Designing an appointive system: the key issues.

• Author: Tarr, G. Alan
• Position: Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges

A leading scholar of state judicial elections has estimated that more than eighty-seven percent of state judges go before the voters at some point in their careers. (1) This figure, endlessly repeated in the literature, has fostered a perception of the ubiquity of judicial elections. (2) Yet one might as readily argue that it is appointment, not election, that dominates judicial selection in the states. Twenty-one states initially appoint the judges of their general jurisdiction courts, while another four states appoint at least some of their trial judges. (3) Twenty-two of the states that have intermediate appellate courts appoint their members, and thirty states appoint the justices of their supreme courts. (4) Moreover, even in states where selection is nominally by election, judges are often appointed to the bench to fill unexpired terms. (5) For example, in a study of accession to state supreme courts from 1964-2004, Lisa Holmes and Jolly Emrey found that more than half the justices (fifty-two percent) in states that elect judges were initially appointed to their positions. (6) This is significant because once appointed, these justices often face minimal or no electoral challenges to remaining in office, (7) thus transforming a nominally elective process into an essentially appointive one. In a study of state supreme court elections from 1980-1994, Melinda Gann Hall discovered that barely half of incumbents (52.1 percent) faced a challenger, regardless of whether they were initially elected to the court or appointed mid-term; furthermore, in only 15.5 percent of the races did they fail to garner more than fifty-five percent of the vote. (8) Appointed incumbents on lower courts are even less likely to face serious opposition. (9) The obvious conclusion is that, although judicial elections may seem ubiquitous, the vast majority of state judges never participate in a competitive election.

In states that combine appointment with retention elections, initial appointment is likewise the determinative decision. Despite some heralded cases in which interest groups targeted and defeated supreme court justices, incumbent judges are rarely unseated in retention elections. (10) In the most comprehensive study of judicial retention elections, involving ten states from 1964-1998, Larry Aspin found that only fifty-two of 4,588 judges (1.1 percent) were defeated when they sought retention. (11) Close elections were likewise rare: the same study noted that the average affirmative vote in retention elections never dipped lower than 69.4 percent during that period. (12)

The frequency of appointment as a means of reaching the bench, combined with the unlikelihood that incumbent judges will be defeated, underscores the importance of establishing a good system of judicial appointment. Judicial reformers have been at the task since 1906, when Roscoe Pound called for the replacement of judicial elections in his famous address on "The Causes of Popular Dissatisfaction with the Administration of Justice." (13) In 1914 Albert Kales, a co-founder of the American Judicature Society, proposed an appointive system that became the basis for the "merit selection" system that has dominated reform efforts ever since. Under Kales's proposal, an independent, nonpartisan commission would nominate candidates to fill judicial vacancies, an elected official--the chief justice--would appoint judges from among the lists of nominees, and the populace in noncompetitive elections would periodically assess the performance of the judges thus selected. (14) Later commission-based appointive systems replaced the chief justice with the governor but otherwise followed Kales's lead. Over time a consensus emerged among reformers in favor of such commission-based appointive systems, which were christened "merit selection" systems. In 1920 the American Judicature Society endorsed "merit selection," and in 1937 the American Bar Association followed suit, providing powerful institutional support for reform efforts. (15)

From the 1960s to the 1980s, the proponents of "merit selection" enjoyed considerable success--the number of states employing "merit selection" plans for choosing supreme court justices, for example, rose from three to eighteen. (16) More recently, however, the reform movement has lost momentum. Since 1990, legislatures in North Carolina, Texas, and elsewhere have considered "merit selection" plans, only to reject them. (17) In 2000, voters in every county in Florida voted against a referendum on "merit selection" for trial judges. (18) Since 1988 only Rhode Island has adopted "merit selection," and it was forced to change its selection system because of a scandal on the state's high court. (19)

