The increasingly fractious politics of nonpartisan judicial selection: accountability challenges to merit-based reform.

• Author: McArdle, Andrea
• Position: Chief Judge Lawrence H. Cooke Sixth Annual State Constitutional Commentary Symposium: The State of State Courts

1. INTRODUCTION

   In 1940 the state of Missouri reformed its method of selecting judges in its supreme court and other designated courts in an effort to insulate the judiciary from partisan politics and to assure judicial independence. (1) Missouri's system proved to be an influential innovation that spearheaded a broader mid-twentieth century court reform movement. (2) Among its key features, Missouri's approach entrusts to a nominating commission the authority to recommend a slate of qualified judicial candidates, from which the state's governor makes a selection. (3) Other than one judicial member, no commission member is permitted to hold public office, and no member may hold an "official position in a political party." (4) The chosen judge later runs against herself in an uncontested retention election in which the electorate registers its views concerning judicial performance; unless a majority of voters vote against retention, the judge continues to serve a full term of office. (5) In a practice recently formalized by Missouri Supreme Court rule, the public's decision on retention is aided by published data, including surveys of lawyers and other indicia of competent performance. (6) Such evidence-based data, it is assumed, insulate members of the judiciary from the excesses of contested, partisan elections. (7)

   Embracing the Missouri Plan, as the state's nonpartisan, commission-based method for selecting judges came to be known, thirty-six states in addition to the District of Columbia have adopted a form of the judicial nominating commission feature and, of these jurisdictions, (8) sixteen also use retention elections. (9) The Plan drew inspiration, in turn, from Progressive-era good government campaigns and their technocratic, expert-driven solutions to problems of public policy and administration. (10) By removing the courts from the potentially corrosive effects of electoral politics, this court reform initiative rejected the antiprofessional, anti-hierarchical ideology of the era of Jacksonian democracy that, in the mid-nineteenth century, had advocated for popular election of judges. (11) In the steps taken to insulate the judiciary from partisan politics, both in the initial designation and retention determination, the Plan is frequently referred to as "merit-based" selection. (12)

   In the 2010 U.S. election cycle, a campaign that identified judicial accountability as a key concern altered the tenor of nonpartisan judicial selection. Supporters of this burgeoning campaign spent generously on heated retention election advertising to unseat incumbent judges on the basis of rulings considered to be activist (in a politically liberal valence). A notable example resulted in the removal of three Iowa Supreme Court justices who joined in the unanimous 2009 ruling that declared unconstitutional under Iowa's equal protection clause a statute restricting civil marriage to opposite-sex couples. (13) These retention election expenditures, and the intensity of the anti-incumbent messages they have underwritten, (14) are generally regarded to be unusual in the states that have adopted Missouri Plan systems: they expose the judiciary to the very dynamics surrounding political processes that Missouri and other reform states had determined were a threat to judicial independence.

   Underpinning the anti-retention advertising that targets specific judges is a broader challenge to the method of selecting state judges. Judicial accountability advocates favor a return to judicial selection by popular ballot, or at least a modification of current methods of selecting members of judicial nominating commissions that accord lawyers a structural role. They argue that these changes would make the judges nominated through this process more responsive to a broader swath of the state's population. To this end, they have launched ballot petition drives, commenced litigation, and proposed legislation (15) to challenge nonpartisan judicial selection methods allegedly dominated by members of the legal profession and that reduce the input of the general electorate.

   This article describes these recent developments and offers preliminary assessments of their implications. It does not argue for the superiority of merit-based, electoral, or other methods of judicial selection but rather focuses attention on one of the assumptions underpinning the merit-based plan: that its features remove judicial selection from the often bruising dynamics of partisan electoral systems. Specifically, it analyzes the framing of accountability challenges that seek to alter both specific outcomes of a merit selection process and the structure of the process itself.

