Careful what you wish for: tough questions, honest answers, and innovative approaches to appointive judicial selection.

• Author: Zeidman, Steven
• Position: Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges

Judicial selection is a perennially hot topic. (1) For as long as there have been judges, there have been controversies about the way they are selected. (2) The longstanding interest in judicial selection makes perfect sense given the central role the judiciary performs in the American system of government. Many are rightly and passionately concerned with the manner in which we choose those who will ultimately judge us and our actions. The debate, reduced to its essence, centers primarily upon whether judges should be elected or appointed. Typically, elections are preferred by those who focus on the importance of judicial accountability to the citizenry, while appointments are favored by those who elevate the goal of judicial independence. (3)

The judicial selection question is now hotter than ever. (4) In 2002, the United States Supreme Court waded into these treacherous waters and struck down a rule prohibiting judicial candidates from announcing their views on disputed legal or political issues, (5) and the fallout from that decision is still settling. (6) More recently, in Lopez Torres v. New York State Board of Elections, the United States Court of Appeals for the Second Circuit jumped feet-first into the judicial selection quagmire. (7) The opening sentence of the court's eighty-two page opinion makes clear that the court was knee-deep in the bog: "This case requires us to peer inside New York State's political clubhouses and determine whether party leaders have arrogated to themselves a choice that belongs to the people." (8) Ultimately, the court rejected the political leaders' appeal of the district judge's ruling that scrapped New York's antediluvian, party-controlled convention system in favor of political primaries.

Quite apart from the current appellate court interest in the subject matter, it is imperative that we focus on judicial selection for its own sake. We are not talking about the ratified federal courts--judicial selection in the federal arena is a fait accompli; all of those judges are appointed and there is no movement on the horizon to switch to an elective system. (9) We are instead talking about state court judges. The states employ a variety of systems to select their judges, (10) yet whichever system is utilized, it behooves us to do all that we can to ensure that we are selecting the best and the brightest. These, after all, are the judges who daily decide matters such as whether a child will be taken from her family, whether an accused will be held in jail, and whether a tenant will be evicted from her home.

This symposium invited the participants to move beyond the standard "election versus appointment" debate. (11) Instead, all were urged to "critically appraise" appointive selection--what exactly are the component parts of a gold standard appointive system? Designing a meritorious system is indeed challenging. In fact, while the devil is said to be in the details, in this context, it may be more apt to suggest that the devil is in the implementation.

This Essay, informed in significant part by personal experience, examines in greater detail some of the common features of appointive systems, and in the process raises issues, concerns, and questions. Every step of the way the goal remains the same--to devise an appointive system most likely to yield as outstanding a judiciary as possible.

It is accepted wisdom that the nominating commission is central to any appointive selection system. (12) But who are the people who will nominate potential judges for appointment by the executive or other appointing authority? How and by whom should the nominators themselves be appointed? Obviously, the nominating commission members wield a great deal of influence. Certainly, the commissioners must be independent. They should not be mere puppets or act at the beck and call of the executive or whoever appointed them to the commission. (13)

Similarly, it is now generally accepted that the commission must be diverse, both to ensure the commission's legitimacy by having its membership mirror the population it serves, and to ensure a vast depth and breadth of experience and wisdom among the commissioners. (14) It is not enough, however, to simply state that the commission must be "diverse." If we are to "critically appraise," we must ask hard questions. What is meant by a "diverse" commission? Is it limited to racial diversity? How about gender, sexual orientation, age, ethnicity, or any other so-called immutable characteristics? What about other variables? Should the commission be split along political party lines? How about representing different geographic regions (i.e., upstate and downstate, south side and north side, etc.)? Should it have an equal amount of lawyers and laypersons? Just how should someone's work history fit into the equation? (15)

Inextricably linked to the diversity of the nominating commission is the diversity of the commission's nominees. All of the questions above come to the fore with great force once again when considering who is nominated by the nominating commission. Indisputably, there is a crying need to diversify the judiciary. (16) The numbers are stark. It is not hyperbole to say that we have a country of white male judges wholly disproportionate to their percentage of the general population. (17) A sound appointive system must be designed to overcome that national travesty, and yet must also address the multitude of issues encompassed by the call for "diversity."

Perhaps even harder to address than the "who," is the "how"--what process the commission should use to bolster its efforts to find and attract the best and the brightest. (18) Two stalwart, standard features of any nominating commission process are the reference or background check, and the personal interview. As straightforward, common, and familiar as these devices seem, a critical appraisal reveals much more than meets the eye.

Most nominating commissions have some procedure whereby an applicant is fully vetted. Part of that procedure will no doubt include reference checks. Commission members or designated individuals contact the applicant's colleagues, adversaries, and judges familiar with her work to gather information about the applicant. What, though, is the underlying purpose of these efforts? What is the reference check supposed to achieve? Is it designed to ferret out that hopefully rare person who looks acceptable on paper but has left a trail of scorched earth in her path? Is it, reduced to its essence, aimed merely at skimming off the very worst--those who cannot even pass a routine reference check? Or, is it supposed to be more useful than that? Should it yield enough information so that the commission will be able to rank applicants? For example, if the references are asked a series of questions that require them to give the applicant a 1-10 ranking, then their answers could be used in a rough empirical way. This systemic, quasi-empirical model is hard to imagine. It is difficult to...