Federal and state judicial selection in an interest group perspective.

• Author: Solimine, Michael E.
• Position: Symposium: Mulling Over the Missouri Plan: A Review of State Judicial Selection and Retention Systems

1. INTRODUCTION

   The literature on judicial selection systems has given considerable attention to the role that politicians and their parties--through their legislative roles--have played in the adoption and operation of these judicial selection systems. Less attention, however, has been given to both the effect that interest groups, broadly defined, have in the creation and implementation of judicial selection systems and the effect that these systems have on the strategies adopted by interest groups to accomplish their goals. This Article seeks to fill this gap. using the framework advanced by William M. Landes and Richard A. Posner in their seminal article on judicial independence, (1) we explore the relationships between interest groups and the functioning of judicial selection systems at both the federal and state levels.

   Like that of Landes and Posner, our analysis is primarily positive. That is, we explore, from a theoretical and empirical perspective, the role of interest groups in creating judicial selection systems and influencing those systems once created. Like them, our focal point is the seeming puzzle of why legislative bodies (and their supporters among interest groups) would establish an independent and possibly competing branch of government. unlike them, we extend the analysis to consider how interest groups affect judicial selection systems once they are created. We have relatively little to say about normative issues, that is, what the implications of this interest-group behavior are on sound judicial selection. There is a large amount of literature on that point. Though our analysis may inform that discussion, we will leave that task to others.

   This Article proceeds as follows. In Part II, we summarize the model advanced by Landes and Posner. In Part III, we explore some of the criticisms that have been levied against their model, while in Part IV we raise some criticisms of our own and explore how later scholarship has addressed them. Part V concludes the article.

2. LANDES AND POSNER: A BRIEF SUMMARY

   In their 1975 article, Landes and Posner propose a model for understanding judicial behavior in the context of interest-group politics. (2) Their model begins by observing that, from an interest-group perspective, legislation is the result of a bidding process among groups or coalitions. (3) That is, legislatures sell and interest groups buy legislation. Payment could take a variety of forms: campaign contributions, electorate support, promises, and sometimes even illegal behavior such as bribes. (4) The price that interest groups are willing to pay for a favorable piece of legislation depends on the value of the protection they seek to receive, as well as the ability of the particular interest group to reduce free-riding problems. (5)

   The value of legislation depends not only on the level of protection received but also on the expected durability of the legislative enactment. Because supporting the enactment of new legislation is expensive (for both the interest groups and the legislators themselves), the deal between legislators and interest groups will only be worth the effort if some assurances exist that the legislative deal will not be undone by future legislatures. (6) In this context, note Landes and Posner, the legislative deal needs to include not only the substantive protections sought by the interest group but also structures that limit the ability of future legislatures to change the law. It is in the interest of the enacting legislature to create such limits because they increase the value of legislation. Thus, legislators are in a position to extract higher payments from the various interest groups. (7)

   Therefore, the task for legislatures is to determine the type of structures and processes that can be used to constrain future legislatures. Landes and Posner identify various possible avenues. Legislatures, they point out, could adopt procedural rules making the enactment of legislation more "difficult and time-consuming." (8) Traditional and ubiquitous legislative constructs, such as "bicameralism [and] the committee system," are consistent with this perspective. (9)

   In addition to rules internal to the legislative process, legislatures can seek to create a judicial structure to reinforce the ability of the enacting legislature to limit future legislatures' ability to enact new laws and, in that way, ensure that these future legislatures do not undo prior legislation. A "subservient" judiciary, one where the "judges are perfect agents" of the current legislature, could nullify prior legislation by using its authority to interpret legislation in a way that is more consistent with the interest of the current, as opposed to the enacting, legislature. (10) On the other hand, a "non-subservient," independent judiciary might be more likely to interpret statutes with the goal of validating the intent of the enacting legislature. In that sense, Landes and Posner argue, an independent judiciary enables the legislative deal between legislators and interest groups, allows the legislature to extract a higher rent from those groups, and, consequently, "facilitates rather than ... limits the practice of interest-group politics." (11)

   Having identified the reasons why the legislature would prefer to deal with an independent judiciary that interprets legislation according to the intent of the enacting legislature, Landes and Posner note that it is in the interest of the judiciary to follow that interpretative approach. A highly valued judiciary (at least in terms of public perception) makes it harder for the other two branches to sanction the judiciary, as any attempt to punish the judiciary might be seen as a politically vindictive act. Because the value of the judiciary, to a large extent, depends on the predictability of its decisions, courts have an incentive to interpret legislation according to the intent of the enacting body, as opposed to the likely much more uncertain political preferences of subsequent legislatures. (12) Thus, Landes and Posner conclude that "the ability of courts to maintain their independence from the political branches may depend at least in part on their willingness to enforce the 'contracts' of earlier legislatures according to the original understanding of the 'contract.'" (13)

   Landes and Posner observe that granting life tenure to judges is an effective mechanism to achieve judicial independence. Clearly, by granting the judges life tenure, the legislature diminishes the ability of future legislatures to threaten judges for decisions with which the legislature might disagree. However, life tenure also reduces the impact that interest groups might have on the judiciary. Life tenure raises the costs and reduces the benefits of any type of deals that interest groups might seek to make with judges to incentivize them to decide in their favor. A judge will be less likely to acquiesce to interest groups' pressures of this kind (i.e., bribery) where the risk of losing her job is low. (14)

   Finally, Landes and Posner identify a variety of positive implications of their model. of particular interest to this Article are the implications of their model for state judicial selection systems. Landes and Posner note that the ability of a legislature to enact protective legislation corresponds to that legislature's jurisdiction. Because it is easier for those affected by a particular state law to move to a different state to avoid that law than for an individual or business to move to a different country to avoid a law enacted at the federal level, the ability of a state to enact laws favorable to a specific interest group is less than the ability of Congress to do so. Therefore, the narrower the jurisdiction of a legislature, the less likely that legislature will be to enact long-term legislative deals. Accordingly, interest groups will not be willing to pay as much for protective legislation at the state level as what they are willing to pay for protective legislation at the federal level. Thus, as compared to the U.S. Congress, state legislatures are less likely to adopt judicial selection and retention systems that maximize independence. This is an observation which, Landes and Posner note, conforms to reality. (15)

3. COMMENTARY ON THE LANDES AND POSNER MODEL

   As with other work of these two prolific scholars, Landes and Posner's independent judiciary paper has (16) produced a significant amount of both positive and negative commentary. Nobel Prize winner James M. Buchanan praised Landes and Posner's effort to develop a public choice model of the judicial branch. In particular, Buchanan praised Landes and Posner's "criticism of the romantic view that the members of the judiciary are the unique guardians of some mystical 'public interest,' something that is wholly ignored by the other branches of government." (17)

   Over the ensuing years, numerous scholars have explored the various components of the Landes and Posner model. For example, Mark Crain and Robert Tollison explore other mechanisms that legislatures can use to increase the value of the protection they sell to interest groups. (18) While Landes and Posner focus on judicial independence as a mechanism that helps legislators increase the value of legislation, they also point out that other mechanisms might achieve the same objective. In particular, Landes and Posner point out that a legislature could accomplish the same objective by providing protection to interest groups via constitutional right instead of through legislation. (19) Using data on constitutional amendments across states, Crain and Tollison find support for Landes and Posner's model. Regarding the issue of judicial independence, Crain and Tollison find that shorter judicial tenure, which they assume to be associated with less judicial independence, leads to higher reliance by legislatures on constitutional amendments "for generating...