Gubernatorial Influence in Merit-Based Judicial Selection: Kansas, Missouri, and Colorado, 2012-2021.

• Author: Reger, Zachary

TABLE OF CONTENTS ABSTRACT 107 TABLE OF CONTENTS 108 I. INTRODUCTION 109 II. RESEARCH DESIGN 111 A. Three Methods of Merit Selection 111 B. The Data Collection Process 115 C. Partisan Noise and the "Holdover" Problem 118 III. RESULTS 120 A. The Top-Line Results 121 B. Breakdowns by Case Type 122 C. Holdover Judges: The Case of Judge Powell 126 IV. DISCUSSION 127 A. Appointive Alignment in Governor-Controlled and Hybrid Systems 128 B. What's the Matter With Kansas? 129 V. CONCLUSION 132 I. INTRODUCTION

Writing in the early nineteenth century, political observer Alexis de Tocqueville noted the moderating effects of lawyers on the "impetuosity" of the American public in the arena of public affairs. (1) "When the American people is intoxicated by passion," he wrote, "it is checked and stopped by the almost invisible influence of its legal counsellors, who secretly oppose their aristocratic propensities to its democratic instincts." (2) In this role, lawyers serve as a hidden "American aristocracy," Tocqueville believed, and they do so in a country that eschews any outward pretentions of establishing an aristocratic class. (3) Lawyerly professionalism may protect American democracy from itself, thought Tocqueville, and it may do so without drawing undue attention to its own anti-democratic character.

Merit-based judicial selection applies this Tocquevillian vision to modern state governance. Under a merit-selection scheme, a commission containing a set number of attorneys and nonattorneys screens candidates for an open judgeship. The governor may select a final appointee only from the slate of finalists approved by the commission. As the proportion of attorneys on the screening commission is always greater than the proportion of attorneys in the general population, such a system hands attorneys enhanced power over who becomes a judge. By granting attorneys this power, merit selection aims to depoliticize the selection process, thereby producing a more professional and unbiased judiciary. (4) First adopted in Missouri in 1940 to thwart the influence of political bosses on elected judges, (5) merit selection is now the most popular method of state-level judicial selection. (6) But the empirical effects of merit selection on judicial behavior are under-studied. (7) Merit selection neither "eliminate[s] political forces from the selection of judges" nor hands "lawyers representing the affluent and prestigious institutions in society" the sole ability to "decide who will sit on the bench." (8) By affording both political and legal actors a seat at the table, merit selection arrives at some middle point between an absolutely apolitical but unaccountable judiciary and one that is completely beholden to the popular will.

This study examines how well the Tocquevillian vision succeeds as applied to one aspect of merit selection: the degree of influence exercised by the popularly elected governor. Specifically, the study examines how three different types of merit selection--bar-controlled, hybrid, and governor-controlled--affect the ability of the governor to appoint judges who engage in partisan-aligned ideological voting behavior.

Political scientists have developed two primary models of judicial voting behavior: the legal model and the attitudinal model. Under the legal model, "judges make decisions based on legal factors," which may be the intent of the drafters of a legal provision or application of the principle of stare decisis to adhere to prior judicial decisions. (9) Under the attitudinal model, "judges make decisions based on their own attitudes and values." (10) Such attitudes and values may include the political ideology of the judge on a standard left-right, or liberal-to-conservative, spectrum, which roughly aligns with contemporary divides between the Democratic and Republican parties.

By examining the judicial voting behavior of merit-selection judges within this spectrum, this study analyzes the extent to which an appointing governor is able to screen for judges who match the overarching political ideology most aligned with the governor's respective political party. In other words, this study looks at the extent to which Republican-appointed judges engage in conservative voting behavior, and the extent to which Democratic-appointed judges engage in liberal voting behavior, to see if the judicial behavior of these groups differs to a greater extent in some merit-selection systems than in others.

