A plea for reality.

• Author: Schotland, Roy A.
• Position: Symposium: Mulling Over the Missouri Plan: A Review of State Judicial Selection and Retention Systems

1. THE ENDLESS DEBATE II. A REPLY TO ADVOCACY AT THE SYMPOSIUM III. ARE JUDICIAL ELECTIONS LIKE OTHER ELECTIONS, SHOULD THEY BE? IV. THE LIVELY, THORNY PROBLEM OF RECUSAL BECAUSE OF CAMPAIGN CONDUCT AND/OR CAMPAIGN FUNDING V. REALISTIC EXPECTATIONS VI. STEPS TO REDUCE THE PROBLEMATIC ASPECTS OF JUDICIAL ELECTIONS VII. HONORING FIFTEEN CHIEF JUSTICES Thank you for the privilege and the pleasure of joining you, in the best possible state for any discussion of judicial selection and blessedly at a distinguished law school. For me, after twenty-five years of involvement in the judicial election scene and four weeks after retiring from teaching--but not, I hope, from continued involvement--this is a unique opportunity to share views, air questions, consider the ever-evolving changes and challenges, and speak bluntly on a few points. I treasure the friendships I have built with others similarly involved, and I hope that my comments, some of which may seem unrestrained, are taken in the spirit that underlies them. My plea for reality stems from the view that this subject suffers from much myth and much spin. Myth matters when it differs from reality about where we are and how we got here. Spin matters because it interferes with honest dialog about where we are and what, if any, change is needed.

   What should get our attention? That is always a question of priorities and relative relevance. Here, what is "relevant" is what may help reduce the problems in judicial selection.

1. THE ENDLESS DEBATE (2)

   Legend has it that a long-ago Chief Justice of Texas said, "No judicial selection system is worth a damn." This view has been all but proven by American experience; nothing else in American law matches this subject in terms of the volume of written debate and endless sweat spent working for change. The selection system for federal judges is unchanged but far from untroubled, and

   the states have never used a common method.... [o]ne can identify almost as many different methods ... as there are states in the Union.... Moreover, most States have changed the way they choose judges at some point in their history, often more than once. (3) My focus is on judicial elections. Since I began work on them, I have adhered to agnosticism about methods of selection. (4) One reason is this: My writing and work aim at making a difference, but to say anything new on this subject seems almost impossible, and for the last generation the battles to change selection methods have been futile. (5) Of course past performance is no predictor of the future, but, as the chief justices formally resolved two years ago, "elections will stay in many and perhaps all of the states that have that system." (6) People who advocate ending contestable elections always point to some pending bill in some state (lately, Nevada), but for over one hundred years, the hurdles in turning proposals into constitutional amendments have been all but insuperable. (7)

   The endless debate does have new elements. Some "merit" systems have recently suffered unusual confrontations between governors and nominating committees. (8) Also, we have new analyses drawing upon the actual operation of "merit" systems to argue that some are dominated (or even controlled) by the organized bar and that at least some actions have been partisan. (9) Further, unless the Tennessee legislature does this spring what it refused to do in 2008, its "merit" system for appellate judges will terminate in June 2009. This would be the first time for any jurisdiction to return to contestable elections after ending them. (10)

2. A REPLY TO ADVOCACY AT THE SYMPOSIUM

   At the Symposium, some advocates urged judicial elections as the only way--or at least the best way--to assure accountability; that advocacy requires response. Without diminishing my decades-long adherence to agnosticism about judicial selection methods, I submit six points in response to such advocacy.

   First: The advocates of judicial elections base their argument on the notion that the norm in America is to elect any high official who has a role in policy; that injecting "merit"-system screening at the selection stage is "elitism;" and that the "merit" system's retention elections are not elections but "referenda." Though we give elections an enormous role, we do not have "majoritarian democracy uber alles." We have a republican form of government with mediating tools and structures like the U.S. Senate (not "elitist" but federalist), the executive veto, and, of course, judicial review by appointed judges, including life-tenured ones. The "merit" system, good or bad, is one more mediating structure in our ever-evolving system of checks and balances. We choose mediating devices to advance deliberativeness.

