The futile quest for a system of judicial "merit" selection.

• Author: Dimino, Michael R.
• Position: Perspectives: Judicial Elections Versus Merit Selections

It is a mistake ... to try to establish and maintain, through ignorance, public esteem for our courts.

--Judge Jerome Frank (1)

1. INTRODUCTION

   The challenge in designing the optimal selection system for judges is that judicial independence and accountability are mutually antagonistic: To the extent that greater public involvement in judicial campaigns occurs, the threat to judicial independence is increased. (2) The "Missouri Plan," or alternatively the "merit-selection plan," was an attempt to find a middle ground. Under merit selection--purely, so far as I can tell, a propagandistic misnomer: nothing ensures that judges chosen under that plan will be better than judges under any other system (3)--the public has little say in who assumes the bench initially, but can vote out incumbents at retention elections. The elections to which judges under the Missouri Plan are subject differ in important ways from the elections judges face in other systems. Most notably, there is no opponent in a retention election. Incumbent judges appear on a ballot asking voters only whether the judge should be retained in office. In most states with the Missouri Plan, a majority vote is sufficient for retention for a term, at the conclusion of which the judge must again stand for retention. The ballot discloses only the name of the judge; no partisan affiliations appear on the ballot. (4)

   Public involvement under the merit selection plan, generally confined simply to retention elections, (5) is so constrained as to be misdirected and ineffective. By removing challengers from the ballot, retention races eliminate the public figures most likely to motivate and organize opposition to the incumbent. In contested elections, challengers have an incentive to exploit every ruling by their opponents that might be characterized as benefiting an unpopular group or policy. Merit selection hopes to limit the pressure on incumbents to rule in particular ways by ensuring that there will be no candidate opposing the incumbent, and therefore less chance that the public will be alerted to those instances where the judge has flouted the popular will.

   Furthermore, by removing party labels from judicial elections, voters are deprived of an important proxy for determining whether a judge's decisions are likely to reflect the preferences of the voter. In low-visibility races, including most judicial elections, party affiliation can provide one of the most valuable indications voters have of a judge's likely future decisions. (6) Without knowing a candidate's party, voters often use racial, ethnic, and gender stereotypes in a less accurate, and more offensive, attempt to predict the decisions of the candidates. (7)

   Others have discussed exhaustively the merits and demerits of merit selection, and I do not intend in this essay to debate the "success" or "failure," per se, of merit selection since its introduction in Missouri in 1940. (8) Instead, I wish to discuss the effect merit selection has on squelching public debate about the judiciary. Once that effect is demonstrated, I then wish to assess this antidemocratic tendency against the purported goal of merit selection: maintaining some measure of accountability in a selection system nonetheless designed to make judges confident enough in their independence to render decisions according to the law rather than the will of the public.

   In making it difficult for voters to remove an unpopular judge, merit selection gives up on the goal of judicial accountability. Merit selection uses the public as participants in what is predetermined to be a useless exercise designed to ensure the retention of the incumbent. (9) Thus, accountability is sacrificed for independence, but the public is pacified with assurances that they continue to have the power, through retention elections, to discard unfit judges.

   I claim only that the Missouri Plan is unwise as a policy matter; I do not suggest any constitutional defects in the plan, and indeed insofar as it distances the public from judicial selection, merit selection approximates the model of appointing judges prescribed in the Constitution for federal judges. (10) Merit selection, though, is not forthright about its distaste for public input. (11) The public is given the opportunity to reject unacceptable judges, but then is hampered in exercising that right. Accordingly, merit selection is a sham, where public participation means the popular validation and legitimization of previously selected judicial officers.

