How the pickers pick: finding a set of best practices for judicial nominating commissions.

• Author: Caufield, Rachel Paine
• Position: Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges

States and municipalities still seek to build upon and improve the judicial selection methods used by prior generations. Like most institutional arrangements that are responsive to the needs of society, judicial selection demands an on-going process that borrows and profits from the past, meets the needs of the present and remains flexible to permit future adaptation. (1) At the core of any system of justice is the judge, the arbiter of society's conflicts. While good judges cannot ensure a just society, arguing that the quality of the judiciary is unrelated to the quality of justice proves difficult. (2) Unqualified or unsuitable judges will lead to capricious justice, where inconsistency, inequality, and arbitrariness undermine the force of law. Arbitrary decisions degrade the meaning and purpose of democratic government and are anathema to the rule of law. (3) The debate over methods of judicial selection reflects, at its heart, a debate about the value of law as a governing force. The goal is to produce a judiciary worthy of the respect and obedience of the community, thereby promoting consistency, stability, and fairness. There is a continuing need to reevaluate and assess methods of judicial selection to ensure a qualified bench and advance the cause of justice.

Traditionally, the debate over methods of judicial selection has centered primarily on the competing ideals of judicial independence and judicial accountability. An independent judiciary, free from political constraints that impede fair and impartial decision-making, ensures that judges' decisions will reflect the case facts and the law. Every citizen benefits from a judicial system that accurately and effectively addresses conflicts in a neutral forum. Unlike officials in the legislative and executive branches, who are meant to be the representatives of the people, judges occupy a unique position in that they are responsible to the law. A purely independent judiciary, subject to no limits or checks on its authority, however, may run afoul of the law without any serious consequences. (4) Therefore, judicial accountability is both necessary and desirable to provide checks on the powers of the judge. (5) Finding an appropriate balance is (for obvious reasons) difficult. Judges need decisional independence if they are to be faithful to the law, yet constitutional government demands institutional accountability. (6) Constitutional government depends on a judiciary populated with judges who not only understand the law, but will apply the law fairly and faithfully.

These conflicting goals form the backdrop for the ongoing debate over how to best select judges. Since the American Revolutionary War, there have been heated debates about the best methods for state judicial selection. In the early 20th century, the "merit selection" plan was proposed. (7) This method was thought to balance the competing ideals of independence and accountability by combining features of appointment and popular election. (8) From 1940 until 2000, the "merit selection" plan was adopted in some form by thirty-two states and the District of Columbia, (9) the most prominent judicial reform movement since the Jacksonian era. "Merit selection" systems use a bipartisan nominating commission made up of lawyers and laypersons that makes recommendations to the appointing authority. (10) Today, as we reassess appointive methods of selection, a closer examination of existing judicial nominating commissions can provide vital insights to advance our discussion.

To that end, the Article proceeds in five parts. Part I provides a brief history of judicial selection in the states, with particular attention to the development and adoption of appointive methods (including the so-called "merit selection" method). Part II examines the reaction to these merit selection plans and addresses common questions about the role and function of judicial nominating commissions. The third and fourth parts detail the procedures that are used by nominating commissions across the country. Although commissions vary greatly in their structure and operation, these parts review several of the most important operating procedures and examine the extent to which they have been adopted by judicial nominating commissions. Part V seeks to develop a set of "best practices" that can be adopted by nominating commissions.

1. THE HISTORICAL CONTEXT

   At the federal level, the Framers of the U.S. Constitution, responding to the abuses of King George under English rule, determined that judges should be selected by the executive, but added the safeguard of Senate confirmation and lifetime tenure to limit the President's control over the judiciary. (11) As Alexander Hamilton wrote in THE FEDERALIST NO. 76, "the necessity of [Senate] concurrence would have a powerful though in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to preventing the appointment of unfit characters...." (12) Once appointed and confirmed, U.S. federal judges were to be exempt from political control with the exception of extreme circumstances that warranted impeachment. The Framers of the Constitution recognized the value of judicial independence and wanted to ensure that judges would never be punished for specific unpopular decisions. (13) To achieve that goal, federal judges were not only granted terms for "good behavior," (14) but Article III of the Constitution explicitly forbids Congress and the President from lowering a judge's salary at any point during the judge's service on the bench. (15)

   At the state level, all of the thirteen original states opted to use some form of appointment for the selection of judges. (16) Eight of the thirteen used legislative appointment, two granted the power of judicial appointment to the governor and his council, and three states used gubernatorial appointment, with confirmation by the governor's council. (17) From 1776 to 1830, each of the states that joined the union used a system of appointment for the selection of judges. (18)

   States began to move away from appointive selection methods in the mid-1800s with the rise of Jacksonian democracy and its emphasis on democratic accountability, individual equality, and direct voter participation in governmental decision-making. (19) Judicial appointment had become the subject of considerable scorn, as there was increasing resentment about the role of the upper class in the selection of judges. (20) Appointment was seen as a tool to reinforce privilege and deny the common person of her democratic right to popular sovereignty. (21)

   Instead, direct elections became the preferred method to choose judges. (22) As early as 1812, Georgia passed a constitutional amendment to elect lower state court judges. (23) In 1816, when Indiana became a state, its constitution specified that associate judges of the circuit court were to be elected. (24) But the movement toward judicial elections did not make significant progress until the 1830s and 1840s. Mississippi was the first state to elect all of its judges when it adopted the practice in 1832. (25) In 1836, Michigan elected its trial court judges for the first time. (26) New York's constitutional convention in 1846 amended the state constitution and changed from appointment to popular election for all of its judges, starting a tidal wave of reform. (27) By the Civil War, twenty-four of the thirty four states had elected judiciaries. (28) In a single year, 1850, seven states altered their systems of judicial selection to allow for popular election of judges. (29) For the next 100 years, every state that entered the union had an elected judiciary. (30)

   Despite the initial concern that appointive selection methods were easily controlled by those with money and power, direct popular elections did not fare much better. By the latter part of the 18th century, the nation underwent significant changes, including massive industrialization and urbanization. In the largest cities, party machines came to dominate political processes, including the election of judges. (31) In New York City, Tammany Hall was free to hand-pick judicial candidates. (32) Combined with the fact that most voters were unfamiliar with judicial candidates, the machine was virtually unfettered in its ability to get those candidates favored by the local political organization elected to the bench. (33) As a result, judges were seen as corrupt, unethical, unqualified, and incompetent. (34) As early as 1853, delegates at the Massachusetts Constitutional Convention rejected a proposal to switch to popular elections and one delegate opined that elections had "fallen hopelessly into the great cistern" and that judges were now a part of the "political mill." (35) In 1873, New York considered a proposal to return to appointment--a proposal that gained considerable public support. (36)

   Given widespread dissatisfaction with partisan judicial elections that were controlled by urban party machines and declining public confidence in the judiciary, efforts were made to reform the electoral process and remove political parties from judicial selection processes. The most widely accepted method to achieve this was through the use of nonpartisan elections, whereby judicial candidates' names would appear on the ballot without any party identification. Nonpartisan elections were first used in Cook County, Illinois (Chicago) in 1873. (37) Although no statute dictated the use of nonpartisan ballots, the judges themselves decided to run without party identification. (38) Cook County continued to use nonpartisan elections in 1885 and 1893, although it eventually returned to partisan elections. (39) By 1927, twelve states used nonpartisan elections. (40) Almost as soon as states started adopting nonpartisan elections, however, problems arose. Several states, including Iowa, Kansas, and Pennsylvania, tried...