Beyond merit selection.

• Author: Bierman, Luke
• Position: Federal and state judges

The foundation for an independent federal judiciary is embodied in the U.S. Constitution. The Constitution vests the judicial power of the United States in the Supreme and inferior courts. (1) Federal judges are appointed by the executive subject to Senate confirmation. (2) They serve terms limited only by "good behavior" (3) and receive salaries that cannot be "diminished during their continuance in office." (4) Authority, selection, tenure and compensation are thus the bellwethers for assessing judicial independence.

State judiciaries are varied in terms of judicial authority, selection, tenure, and compensation. (5) These broad differences among the states influence the independence of a particular judicial system. Some judges are elected while others are appointed, and in both cases, there is much variation in how selections are made. (6) Judicial terms range from just a few years to life tenure. (7) Salaries approximate those of the federal judiciary in some states, but are much smaller in others. (8)

Of the factors comprising judicial independence, judicial selection receives the most attention. A number of organizations focus on studying judicial selection and offering suggestions for its improvement. (9) The popular press gives significant attention to state judicial selection issues. (10) Much scholarship focuses on issues affecting judicial selection. (11) Indeed, no topic considered by judicial process scholars receives as much attention as judicial selection. (12)

Much of this attention results from the ongoing debate regarding the appointment or election of judges. The controversy over appointment or election goes back to the early years of the Republic, and became more heated in the early twentieth century when merit selection was proposed as an alternative to straightforward executive appointment and popular election. Merit selection became the goal of reformers seeking to diminish the prevalence of popular elections for judges, while making appointment palatable to advocates of election. Missouri adopted merit selection in 1940. Soon thereafter, merit selection was used in thirty-four states and the District of Columbia for selecting at least some judges, especially appellate judges. (13)

Yet, in the last thirteen years, only one state, Rhode Island, has established merit selection, and only after a series of public scandals involving its high court. (14) Last November, Florida voters in every county rejected a referendum to implement merit selection for trial judges. (15) Legislatures in Texas, North Carolina, and elsewhere have considered merit selection for appellate judges, but have chosen not to implement it. (16) Pennsylvania, with Governor Tom Ridge's support, is making a serious effort to enact merit selection for appellate judges. The outcome, however, is far from certain. (17)

The lack of momentum for merit selection at the beginning of the twenty-first century seems ironic. The increasing presence of money in judicial elections, with concomitant concerns about justice for sale, would seem to pose an excellent opportunity for advocates of merit selection. Reform, however, remains elusive. What then remains for those who wish to improve judicial selection? Where does the merit selection constituency go if merit selection is not a viable alternative?

This Article will review some of the factors that have diminished merit selection's appeal. It will examine why merit selection has never been an entirely successful answer for reformers seeking to diminish partisanship in judicial selection. It will suggest addressing other aspects of the judicial office to promote judicial independence. It will conclude by suggesting an educational credential for becoming a judge. This credential would accomplish the objectives advanced by merit selection advocates. It would offer legitimacy to judicial aspirants and would provide independent, accountable, impartial, and well-trained judges regardless of the selection method used by any given state.

1. THE APPEAL OF MERIT SELECTION

   One of the colonists' indictments against King George was that "He has made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries." (18) The adoption of executive or legislative appointment of judges by the colonies in their state constitutions was a direct reaction to the concern raised in the Declaration of Independence. During the first years of the Republic, and with the advent of Jacksonian democracy in the middle 1800s, (19) fears over executive prerogative arose. Concerns about abuse of the appointment power and the resulting concentration of power in the executive produced a trend toward popular election of judges in the states. Many agreed with Andrew Jackson who argued that "judges should be made responsible to the party by periodical elections." (20) Mississippi adopted judicial elections in 1832 (21) and was followed by every state to enter the union after 1845. (22) Several other states also abandoned their appointive system in favor of election. (23)

   This preference for elections was designed to support judicial independence. (24) As popularly elected officials, judges, and thus their decisions, would be subject to greater public trust and confidence. In addition, judges surviving an election battle would have the savvy to decide cases in ways that other branches of government would find respectful and appropriate. Bad judges would be subject to removal at election time.

   As time went on, however, the weaknesses of judicial elections became apparent. During the Progressive Era, concerns arose that elected judges were too dependent on political parties for their office. Among the objections raised to judicial elections were low voter interest in judicial elections, excessive campaign fundraising, and unseemly campaign conduct. (25) Still, non-partisan elections were not an ideal solution. Without party affiliation as a cue, voters in non-partisan elections would have to rely on other cues such as name recognition, hardly better than party affiliation as an indicator of a judge's qualifications for office.

   The American Judicature Society, organized in 1913, adopted judicial selection reform as one of its founding objectives. (26) The Society offered a series of proposals for ensuring that experts, rather than voters, would be responsible for selecting judges. The Society's initial proposals called for the appointment of judges by an elected chief justice. (27) Over time, however, the Society's preference became merit selection. In the merit selection system, a bipartisan commission nominates judicial candidates for appointment by the governor. After nomination, the judges are subject to a retention election or some other means of confirmation by legislative or popular endorsement. Merit selection was endorsed by the American Bar Association in 1937, prompting several bar associations to investigate merit selection as a possibility in their own jurisdictions. (28)

   The advantages of merit selection are many. First and foremost, the objective of merit selection is to remove partisan politics from the selection of judges. (29) By eliminating the party influence inherent in an election, merit selection frees judges from any corrupting influence of partisanship. With merit selection, party bosses cannot use judgeships as rewards. The judiciary can render impartial decisions without any appearance of impropriety from corrupt bargains with parties. The result is enhanced public trust and confidence.

   Eliminating judicial elections in favor of merit selection would also remove a fiction from the judicial process--that judicial elections are democratic in nature and provide direct accountability to the electorate. (30) One powerful argument against merit selection is that it deprives the public of the right to vote for public officials. Judges already enjoy many powers generally perceived as undemocratic, including the power to declare public laws unconstitutional. (31) Dispensing with popular election arguably removes a powerful element of accountability. Yet, judicial elections are often not competitive because powerful party leaders line up judicial candidates and remove any real public say in the outcome. (32) Merit selection, in contrast, is a more honest selection system, with legitimate representatives of the public involved in the screening processes.

   With the elimination of elections, the need for campaign funding is also eliminated. Campaign funding for judges has created many problems. (33) The Model Code of Judicial Conduct includes a number of restrictions on campaign conduct by judges. (34) For example, judicial candidates are not supposed to announce positions on issues likely to come before them as judges. (35) Likewise, they are not supposed to solicit or accept campaign funds. Campaign fundraising should be done by campaign committees that operate under numerous restrictions. (36) These regulations are designed to insulate the judge from political pressures resulting from political involvement. In addition, these prohibitions are designed to limit perceptions of impropriety that result from campaign contributions. (37) Merit selection eliminates both the political pressure and the perceptions of impropriety.

   Implementation of a merit selection system also acknowledges the fact that judges generally attain the bench by appointment regardless of formal selection systems. Even in states that use judicial elections, many judges reach the bench through a system of initial appointment after an interim vacancy. (38) Under these circumstances, the electorate is not presented with a choice but rather a fait accompli accomplished without public input through a secretive appointment process. Merit selection would shed light on the selection process and add some public input through the nominating commission.

   Merit selection may also increase...