The meaning of the Constitution and the selection of judges.

Author:See, Harold
Position:Symposium: The Role of the Judge in the Anglo-American Tradition

    In the ongoing debate over the best method for choosing judges, the focus has been on the perceived drawbacks of judicial election without commensurate consideration of either the advantages of popular elections or the disadvantages of the commission system--usually styled the "Missouri plan" or "merit selection." One such consideration is the means of defining the judicial power.


    A hallmark of the Progressive Era was its emphasis on the expert. Frederick Winslow Taylor concluded his introduction to The Principles of Scientific Management by stating that, although he aimed his book especially at engineers and manufacturers:

    It is hoped... that it will be clear to other readers that the same principles can be applied with equal force to all social activities: to the management of our homes; the management of our farms; the management of the business of our tradesmen, large and small; of our churches, our philanthropic institutions, our universities, and our governmental departments. (1) Albert Wiggam stated that "[t]here should be technologists in control of every field of human need and desire--in politics, in business, industry, education, religion, ethics, philosophy, charity, law, health, labor, employment; above all, in sociology, which is simply the application of the sciences to human life and destiny." (2) Popular author and consultant Edward Earle Purinton stated in his Efficiency Question Box column of the Independent, a Progressive Era publication, that "[f]he efficiency response to almost any situation... was to seek expert advice." (3)

    I recall my mother telling me that, when she took me to kindergarten in 1948, she told the teacher she was already teaching me the alphabet. The teacher, my mother said, chastised her for trying to teach me herself. The teacher informed her that teaching was the teacher's job because the teacher was trained. The Progressive Era was the age of the expert. Teachers were to do the teaching; police were to do the policing. Ordinary citizens were to stay out of the things they did not understand and were to seek out expert advice.

    I do not know that I can trace to the progressive movement the phenomenon of the laws being left to the lawyers and the Constitution being left to the Supreme Court, but I recall, when I was in high school, researching a bill debated in the House of Representatives. A representative asked the bill's sponsor whether the bill was constitutional. The sponsor responded that it was for the Supreme Court to decide. Even as a high school student, I was aware that each member of Congress swears an oath to uphold the Constitution. (4) The sponsor appeared to be shirking that responsibility with his response. (5) What a change this was from the days of the early Republic when the meaning of the Constitution was debated in the popular press in what today we call the Federalist Papers and the Anti-Federalist responses. (6)


    It was during the Progressive Era that the so-called "Missouri Plan"--or "merit selection"--was born. In 1906, Roscoe Pound, then of the University of Nebraska College of Law, addressed the American Bar Association (ABA) on the need for reforms to limit political influences on state court judges. (7) In 1913, Pound and Albert Martin Kales were instrumental in founding the American Judicature Society. (8) In 1914, Kales published the book Unpopular Government in the United States. (9) In "Chapter XVII: Methods of Selecting and Retiring Judges," he proposed a change in the way judges were selected. (10) In the earliest days of the republic, state judges, like federal judges, were almost always appointed--usually by governors and sometimes with legislative consent. (11) There was a reaction to the system of judicial appointment because of perceived corruption and cronyism. (12) The response was a movement--apparently led by lawyers--to switch to the popular election of judges. (13) In addition to states changing to the popular election of judges--Mississippi being the first to switch in 1832--"[b]etween 1846 and 1912 every new state entering the Union embraced this scheme of selection, as did most of the previously settled states." (14)

    Kales' proposal recognized that (in his era, before the development of the administrative state) judges effectuated the plans of the executive. (15) Because "[t]he power of the state to preserve order and settle the rights of parties is subject to be invoked in one way or another, according as the judge's mind reacts and operates," the selection and retirement of judges, Kales concluded, "is of the first importance." (16) Kales noted that, while there may be communities in which "the power of selecting and retiring judges really resides in the lawyers, subject only to the approval of the electorate,"--presumably, as Kales thought it should be--in "a metropolitan district" it is the political machine (the "politocrats") that actually does the selecting. (17) Moreover, these politocrats may, at any election, withhold re-nomination. (18) Because the public in metropolitan districts cannot know all of the judges, judges will be de facto appointed. (19) Moreover, Kales asserted the electorate is "too ignorant politically to make a choice of judges." (20) In true progressive form, he states, "the determination of who are qualified for the office is unusually difficult, even when an expert in possession of all the facts makes the choice." (21) The public, he says, lacks the "knowledge required to vote intelligently." (22)

    Having concluded that in a metropolitan area "the selection of judges by the electorate is practically impossible," Kales addressed "the best method of appointment." (23) Kales concluded that appointment by the governor, because it is "conspicuous and legal," is superior to secret appointment by the "politocrats of the extra-legal government" by means of the election process. (24) However, the method he actually discussed is appointment by an elected high court or chief justice of the district. (25)

    The judicial head, Kales believed, would want the "most efficient judges" and, therefore, would select from among the most successful practitioners before the court. (26) Kales suggested:

    [A] probationary period--say three years--at the end of which time the judge must submit at a popular election to a vote on the question as to whether the place which he holds shall be declared vacant. This is not a vote which puts anyone else in the judge's place, but a vote which can at most only leave the place to be filled by the appointing power.... After surviving such a probationary period his appointment should continue for--let us say--six or nine years. At the end of that time the question might again be submitted as to whether his place should be declared vacant. (27) For the selection itself, Kales suggested "a judicial counsel composed of the chief justice and the presiding justices of the different divisions," which would "provide a service test for candidates for places on the bench." (28) The judicial council would be empowered to put on an "eligible list" twice the number of lawyers as there are judges in the division. (29) The appointing authority--the chief justice--would be required to select appointments from the eligible list. (30) Thus, the appointing authority would have a list of those who would make "satisfactory judges." (31)


    In 1940, the State of Missouri was the first to adopt a variation of Kales' proposal. (32) It did so upon an initiative petition sponsored by the recommendation of the Missouri Bar Association. (33) Laurance M. Hyde, then a judge on the Missouri Supreme Court, described the Missouri Plan:

    [S]election is made by the Governor's appointment, but this must be from a list of three names submitted to him by a Selection Commission. The Selection Commission... is composed of the Chief Justice of the Supreme Court as Chairman, three lawyers elected by the Bar, and three laymen appointed by the Governor.... The next step, after a judge has been appointed from the list submitted, is that when he has served one year, the people vote at the next general election, following such year of service, upon the question of whether or not this judge shall have a full regular term .... Thereafter, a judge given a full term must submit his declaration of desire for another term, at the expiration of his term, and be voted on by the people.... At all such elections, the judge's names are placed on a separate judicial ballot, without party designation, the only question submitted being: "Shall Judge.........., of the .......... Court, be retained in the office? Yes. No." (34) Thus, a lawyer-dominated commission, heavily influenced by the organized bar, selects three eligible candidates from which the Governor chooses one. However, it remains for the electorate potentially to reject the selection following the judge's probationary service on the bench. Although "there is every reason to expect that he would receive a favorable vote," (35) the Missouri Bar had taken steps to inform the public. (36) Note the implicit confidence that the author, himself a judge on the Missouri Supreme Court, expressed in the wisdom of lawyers in selecting judges:

    If this practice [of "informing" the voters] becomes well established so that the people will look to and follow the endorsement of the Bar, a long step will have been taken toward safeguarding the effective and beneficial operation of the plan.... The adoption of our court plan by the people demonstrated that they had great confidence in our lawyers because of the prominent part it gives them in the selection of judges. (37) The notion that lawyers know best who should be judges had its season. Between 1958, when a second state (Kansas) adopted the Missouri Plan, and 1994, nineteen states adopted some...

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