   Why do advocates urging elections aim all their effort at judges and ignore administrative officials--from zoning to police searches and the regulation of health and the environment--who govern vastly more of our lives? One possibility is that administrators are subject to removal. But, so are state judges; retention elections guarantee periodic opportunities for removal by voters, and contestable elections offer opportunities to hold incumbents accountable. The reality of modern governance is remarkably far from the beliefs of myth-laden voters, which were described perfectly by a Mississippi editor in 2002. After voters defeated a ballot proposition to lengthen judicial terms from four to six years, the editor commented, "They'd vote on the mailman if they could." (11)

   Whether one applauds the "merit" system (perhaps as excellent, perhaps as only the best available alternative) or attacks it (from its self-applauding label to some states' excessive role for lawyers), our dialog about judicial selection needs to be freer of spin. We need more discussion like that provided by Justice Sandra Day O'Connor. (12)

   Second: Accountability for judges is secured not only by facing election but also by pervasive procedural requirements like appeals and written opinions, by massive bodies of law that cabin decision and even discretion, and by disciplinary oversight that is incomparably closer and more active than for other elective officials. some all-out advocates of elections for judges argue that accountability solely means accountability to voters. But, even if one accepts that shrunken definition, it misses the point that voters often choose to replace direct elections with other modes of selection and accountability. It misses the point even where contestable elections are retained because having contestable elections gives almost no opportunity, in fact, for the voters to choose: contests are nearly non-existent. While high-court elections do draw competition, the norm for our trial judges is like the California experience: Of its roughly 450 Superior Court judges up for re-election in 2004, only nine were even challenged. From 1972-2002, challenges peaked at 5.1% in 1978, two years after Rose Bird overcame opposition and won retention, with the only other "high" being 3.2% in 1988, two years after she was defeated. From 1996-2004, of the sixty-seven judges who were challenged, only nine lost, although obviously challengers would take on only vulnerable judges. From 2000-2004, of the thirty-nine who were challenged, only four lost--one of them literally a wife-beater; twenty-one of that thirty-nine were landslide winners, getting over 65%, while another twelve got over 55% of the vote. (13)

   Third: The most frequent attack on the "merit" system is that it does not abolish "politics." This point has two fatal flaws: (

   1. With all due respect, it is preposterous to think that one could or would want to remove all politics from any official action in a democracy; and (b) The attack is based on lumpthinking, treating all "politics" as the same. But everywhere, even among nursery school kiddies, we find "politics" of some type. The inescapability of "politics" was never stated better than it was by New York's Schuyler Chapin, general manager of the Metropolitan Opera, Dean of Columbia's School of the Arts, and New York City's Commissioner of Cultural Affairs: "Politics are at their worst in the arts world and the academic world." (14) In fact, "merit" selection greatly reduces the relevant kinds of politics: partisanship and the inside track for people active in the realm of electoral politics for non-judicial offices. For example, in 2008 in Johnson County, Kansas (Kansas City), where voters defeated a proposal to end the local "merit" system, one of the arguments used to defend that system pointed to the elective system in Wichita (Sedgwick County), where "three judges are former state legislators and a current state senator [was] running for a judgeship...." (15)

   Fourth: Elections are crude forums, at best, for airing and making decisions about judicial performance. Roe v. Wade, flag salutes, lightning-rod capital cases, cases about a child, and cases about other dramatically personal plights (e.g., Terri Schiavo) are infinitely far from the docket of virtually any judge who faces some election--but many judicial campaigns have involved, often centered on, such matters. Even in state high courts, the tiny portion of the docket that involves constitutional issues is either dictated (or nearly so) by federal court precedent or does not involve high-visibility matters. The hot-button issues or cases likely to get attention in campaigns are a complete (or near-complete) distortion of what the judge or candidate has done or can do. Would anyone say that the public discourse about hot-button cases is any better than distorting, hyper-simplification, and slanting? Such episodes are outbursts of passion seeking to displace our processes and dispassionate, deliberative efforts to act justly--the opposite of all we revere as the rule of law. As an ABA task force found,

   [n]ever is there more potential for judicial accountability being distorted...