2. ON ITS OWN TERMS: MERIT SELECTION, INDEPENDENCE, AND ACCOUNTABILITY

   Even assuming the worth of the goal of independence sought by the Missouri Plan, it is worth asking whether the system has served that goal. True, retention rates for judges are greater than reelection rates in states with judicial elections (though reelection rates are quite high--fewer than twenty percent of incumbent judges are defeated, on average). (12) But incumbents' good fortune in retention races could simply be due to the difficulties voters face in obtaining information about those judges. (13) Voters may reasonably feel (and apparently do feel) that in the absence of information to the contrary, and without any indication of the incumbent's political affiliation, it is better to retain the incumbent than face the prospect of an election to fill the vacated position, with the chance that the replacement could be much worse. (14) Thus, retention elections protect incumbency in multiple, related ways: They minimize the incentives for opposing forces to wage antiretention campaigns by preventing any individual from opposing the incumbent directly; they eliminate indications of partisanship that allow voters to translate their policy preferences cost-effectively into votes; and they increase voter fears of uncertainty by forcing a choice of retaining or rejecting the incumbent before the voter knows the names of potential replacements.

   But all this effort to marginalize the public has had little effect on the supposed dangers of judicial elections, including the partisan pressures, (15) increased expense, personal invective, and threats to independence posed by recent judicial elections. (16) Indeed, the record for spending in a judicial election was the (non-)retention election of California Chief Justice Rose Bird and Associate Justices Cruz Reynoso and Joseph Grodin in 1986. (17) Such an impact stands to reason once one recognizes that retention elections' removal of party labels and opponents, who at least have the potential to engage an incumbent about broad approaches to the administration of justice, leaves little for voters to consider but the manipulative characterizations of a few decisions by interest groups. (18) Whereas an opposing candidate who attacks an incumbent's record might be expected to explain how he would have approached a case differently, the interest group typically shouts from the sidelines that the incumbent "cares only about big business," is responsible for exponentially increasing tort verdicts, opposes voter preferences on the death penalty, opposes "traditional family values," or (ironically) has been captured by the "special interests." Charges such as these, and the problems judges face in trying to respond to these characterizations, have led one commentator to charge that "retention elections are the most unfair system of all judicial elections." (19)

   Unfair or not, whenever a judge is subject to an election--retention or otherwise--there is the risk that the judge will decide cases so as to maximize his electoral chances. And the cases that will be most closely watched by interest groups are likely to be the same cases that would be used by an opponent in a contested election. (20) Judges know that decisions setting dangerous criminals free, for example, can be used by either an opponent or an interest group to paint the judge as "soft on crime," whether the characterization is apt or not. (21) It is therefore at best unclear whether retention elections insulate judges from the feeling that someone is looking over their shoulders. (22) Increasingly they are indeed being watched, and they know it.

   Thus, Tennessee Supreme Court Justice Penny White was defeated largely based on her vote (with the majority) to vacate a single death sentence, (23) and Nebraska's Supreme Court Justice David Lanphier faced strong opposition because of his decision holding that a term-limits initiative lacked sufficient signatures to appear on the ballot. (24) Tennessee's governor praised the public's involvement in the judicial selection process, commenting, '"[s]hould a judge look over his shoulder about whether they're [sic] going to be thrown out of office? I hope so.'" (25) The remainder of this essay essentially asks whether there is anything objectionable with the governor's attitude or, more particularly, whether a state should rebuke the governor's sentiment but nonetheless involve the public by adopting a system of retention elections.

3. THE SUBJECTIVITY OF ASSESSING JUDICIAL MERIT

   The history surrounding the adoption of judicial elections demonstrates quite clearly that promoting an objectively superior judiciary is never the sole motivation of reformers, and often that interest has been far subordinated to the interest in promoting particular policy outcomes. (26) Such remains the pattern today, with controversies over judicial selection fueled by controversial judicial rulings, and factions supporting those methods of selection that will yield judges sympathetic with the factions' policy views. (27) Accordingly, whether a particular observer thinks that a particular form of judicial selection is worthy of the title "merit selection" may have as much to do with whether the judges produced under that system make decisions that match the observer's policy preferences as with whether the plan is superior in any objective way. (28) The Missouri...