May lawyers be given the power to elect those who choose our judges? "Merit selection" and constitutional law.

• Author: Lund, Nelson

INTRODUCTION

Imagine that Congress enacted a law under which the nation's bank presidents elect three people to serve as candidates for Secretary of the Treasury, and the President is required to appoint one of these candidates. Or suppose that a state required its governor to choose the chief of the state police from a slate of three candidates elected by the state troopers.

Most people would have an immediate gut reaction to these hypotheticals: "That cannot be right." This response has a sound basis in self-evident principles of political economy. The Secretary of the Treasury has a great deal of discretionary authority over the regulation of banks. Allowing the presidents of these institutions to elect the candidates for Secretary would create a blatant conflict of interest. Similarly, the head of the police force is the supervisor of the troopers, so they would have a conflict of interest in deciding who could be their boss. (1)

Supporters of merit selection might point out that bank presidents and state troopers have a lot of information, unavailable to the general public, about the qualifications of applicants to serve as Secretary of the Treasury and head of the police force, respectively. This is certainly true, but it is equally certain that these groups would have overwhelming incentives to use that information to serve their own private interests. The general public and their elected representatives may have less information about the qualifications of candidates for these public offices, but they are also less prone to undervalue the public interest.

Accordingly, those with strong private interests in appointments to public office are generally left free to share their information and preferences with the public and with appointing officials, and even to throw all their political weight behind their preferred candidates. But that freedom to influence appointments is a very long way from giving special-interest groups the legal power to choose the nominees.

The conflicts between the public interest and the private interests of those who control political power is one of the central problems that the republican form of government is meant to address. As James Madison memorably explained:

It is essential to [a republican] government that it be derived from the great body of the society, not from an inconsiderable proportion or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified [i.e., during pleasure, for a limited period, or during good behavior]; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character. (2) The U.S. Constitution scrupulously respects the principle that Madison articulated, and my hypothetical constraint on the President's discretion to choose the Secretary of the Treasury would violate the Appointments Clause. (3) But what about the state police hypothetical? Here the law is not quite as clear, and the example is not quite so hypothetical.

Many states choose judges under a "merit selection" system, often referred to as the Missouri Plan, that gives a preferred role to lawyers. (4) Under the Kansas constitution, for example, the governor fills vacancies on the state's supreme court. (5) The governor, however, is required to appoint one of three nominees presented to him by a "Supreme Court Nominating Commission." (6) The commission comprises nine members, chosen as follows. The chairman is elected at large by the members of the state bar. (7) The bar members in each of the state's four congressional districts elect one commissioner. (8) The governor appoints a non-lawyer from each congressional district. (9) Thus, the state's lawyers elect a majority of the commission.

The constitution, in turn, requires the governor to appoint one of the three nominees that this bar-controlled commission has selected. (10)

Although this system may not satisfy Madison's criteria for republican institutions, there is little doubt that the procedure would be upheld under the Guarantee Clause. (11) The Supreme Court has stressed its extreme reluctance to invoke this clause as authority for adjudicating political disputes in the states. (12) Perhaps that reluctance reflects an appropriate respect for the principles of federalism and a prudent recognition of the Court's very limited capacity for converting the finer points of political theory into law.

Until recent times, that would probably have been that. The Kansas nominating commission, like my hypothetical involving the election of candidates for chief of the state police, may be a bad idea, but it is one that the federal courts would have left the people of Kansas free to adopt. During the past half century, however, the Supreme Court has grown more willing to constrain state choices regarding the structure of government. Rather than invoke the Guarantee Clause, the Court has turned to the Equal Protection Clause. Whether or not the resulting decisions have been consistent with the original meaning of the Fourteenth Amendment, (13) there is now a large and well-settled body of case law strongly indicating that the Kansas nominating commission is unconstitutional.

The inferior federal courts that have reviewed Missouri Plan mechanisms have consistently upheld them, but these courts have all relied on flawed legal analyses. An equal protection challenge to the Kansas system is now being litigated, and the case provides an opportunity to apply the Supreme Court's precedents faithfully. If correctly decided, the case will also bring that state's judicial selection procedures into closer conformity with republican principles of government. Lawyers may not like the outcome, but that dissatisfaction is no reason to disregard the Court's settled doctrine.

1. SUPREME COURT PRECEDENT

   1. The Governing Principle

      The Supreme Court decision most relevant to the Kansas litigation is Kramer v. Union Free School District No. 15. (14) This case involved a state law under which local school boards were elected solely by voters who either (a) owned or leased taxable property within the school district or (b) had children who were enrolled in the local schools. (15) The law gave school boards significant control over the schools and their budgets, and village governments were required to levy taxes on real property for the support of the schools in their villages. (16)

      Invoking the "one person, one vote" equal protection decision in Reynolds v. Sims, (17) the Kramer Court applied strict scrutiny. (18) Noting that this case involved a complete denial of the franchise to certain otherwise qualified voters, and distinguishing it from cases involving vote dilution (like Reynolds itself), (19) the Court held that the challenged statute could not be upheld unless it was both "necessary to promote a compelling state interest" and "sufficiently tailored" to serve that interest. (20) In holding that strict scrutiny applied, the Court specifically observed that the limited jurisdiction of the school boards was irrelevant:

      Our exacting examination is not necessitated by the subject of the election; rather, it is required because some resident citizens are permitted to participate and some are not. For example, a city charter might well provide that the elected city council appoint a mayor who would have broad administrative powers.... [But] if the city charter made the office of mayor subject to an election in which only some resident citizens were entitled to vote, there would be presented a situation calling for our close review. (21) The State defended its statute by arguing that it had a strong interest in limiting the franchise to those "primarily interested" in school affairs--namely, the taxpayers who financed the schools and the parents whose children attended the schools-because other residents are less likely to be fully informed about local school affairs. (22) The Court declined to decide whether such considerations could ever constitute a compelling government interest. (23) Even assuming that it might, the statute at issue in Kramer was insufficiently tailored to serve such an interest. (24) It denied the franchise to interested and affected persons like the plaintiff in the case (a childless adult who was living with his parents), while granting the franchise to an un-interested and childless adult who rented an apartment in the district. (25)

      The statute struck down in Kramer resembles the Kansas law under which candidates for the state supreme court are selected. If anything, the Kansas law is far less narrowly tailored to serve the State's interest in restricting the franchise to those "primarily interested" in the outcome. Every citizen has a very substantial interest in the activities of the state supreme court, which has enormous powers to affect the welfare of all who are subject to its jurisdiction. A state supreme court certainly has far more power to affect the general public than a local school board has over a childless man who does not pay local taxes.

      The Kansas case may at first seem distinguishable from Kramer because the Kansas supreme court justices do not fill their offices as a direct result of elections that violate the one person, one vote principle. This superficial difference between direct and indirect elections, however, is not itself significant. Presidential elections, for example, are subject to scrutiny under Reynolds, notwithstanding the intermediating role of the electoral college. (26)

      If Kramer...