Examining the decline in support for merit selection in the states.

• Author: Andersen, Seth
• Position: Perspectives: Judicial Elections Versus Merit Selections

Popular support for constitutional change from judicial elections to merit selection systems has declined significantly over the past three decades. (1) The last state to adopt a merit selection system by constitutional amendment was New Mexico in 1988, and that was a compromise measure that retained contested partisan elections following initial appointment. (2) Between 1940 and 1988, fifteen states adopted constitutional amendments to replace judicial elections with some type of merit-selection system for some or all levels of courts. (3) Of these fifteen states, five completely abolished contested judicial elections; the remaining ten kept contested elections for some or all of their trial court judgeships. The 1960s and 1970s were the real heyday of merit selection, with twelve of the fifteen constitutional amendments occurring between 1960 and 1977. (4) Five other state constitutions include merit selection provisions, but all of these states had existing systems of gubernatorial appointment or legislative selection, or were admitted to the Union with merit selection included in their original constitutions. (5) In addition, five other states have adopted constitutional amendments to provide for merit selection processes only in the filling of some or all midterm judicial vacancies; full terms in these states are still determined through contestable elections. (6) In total, twenty-five state constitutions include provisions for some type of merit selection system.

Proponents of judicial merit selection have suffered several setbacks of late, most recently in Florida in 2000 when all counties and judicial districts in the state voted overwhelmingly to reject a proposed local-option constitutional amendment to move from nonpartisan elections to merit selection and retention for circuit and county court judgeships. (7) Ohio voters rejected a proposed merit selection amendment in 1987, (8) and long-standing efforts in Illinois, Louisiana, Michigan, and Texas--among other states--have failed to gain legislative support. The focus of judicial selection reform in the past decade has shifted decisively from the pursuit of fundamental, constitutional alteration of the methods of selection to statutory, regulatory, and voluntary measures such as public financing of judicial campaigns, contribution limits, and enhanced voter education efforts that are designed to improve, but not eliminate, contested judicial elections. Advocates of traditional merit selection plans must ask themselves if their position remains a viable political option.

There are a number of possible explanations for the decline in popular and political support for merit selection systems. Philip Dubois's study of merit selection proposals in the states between 1941 and 1980 finds that the context in which the amendments were put forth had a significant influence on the likelihood of success. (9) Those merit selection proposals that were part of larger judicial article reform packages or wholesale constitutional revisions were less likely to succeed than merit plans presented to the voters as a stand-alone measure or as part of a narrower package of judicial selection and tenure reforms. (10) But Dubois's study does not include the two most recent stand-alone proposals that were defeated handily in Ohio (1987) and Florida (2000). Most commentary on and studies of judicial selection reform have focused either on popular response to ballot measures or on the dynamics of legislative support for merit selection proposals. Few have considered the decline in support for merit selection in the broader context of popular support for and confidence in a range of institutions that play key roles in merit-based appointive systems, such as state executive and legislative branches and the organized bar. The term-limits movement of the early 1990s, during which eighteen states adopted term limits for state legislators, (11) reflects a growing mistrust of governmental institutions and public officials that correlates with the public reaction to merit selection proposals. Taken with the low level of public confidence in the legal profession, (12) these factors may play an increasingly important role in shaping attitudes towards merit selection. In addition, the interplay between public opinion regarding the effectiveness of the federal judicial selection process and public support for merit selection proposals in the states has not been explored in any significant way.

Most of the twelve states that adopted merit plans between 1960 and 1977 shared, at the time of adoption, a number of characteristics that may help to explain why they were more supportive of merit selection proposals than those states that have retained judicial elections. With a few notable exceptions, the states adopting merit plans in the 1960s and 1970s had relatively small, largely non-urban populations that were fairly politically and demographically homogenous. (13) It is well beyond the scope of this article to conduct a comprehensive comparative analysis of contemporary state-by-state public opinion data regarding confidence in governmental institutions, any available exit polling regarding merit selection proposals, and key demographic characteristics of the states that adopted merit selection plans. It is reasonable to suggest, however, that voters in states adopting merit plans did so at least in part because their dispositions towards governmental institutions and their demographic characteristics...