This partisan differential is crucial, as gubernatorial influence lies at the heart of what merit-selection systems aim to achieve. On the one hand, ours is a democratic society, and government officials who exercise public power should have some degree of popular legitimacy. In a merit-selection system, the popularly elected governor serves as a stand-in for the mass public and its democratic desires, ensuring that attorney influence of the process does not go unchecked. On the other hand, courts are not like the political branches of government. Judicial processes should be impartial, with litigants receiving a fair hearing and a judgment based on the law. Overly partisan judges may frustrate this goal, and attorney influence over judicial selection can have a moderating effect on who becomes a judge. Thus, a properly calibrated merit-selection system would balance these two concerns, promoting just the right mix of political accountability and independence in the state judiciary. This study measures gubernatorial influence, a proxy for political accountability, to see how three different methods of merit selection strike this delicate balance.

Section II starts with an overview of the research design and the data collection process. Section III details the results of the study. Section IV then discusses these results and what they say about the three different formats of merit selection. Section V concludes.

2. RESEARCH DESIGN

   This study measures the degree of gubernatorial influence over the ideological voting behavior of state supreme court judges appointed under three systems of merit-based judicial selection. This Section explains the design of the study, including the attributes of the systems being studied, the independent and dependent variables, and how the data were gathered and coded. This Section then addresses a potential issue with the study's chosen method of measurement and explains why such issue is not as problematic as it may appear.

   1. Three Methods of Merit Selection

      For the purposes of this study, I define merit selection as a system in which a standing commission, independently established by state statute or constitutional provision, screens candidates for any open judgeship on the state supreme court. From among these candidates, the commission sends a slate of finalists to the governor, who is empowered to make the ultimate appointment. In a true merit-selection system, the commission's recommendations are binding, meaning the governor may only appoint a candidate from the commission's approved slate. If the governor fails to act in the allotted time frame, (11) the commission--or some other decisionmaker as assigned by law (12)--makes the final appointment. (13) These commissions are composed of some combination of nonattorneys appointed by the governor and attorneys who are either elected by members of the state bar association, appointed by the bar association leadership, or appointed by some public official or officials. (14) Additionally, the commission often contains one sitting judge who serves as chair, but some states forego this feature. (15)

      Another commonality is the mandatory retention election, which lends merit selection a greater democratic legitimacy. After a brief "probationary period," (16) a newly appointed judge must face the electorate in an uncontested election, where voters are asked whether they would like the judge to remain in office. (17) If a majority of voters cast their ballots to retain the judge, the judge assumes a full term, at the end of which comes another retention election, a process repeated until the seat is vacated. (18) These retention elections are "uncontested" in the sense that the judge never runs against an opponent. The question posed to voters is merely one of up-or-down approval. (19) In the rare case where the judge is not retained, the selection process begins anew.

      This study measures gubernatorial influence over the appointment of state supreme court judges in three merit-selection states: Kansas, Missouri, and Colorado. Each state uses a distinct variation of merit-based judicial selection at the supreme court level, with the following shared characteristics: (1) an independent commission screens candidates, sending three finalists to the governor; (2) the governor must appoint one of those finalists; and (3) each newly appointed judge must thereafter stand for retention in a statewide, uncontested election. (20) But the three states differ in the composition of their respective selection commissions, specifically in the proportion of the commission membership that is selected by the governor. (21)

      Kansas has a "bar-controlled" commission, in which five of nine commissioners are attorneys elected by members of the Kansas bar association, and the other four commissioners are nonattorneys appointed by the governor. (22) Missouri has a "hybrid" commission, in which three commissioners are attorneys elected by members of the bar, three are nonattorneys appointed by the governor, and the remaining commissioner is the chief justice of the state supreme court, who serves as chair. (23) The position of chief justice rotates to a new member of the Supreme Court of Missouri every two years, ensuring no single judge remains on the commission for long. (24) Colorado has a "governor-controlled" commission, in which eight nonattorney commissioners are appointed by the governor, and seven attorney commissioners are appointed by...