Do retention elections work?

• Author: Tarr, G. Alan
• Position: Symposium: Mulling Over the Missouri Plan: A Review of State Judicial Selection and Retention Systems

During the twentieth century, judicial reformers attempting to depoliticize the selection of state court judges and increase respect for the courts advocated moving from competitive elections for judges to "merit selection" or--as it was initially known--the "Missouri Plan." During the 1960s and 1970s, these reformers enjoyed considerable success. Whereas in 1960 only three states--Alaska, Kansas, and Missouri--employed merit selection to choose state supreme court justices, by 1980 eighteen did so. (2) Of course, adoption of merit selection did not altogether eliminate judicial elections, because judges appointed under merit selection are in most states obliged to run periodically in retention elections. (3) Yet this requirement did not unduly concern judicial reformers, because they believed that retention elections differ fundamentally from partisan and non-partisan elections, in that they tend to banish partisanship and facilitate well-informed choices by voters. (4) Moreover, reformers recognized that, even if incumbent judges were defeated, this would not elevate unqualified persons to the bench since the nomination of their replacements would remain in the hands of non-partisan judicial selection commissions.

Whether merit selection in fact reduces the influence of politics in judicial selection and elevates the quality of the judiciary has been the subject of considerable debate--one where social scientists have played an increasingly prominent role. (5) This Article contributes to that debate by assessing whether retention elections serve the purposes for which they were created. However, this inquiry is only one part of a comprehensive assessment of merit selection and retention elections. one must also consider whether the ends that merit selection seeks to foster are the appropriate aims for a system of judicial selection and whether the proponents of merit selection have a persuasive understanding of the problems facing the courts. To clarify this point, this Article begins by describing the political context out of which merit selection arose and the implications of that history for the present day.

1. THE ORIGINS OF MERIT SELECTION AND RETENTION ELECTIONS

   During the early decades of the twentieth century, when merit selection was first proposed, American courts were under political attack. Progressives charged that judicial rulings betrayed a strong class bias, that judges regularly read their own social and economic philosophies into the law, and that judges willfully misconstrued the Fourteenth Amendment's Due Process Clause to strike down needed reforms and protect business interests. (6) As one commentator put it, "[J]udges habitually think in the terms of the rich and the powerful. The training, sympathies, experiences, and general view of life of most judges have made this inevitable." (7) The "absolute power of veto" they exercised via judicial review meant that they had become "political organs of the government" that "exercise definite political power without a corresponding political responsibility." (8) To combat what they perceived as judicial usurpations, Progressives proposed a variety of reforms, including popular recall of judges, popular recall of specific judicial decisions, and a requirement of super-majorities on courts to invalidate legislation. (9) Although none of these proposals was adopted nationally, they did enjoy some success in the states. During the early twentieth century, seven states provided for the recall of judges. After a presidential veto had required the elimination of the recall of judges in Arizona's draft constitution, Arizona amended its constitution to reinstitute the judicial recall immediately after becoming a state. (10) Colorado instituted the recall of judicial decisions via popular referendum, and three states--Nebraska, North Dakota, and ohio--amended their constitutions to require super-majority votes of their supreme courts to invalidate statutes. (11)

   Conservatives agreed with the Progressives that the politicization of the judiciary was a concern, but their diagnosis of the problem and the remedy they prescribed were decidedly different. They attributed the problem of politicization not to judicial activism or class bias but to the processes by which judges were selected. in particular, they argued that the predominant modes of selection in the states--partisan election and non-partisan election enmeshed the judiciary in politics, undermined respect for the courts, and discouraged the selection of highly qualified jurists. As Nebraska Governor Chester Aldrich put it in 1911, "'Probably a whole lot of this trouble comes from the fact that in many instances these inferior courts are composed of lawyers who owe their position, not so much to legal attainment and profound learning, as they do to political services rendered.'" (12) in his famous address to the American Bar Association in 1906, Roscoe Pound charged that "'putting courts into politics, and compelling judges to become politicians in many jurisdictions ... [had] almost destroyed the traditional respect for the bench.'" (13) Similarly, William Howard Taft, who as President had denounced the recall of judges as "legalized terrorism," (14) claimed that it was "disgraceful" for candidates for the bench to be campaigning, promising that their decisions would serve the interests of a particular social class. (15)"[T]he People at the polls no more than kings upon the throne are fit to pass upon questions involving the judicial interpretation of the law." (16) Conservatives believed that the way to rebuild popular support for judges and for the rule of law was to remove judges from politics and elevate more qualified persons to the bench.

   Merit selection of judges was first proposed in the midst of this controversy over the courts, and it must be understood in that context. (17) it was not an attempt to address the concerns identified by both progressive and conservative critics. Rather, it was designed to alleviate the problems afflicting the courts as understood by the conservatives. This is apparent both in the substance of the proposal and in the background of its originator, Albert Kales.

   Kales was a law professor at Northwestern University School of Law, a co-founder with Roscoe Pound of the American Judicature Society (which was formed by leading members of the legal profession to promote judicial reform), and vice president of that organization. He was thus closely identified with the legal establishment of his day. He was also a severe critic of judicial elections, which he denounced as only nominally democratic. In fact, Kales claimed that party leaders--"politocrats" in his terminology--determined the nominee, and so "the voter only selects which of two or three appointing powers he prefers." (18) Non-partisan elections did not remedy the problem, both because party leaders might still influence outcomes and because voters lacked the knowledge to choose wisely among competing candidates. The solution, Kales argued, was to eliminate the input of political parties and the populace altogether in selecting judges, substituting a system of professional--and therefore, in his view, non-political--appointment. (19) More specifically, he suggested that a commission drawn from the legal community screen potential judges and forward a list of qualified candidates to the state's chief justice, who would appoint from that list. (20) 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. In 1940 Missouri became the first state to institute merit selection for all its judges, albeit substituting the governor for the chief justice as the appointing authority. (21)

   Kales did include a system of retention elections in his original proposal, but it was not a fundamental feature of the plan. Rather, as Glenn Winters, the long-time president of the American Judicature Society, acknowledged, "The device of tenure by non-competitive election ... was originally offered only to quiet the fears of ... devotees of the elective method." (22) One advocate of merit selection suggested that, in the short run, "the public is rarely in a position to know in advance how good a judicial candidate is, but if his record as a judge is outstandingly poor, the voters can ascertain the facts, and in the merit retention election they have a means of removing him." (23) And, in the long run, it was expected that such elections could be eliminated altogether. (24)

   Fast forward to the present day, and what is striking is how closely the current debate over judicial selection and judicial performance mirrors the conflict of a century ago. The vocabulary of the current debate--"judicial activism" and "politicization"--may be new, but the complaints are not. Today, as they did then, some critics complain that judges are frustrating popular government by reading their own ideological predilections into the law and that merit selection is "a masquerade to put political power in the hands of the organized bar and other members of the elite." (25) Today, as then, supporters of merit selection counter that unfair ideological attacks on the courts, combined with political efforts to influence judicial rulings, are undermining public respect for the courts and threatening the rule of law. And, as in the past, those advocating merit selection and retention elections find themselves on one side of an ideological divide, viewing the problem less in terms of the substance of judicial rulings and more in terms of the quality of the bench and its insulation from political influences. There are, however, two important differences between the current and earlier debates over judicial selection. First, today it is conservatives who are most critical of the courts and progressives who are most...