A variety of factors may have contributed to this loss in momentum for the reform movement, ranging from deficiencies in the particular plans that were proposed to popular opposition against relinquishing a direct vote on who should serve on the bench. Regardless of the reasons, the record of the last two decades suggests the importance of reconsidering the reform consensus and addressing anew the design of state judicial selection systems. Moreover, the Supreme Court's 2002 decision in Republican Party of Minnesota v. White, which upheld the right of judicial candidates to take public stands on controversial issues, seems to promise a greater politicization of judicial elections. (20) This shift may encourage a reconsideration of the advantages of alternatives to election. Thus, regardless of one's ultimate views on the merits of appointment versus election, Fordham University School of Law's Rethinking Judicial Selection Symposium is certainly timely.

Any reconsideration of judicial appointive systems must include both the broadly theoretical and the intensely practical. It should identify the key questions that must be addressed in creating a system of judicial appointment, elaborate and defend the principles that should guide choices among alternative appointive systems, and clarify how those principles can be translated into institutional arrangements that will advance the goal of a quality judiciary. This reconsideration should also take seriously the arguments and claims of those who oppose the appointment of judges. Insofar as the concerns of opponents are valid, efforts should be made to design an appointive system that is responsive to those concerns. Even if those concerns lack merit, it is important not to dismiss them out of hand. Reformers need to engage their opponents and present reasoned arguments in support of appointment. As its contribution to this effort, this Article highlights some of the basic choices that reformers must make in creating such a system and elucidates arguments for and against alternative institutional designs.

WHAT SHOULD AN APPOINTIVE SYSTEM SEEK TO ACCOMPLISH?

The most basic question in designing a system of judicial appointment is: what is one seeking to accomplish? I would argue that a system of judicial appointment--like systems of judicial selection more generally--is a means to an end, namely, the elevation to the bench of good judges and their retention in office. Thus, the fundamental criterion for judging a selection system is the results it produces. The best system of judicial selection is the one that over time produces the best judges. If judges are to serve more than a single term in office, the best system of reselection or deselection is the one that over time retains judges who have performed well and removes those who have not.

This may seem non-controversial, or even obvious, but the literature on judicial selection suggests otherwise. Most arguments for the appointment of judges focus on deficiencies associated with the election of judges rather than on the qualities of the judges who are appointed. (21) Advocates of appointment note that judicial elections in the states have become "noisier, nastier, and costlier," characterized by "pernicious rhetoric directed at courts and individual judges," by "relentless negativity," and by "dirty politics, even gutter politics." (22) They insist that voters are uninformed about and uninterested in judicial races. (23) Moreover, because voters lack adequate information about judicial candidates, they are easy prey for misleading claims and appeals during electoral campaigns, and voters often make their choices based on factors other than a reasoned consideration of the strengths and weaknesses of judicial candidates. (24) Finally, proponents of judicial appointment contend that the escalating cost of judicial campaigns has created suspicions that judges are beholden to campaign contributors, and this has fueled public cynicism about the administration of justice. (25) Indeed, because voters often do not differentiate sufficiently, charges against individual judges have the effect of undermining respect for the judiciary as a whole. (26) As Charles Gardner Geyh succinctly summarized it, "judicial elections stink." (27)

Whatever the validity of these charges--and they are contested (28)--they do not address directly the quality of judges who are appointed or their superiority to those who are elected. There are at least three reasons for this. First, although voluminous literature on the topic has yielded a rough consensus as to qualities desired in a judge, the list is so broad--a catalogue of nearly every virtue known to humankind, plus the advantage of experience--that it offers little guidance for judicial selection. Given this difficulty, the American Judicature Society's Model Judicial Selection Provisions opted merely to provide for the nomination of "highly qualified persons." (29) The American Bar Association's Standards on State Judicial Selection focus on ensuring a commission qualified to assess candidates rather than on elaborating the grounds for assessment. (30) Insofar as they do list desirable qualities for judges, they fail...