A comparison of the criminal appellate decisions of appointed state supreme courts: insights, questions, and implications for judicial independence.

• Author: McLeod, Aman L.
• Position: Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges

Of all the systems used to select judges in the United States, appointment systems are the most widely used. (1) An appointment system is one in which the state's governor, with or without the input of a nominating commission, chooses candidates to fill initial and interim vacancies on a court. (2) Today, a majority of the states use appointment systems to select their supreme court judges. (3) There are many important differences in the institutional arrangements and procedures that these appointment systems use, however, and no research has been done to see if these differences affect the outcome of cases.

This Article presents the results of a study conducted to see whether state supreme courts selected in states with dissimilar appointment systems differ in the way they decide criminal appeals. Comparing the criminal decisions of courts selected with different appointment systems may also suggest something about how different appointment systems impact judicial independence.

1. APPOINTMENT: THE FALL AND RISE OF A JUDICIAL SELECTION SYSTEM

   As of 1846, appointment was second the most common way of selecting justices of the states' highest courts. (4) Of the twenty-nine states that entered the union prior to that date, fourteen used appointment systems to select supreme court justices. (5) Over the course of the nineteenth century, however, the proportion of states that used appointment systems for their highest courts dropped sharply as many new states entered the union with different selection systems (typically partisan elections) and as states already in the union switched to different selection methods. (6) The change away from appointment toward partisan election of justices was, among other things, prompted by the belief that elected judges would exercise their duties more independently than judges who owed their appointments to the governor or to the legislature. (7) The change was also spurred by the belief that elections would prevent the judiciary from being filled with judges who owed their appointments to political connections rather than to personal qualifications. (8) Defenders of judicial selection systems that combined appointment and life tenure retorted that elections would undermine judicial independence by subjecting judges to the will of the people and to manipulation by political party leaders; but these arguments did not prevent the adoption of judicial elections in most states during the period. (9)

   By 1909, thirty-five of the forty-six states in the union used partisan elections to select supreme court justices. Partisan elections, which some viewed as a means of assuring judicial independence from the other branches of government, came under renewed criticism for being detrimental to judicial independence. Critics claimed that elected judges were indebted to the political parties upon whom the judges depended for electoral support and that party leaders could use their patronage powers to influence the judiciary. (10) Critics also pointed out that elected judges frequently heard cases involving attorneys and litigants who had contributed to their campaigns, which further undermined public confidence in the courts' independence. (11)

   Interest in appointment as a judicial selection method enjoyed a revival during the 1910s in response to the previously-mentioned problems. (12) Prominent proponents of a return to appointment during this period included Roscoe Pound, John Wigmore, and Albert Kales. (13) Furthermore, the effort to encourage judicial selection reform provided one of the driving forces behind the creation of the American Judicature Society in 1913. (14) In 1914, Kales proposed an appointment plan eventually known as merit selection, which many reformers of the era supported. (15) Kales's idea sparked the revival of interest in appointment as a judicial selection system. Although various states considered several versions of Kales's proposal throughout the 1930s, Missouri was the first state to adopt a merit selection plan in 1940. (16) Currently, twenty-three states and the District of Columbia use merit selection commissions to select the judges of their highest courts. (17)

   As a system for choosing judges, merit selection attempts to accomplish three important goals: 1) enhance the professionalism of the judiciary, 2) enhance the independence of the judiciary, and 3) minimize the influence of partisan politics on the judicial selection process. (18) Under a merit selection plan, candidates for a vacancy on the bench are vetted by a commission (19) composed of lawyers, non-lawyers, and sometimes sitting judges. (20) After considering all of the applicants, the commission sends a list of the candidates that it deems most highly qualified (generally two to seven) (21) to the governor, from which the governor selects one candidate to fill a vacancy. (22) For proponents of merit selection, the use of commissions to vet candidates for judicial vacancies provides the primary advantage over other judicial selection systems because the focus of the candidate search remains on the professional and personal qualifications of the candidates, while minimizing political considerations in the selection process. (23)

   Merit selection plans are frequently combined with retention elections as a means of re-selecting judges after their initial terms of appointment expire. Although forcing judges to run in any type of election introduces the possibility that they will be subject to influence by campaign contributors, (24) retention elections coupled with merit selection ensures that judges remain accountable to the people they serve. (25) In a retention election, the incumbent judge does not run against an opponent. (26) Instead, voters decide whether the judge should serve another term or be removed from office. (27) Despite the fact that judges do not face opponents on the ballot in retention elections, these elections can turn into expensive and bitter contests when special interest groups mount campaigns for a judge's removal. (28)

   Between 1940 and 1989, twenty states (29) adopted appointment systems for selecting their supreme court justices, with fourteen of them switching from partisan or non-partisan elections to an appointment system using a merit selection commission and retention elections. (30) The fact that so many states changed from elections to appointment reflects the success of proponents of merit selection in making their case that merit selection, and appointment systems more generally, result in a more professional and independent judiciary.

   Still, substantial variation remains in how appointment systems work in different states for filling supreme court vacancies. For example, California, Maine, New Hampshire, and New Jersey allow the governor to make both initial and interim appointments to their supreme courts without the use of a commission. (31) Furthermore, among the states that use commissions, (32) tremendous variation exists in the way that the commission members are chosen and how they do their work. For example, in some states the governor appoints all of the commission members, whereas in other states the state bar, the state legislature, or the judiciary plays a role in choosing the members. (33) States that use a commission to vet applicants for judicial vacancies use procedures that vary over whether the governor must choose a candidate from the list presented by the commission, (34) whether the legislature confirms the selected candidate, (35) and in the procedures used and factors considered by the commissions when reviewing the candidates. (36) States that use appointment to initially select their high court judges also vary as to whether the justices face reselection. (37) When justices face reselection, states also differ on the reselection process (38) and how long judges' terms of office last. (39) For example, most states that use merit selection commissions to select the judges of their high courts subject them to retention elections. (40) Some states, like Massachusetts (41) and Rhode Island, however, do not subject their high court judges to any form of reselection once appointed and confirmed. Other states, like Hawaii, require supreme court judges to go through the commission process again when their ten-year terms of office expire. (42)

2. THE POLITICAL SALIENCE OF CRIMINAL DECISIONS IN THE CURRENT STUDY

   Although some researchers investigated the ways in which different selection systems affect how judges decide cases, most of this research has dealt with the differences between appointed judges and elected judges. (43) As stated earlier, there has been no research into how courts selected with dissimilar appointment systems differ in their decisional behavior. For example, no studies compare the rulings of a court appointed without a commission with the rulings of a court appointed with the help of a commission. Nor has research been conducted to see whether the manner in which judicial appointment systems function impacts how courts decide cases.

   Research into the effects of different appointment systems on court decisions is crucial to understand how the various types of appointment systems accomplish one of their primary goals: the promotion of judicial independence. (44) The term judicial independence refers to the ability of judges to render decisions free from political or popular influence. (45) Of course, no indisputable method exists to scientifically measure a court's independence or the influence by other branches of government and public or private pressure on a court's decisions. One measurable manifestation of a court's independence might be its propensity to make decisions contrary to the political interests of the judges who comprise it. If a court's judges are not concerned with the opinions of those who could remove them from office, the hallmark of an independent court, arguably that court should be more...