Judicial politics: making the case for merit selection.

• Author: Zeidman, Steven
• Position: Issues Facing the Judiciary

I am delighted to be here. If you will bear with me, indulge me just a little bit of a personal reflection. Prior to coming to CUNY Law School, I was the Executive Director of The Fund for Modern Courts, a court reform, non-partisan, statewide organization. (1) About five years ago, we were trying to figure out how to honor the memory of a former judge of the Court of Appeals, Hugh Jones. (2) A group of us got together and thought: "Well, Hugh Jones was a real intellectual, in many ways a giant of the Court of Appeals--maybe we should create a lecture series with judges talking about issues affecting the judiciary." We realized pretty soon that we needed some help to make this a reality. Albany Law School, through its then-Dean Thomas Sponsler, enthusiastically agreed to be a cosponsor. Out of that collaboration was born the annual Judge Hugh R. Jones Memorial Lecture at Albany Law School. So, for me it is full circle and especially delightful to be here talking about issues affecting the judiciary. I thank the Albany Law Review for inviting me.

Judicial selection: it is a wonderful opportunity to talk in an academic setting about something that is far from academic. It certainly can be, but if right now you went into LexisNexis, Westlaw, Google, and the Index to Legal Periodicals, whatever works for you, and typed in "Judicial Selection Reform," you would get buried in an avalanche of articles, probably from all fifty states. (3) Judicial selection is on the national radar screen. There is so much going on at so many levels. For me, the main issue--the issue that I care most about--is whether to elect or to appoint our judges. How do we want to create a judiciary? That is what I will address.

More specifically, where do our judges come from? Or, putting it more relevantly for those who aspire to the bench, how do you become a judge? I suggest to the students here that this is something you should be thinking about. If judges in your jurisdiction are elected, you should begin, quickly, becoming politically active. If judges are appointed, you should start to figure out how those systems operate. I suggest to those with judicial ambitions that it is far from too early for you to begin thinking about these issues.

So, where do we start? I think by asking: what kind of a judiciary do we want? And within that: what do we expect from the individuals who comprise this ideal judiciary? Certain things, I am sure, feel very obvious. Regardless of the system used to select judges, we can agree that our judges should be smart. That is easy enough to state in principle, but how do we measure intelligence? Law school grades? LSAT scores? SATs? How about an exam--a judge test or some kind of certification procedure? (4) We could send judicial aspirants to pre-judge schools and see how they perform. (5) The simple truth is that trying to measure intelligence is harder than it might, at first blush, appear. Think about other characteristics of the ideal judge, such as integrity and industriousness. How can we ascertain whether someone has the requisite amount of those attributes? That is part of the challenge, and I think that is why we have to figure out what the best system is to try and get us there. Let me suggest that ultimately--and again, these may seem like trite phrases, but I want to try and make them more textured--ultimately, two scholars got it just right when they said that the goal, as we think about creating a judiciary, is to produce "a qualified, inclusive and independent judiciary." (6) Qualified, inclusive, and independent. Which system, elective or appointive, do you think is more likely to yield a qualified, inclusive, and independent judiciary?

Let's start with the elective system. For many, political elections are hardly synonymous with independence. To them, the phrase "judicial elections" is anathema; it should not be in our legal system let alone our lexicon. You have heard today in great detail how judicial elections throughout this country have evolved. Twenty--maybe twenty-five--years ago, they did not resemble the worst sort of campaigns and elections that have become the norm for other elective positions, but more and more that is what they are becoming. (7) The vitriolic name-calling, the attack ads, the million-dollar fundraising, the influence of special interest groups--all are rapidly making judicial elections indistinguishable from other campaigns. Hardly anyone thinks this is a good thing. And, of course, as you have heard, judicial political campaigns, even as they begin to resemble all these other campaigns, still have their own unique issues. Can and should judicial candidates be allowed to give opinions on legal issues, express how they would rule, or make promises? Should they be able to campaign and attempt to curry favor with the electorate like any other politician? These issues, unique to judicial elections, have to give us great pause. You have already heard today about how the Supreme Court interpreted Minnesota's judicial campaign rules that restricted judicial candidates. (8) We are still experiencing the aftermath of that decision, but I recommend that it is worth your time to go back and read the Court's opinion carefully. While the Court discusses whether judicial candidates can announce their positions on legal issues, and, as a result, views the case through the lens of...