicant shall not be considered by the commission.

Confidentiality and Release of Information

All discussions and information received by the nominating commission (except the public hearing) are to be kept strictly confidential. Communications between the applicant and the commission during a private interview shall remain confidential, including after the active business of the commission has concluded. All confidential materials used by the commissioners during the Judicial Nominating Commission process should be turned in to the commission chairperson or destroyed immediately following the final vote.

Within 30 days after the list of nominees is presented to the Governor, the chairperson of the commission sends the following to the State Court Administrator:

  • names of all applicants for the judicial vacancy;
  • copies of all applications submitted by applicants; and,
  • the names of applicants nominated for the vacancy.

This information is kept at the State Court Administrator's office and is available to the public for a period of not less than 10 years.

Reimbursements of Commissioner Expenses

Commissioners are entitled to be reimbursed for all approved expenses incurred in the course of their duties as commissioners. Mileage records and expense receipts should be submitted to the chairperson of the commission at, or soon after, the final meeting of the commission. All expenses should be submitted on a state expense voucher available from the chairperson.

Evaluation Criteria

Qualifications of Judges

Applicants for positions on all levels of Nebraska courts must meet a number of requirements in order to be appointed to office. Each person must be a U.S. Citizen, at least 30 years of age, and have had a minimum of 5 years of law practice in the State of Nebraska, which may include prior service as a judge. In addition, the candidate must be currently admitted to practice before the Nebraska Supreme Court.

A Supreme Court justice applicant must have resided in the State of Nebraska at least three years next preceding his or her selection and is on the effective date of appointment, a resident and elector of the district he or she is to represent. Each appellate court judge is appointed from one of the Supreme Court judicial districts and must, at the time of consideration for appointment, be a resident of the State of Nebraska. A district court, county court, or separate juvenile court judge must be a resident of the district to be served on the effective date of his or her appointment and must remain a resident of that district during the period of service. Workers' Compensation Court judges are required to reside in Lancaster County unless permission to live elsewhere in Nebraska has been given by a majority vote of the compensation court.

Qualities of Judges

Evaluation criteria are essential if the commission is to have a standard by which to judge applicants. Without evaluation criteria, the nomination process becomes little more than a contest of personal favorites among the commissioners. Each commissioner should determine, prior to the screening or interviewing of applicants, how he or she personally wants to weigh the various criteria.

For a specific list of qualities and criteria, see the American Bar Association's Standards on State Judicial Selection.

Preparing to Question Applicants

Public hearings and interviews are more productive if the commissioners are well prepared. Prepare the questions beforehand. Some questions are asked of all applicants for all judgeships. Some questions might be asked for only a particular applicant or vacancy. A review of the applications likely will lead to questions designed for a particular applicant.

Applicants must be treated fairly, but commissioners are encouraged to conduct aggressive questioning of the potential judges. Judges face the stress of decisions affecting the lives and property of other people. The commissioners have a responsibility to assess the ability of the applicants to resolve close questions under stress.

Phrasing of questions is important. The commissioners may question the applicants concerning social and political issues, but the questions should be phrased to avoid opinion shopping or reducing the interview to a political interrogation. The questions should be phrased to elicit an applicant's knowledge and understanding of important issues. Commissioners also should not hesitate to inquire about an applicant's qualifications for a position on the bench.

Each commission is responsible for developing its own set of questions suitable to the particular court and applicant.

Using the Qualifications Checklist

The qualifications checklist is designed for use before, during, and after interviewing the candidates for a judicial vacancy. The guidelines attempt to identify the characteristics which predict successful judicial performance. The identified traits are not mutually exclusive and cannot be wholly separated from one another. The criteria given are not intended to constitute a definitive list; rather, the function of these guidelines is to present minimum qualities which a candidate must possess. Some of the criteria are mandated by Nebraska statute, while others have been developed through the American Bar Association.

Under each criterion there is a list of questions and references to the application and personal data sheet. You are not expected to ask all the questions under a criterion, or to ask them directly. Rather, you should be able to answer them on your own with the help of the interview. The references to the personal data sheet and the application for judicial vacancy are meant to be used in conjunction with the checklist to develop questions, help answer questions, and provide additional information.

Miscellaneous

This manual is designed to answer many of the questions commission members have regarding their service on, and the function of, the Nebraska Judicial Nominating Commission.