   It begins in Part II by sketching out key arguments in the debate among judges and scholars on the contours of judicial accountability. It then documents strategies of advocacy, legal and popular, that have challenged the signature features of the Missouri Plan on accountability grounds. Part III considers the specific rhetorical framing of accountability advocacy in its various forms and contexts and broaches questions about the implications of these challenges for further study: (1) Should the judicial accountability campaign be assimilated to earlier democratizing initiatives for selecting members of the judiciary? (2) How has the campaign used critiques of liberal judicial activism and anti-lawyer skepticism as frames for its challenges to nonpartisan judicial selection methods? (3) Is the advocacy to restore democratic accountability to the choice of nominating commission members an organic expression of grassroots or populist sentiment, or is it more complexly aligned with elite-based efforts at conservative mobilization, and if so, which elites? Further analysis of these questions may yield insights into the future direction and prospects for success of accountability challenges to the structural role of lawyers in merit-based judicial selection.

2. THE CURRENT LANDSCAPE OF JUDICIAL ACCOUNTABILITY ADVOCACY

   This section describes developments in selected Missouri Plan states that adopted both nonpartisan nominating commissions and retention elections as a judicial reform measure and now are facing strategies by accountability advocates either to (1) dismantle or otherwise reconfigure the nonpartisan model to make it more responsive to the electorate or (2) oppose retention through methods that resemble partisan electioneering. In analyzing this spectrum of developments, I address variations in the use of the term "accountability" in scholarly discussions of the Missouri Plan and then turn to recent evidence of accountability advocacy. First, I consider recent examples of retention election campaigns that foreground accountability concerns. Next, I consider challenges to accountability that target a prior phase of the selection process, specifically, how, and by whom, the nominating commissions are constituted that, in turn, propose a slate of judges. Here I document the asserted rationale of ballot initiatives and the theory of litigation challenging lawyers' alleged domination of the judicial nominating process and the concomitant dilution of the general electorate's input into the selection of commission members who, in turn, will select a slate of nominees.

   1. Deconstructing Accountability--Accountability to Whom?

      Some analysts of nonpartisan judicial selection highlight the "mismatch" that exists between the ideal of judicial independence and an understanding of accountability linked to a "democratic impulse." (16) Under this view, judges who issue rulings with a gesture toward the popular will must manage that impulse while recognizing the risk such a gesture presents to the independence needed to carry out the judiciary's "unique role" in interpreting law, including law that is unclear or ill-defined. (17) Other commentators see complementarities rather than conflict between these imperatives, and identify forms of accountability--accountability to other government institutions, for judicial decisions, and for individual ethical conduct--that do not require that judges conform to popular will at the expense of fidelity to law. (18)

      Another cohort of scholars link accountability more closely with the goal of ensuring some genuine public input into judicial performance and tenure. (19) These commentators cite features of Missouri Plan retention elections--the lack of direct head-to-head contests between opponents and the absence of political party labels--as depriving the electorate of meaningful information by which to evaluate an incumbent's performance. (20) Under this analysis, the lack of a challenger contesting the seat contributes to low visibility, and low levels of engagement and knowledgeable participation in such elections. (21) This lack of engagement in turn results in "false positive[]" election outcomes that return some undeserving incumbents to judicial office. (22)

      These understandings of accountability tend to emphasize, or respond to critiques concerning, the features of retention elections that arguably limit the public's opportunity to register its views about judicial performance. Yet, with respect to the most commonly advanced critiques of retention elections--that they are low-salience events that are actually intended to protect incumbents (23)--the experience of the 2009-2010 election cycle in a number of respects challenges that claim.

   2. Campaigns to Oust Incumbent Judges in Retention Elections

      Historically, judicial retention elections rarely garner much attention, as they involve no contest or competition between candidates but rather are a procedure in which the judicial incumbent competes against herself in terms of her performance on the bench. (24) Typically, judges prevail in these low-visibility, low-engagement elections and are returned to office. (25) Although a number of retention elections in the past resulted in votes unseating...