The merits of merit selection.

• Author: Phillips, Thomas R.
• Position: Twenty-Seventh Annual National Federalist Society Student Symposium

1. TRANSITIONS IN JUDICIAL SELECTION METHODS A. From Appointment to Election B. From Partisan to Non-Partisan Elections C. From Non-Partisan Elections to Merit Selection D. Alternatives to Merit Section II. THE CHALLENGE TO JUDICIAL INDEPENDENCE FROM JUDICIAL ELECTION CHANGES A. The Explosion of Large Campaign Contributions B. The Emergence of Special Interest Group Participation C. The Retreat of State Regulation of Judicial Campaign Speech 1. The Holding of Republican Party of Minnesota v. White 2. State Codes of Judicial Conduct 3. The Post-White World a. Promises and Commitments by Judicial Candidates b. Commit Clause c. Partisan Activity by Judicial Candidates d. Solicitation Clause e. Recusal D. The Cumulative Effect of New Developments III. AN OLD ANSWER SOLVES NEW PROBLEMS: ADVANTAGES OF MERIT SELECTION OVER CONTESTED JUDICIAL ELECTIONS A. Turnover and Recruitment B. Campaign Contributions C. Enhanced Accountability D. Merit Selection's Proven Record of Success E. Failure of Less Ambitious Reforms F. Philosophical Objections to the Popular Election of Judges America has almost as many different ways of selecting state judges as it has states. (1) Over the past two centuries, most states have coalesced around fairly uniform requirements, term lengths, and election dates for executive and legislative officials. (2) But no "consensus" method of choosing judges has developed; indeed, each decade of the last century has brought more disparity between the States, not less. (3)

   In many states, the debate rages as fiercely as ever over whether judges should be "appointed" or "elected," identified by party affiliation or prohibited from any partisan activity, subject to a contested race for re-election or merely an up-or-down "retention" referendum, bound by the same ethical and electoral rules as other public officials, or treated as wholly distinct from the political branches. Even at the federal level, proposals for fixed judicial terms are periodically suggested, especially for the Supreme Court, (4) and popular election of the federal judiciary has been mooted on occasion since Jefferson. (5)

   Because an equal and independent judiciary was not merely the great original contribution of American government, but also has been that aspect of our system most frequently emulated around the world, (6) one would think that in America, if anywhere, a consensus on how to choose judges would have emerged. Why has it not?

   One possibility is that, although the American people and the American States all support an overarching commitment to an equal and independent judiciary, they disagree on what that commitment really means. No doubt, because of the power judges hold to change public policy through both constitutional and common-law rulings, their actions have periodically provoked marked controversy. In current parlance, this debate centers around whether justice is best served when courts seek a "just" result regardless of literal text or controlling precedent, or when judges merely apply the law as they find it, regardless of their personal preferences or their intuition regarding contemporary popular sentiment. For example, in the final national television debate between John McCain and Barack Obama during the 2008 presidential campaign, Senator McCain pledged to appoint judges with "a history of strict adherence to the Constitution" and "not legislating from the bench," while then-Senator Obama responded that "the most important thing in any judge is their capacity to provide fairness and justice to the American people." By way of example, he explained that "the kind of judge I want" is "that if a woman is out there ... trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will." (7)

   Indeed, the debate over the proper nature of the judicial process, which might be little more than an arcane professional schism in some countries, is an integral part of public political discourse in America. A 2008 poll showed a remarkable degree of agreement between the respective candidates and their supporters on judicial philosophy. According to a Rasmussen Poll released September 5, 2008, "[w]hile 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama's supporters agree." (8) Conversely, "[j]ust 11% of McCain supporters say judges should rule based on the judge's sense of fairness, while nearly half (49%) of Obama's supporters agree." (9) Indeed, one of the principal reasons for creating the Federalist Society a generation ago was to elevate and sharpen this debate among the American bar, particularly among the advocates of judicial restraint. (10) And versions of this debate occur every year in state judicial elections and confirmation battles, particularly for seats on state supreme courts.

   But, as important as this issue is, in the past scholars have not been able to detect any correlation between a particular selection system and a particular judicial philosophy. No doubt, a snapshot of a particular time or place might reveal instances where "most appointed judges are liberal" or "elected judges are activist," but these isolated observations have not, taken as a whole, produced a consistent pattern. (11)

   Nonetheless, a distinct pattern may now be emerging. Some recent studies suggest that contested elections produce judges with less institutional independence and more result-oriented jurisprudence. (12) Recent developments in the conduct of judicial elections might produce more pronounced differences in judicial behavior based on the way judges obtain and retain their benches.

1. TRANSITIONS IN JUDICIAL SELECTION METHODS

   The wide disparity in judicial selection systems can be explained largely by history. The type of system a state has depends largely on the date it adopted that system. Each successive wave of judicial selection methods has arisen in response to popular clamour for more professional, less political judges.

   1. From Appointment to Election

      In the original states, judges were chosen in one of two ways: by the executive--appointment either by the governor himself or the governor's council--or by the legislature. (13) None of the original states seriously considered popular judicial elections, although isolated jurisdictions did experiment with elective judges at some levels. (14)

      Between 1846 and the outbreak of the Civil War, however, more than two-thirds of the states moved to an elective judiciary at all levels of courts. (15) What caused such a rapid change? There are at least three reasonable explanations.

      First, judicial decisions favoring landlords and creditors in the wake of the 1819 and 1837 Panics caused outrage in many states and structural alterations in some. (16) Popular elections were perhaps a delayed reaction to these unpopular rulings, although little in constitutional convention debates or other historical records suggests such a relationship.

      Second, the watchword of Jacksonian Democracy, "Let the People Rule," (17) led to a dramatic expansion of suffrage (18) and a marked increase in the variety of officials chosen directly by the voters. For example, in addition to judicial elections, many states and municipalities abandoned a cabinet type of executive government in favor of individually elected department heads. (19) As one exasperated delegate to the Kentucky constitutional convention complained, "We have provided for the popular election of every public officer save the dog catcher, and if the dogs could vote, we should have that as well." (20) That the movement started with the New York constitutional convention of 1846, dominated by Jacksonian acolytes, lends credence to this theory. (21) If true, the change was not so much a philosophical reaction to particular judges or particular decisions as it was a logical result of an underlying philosophy of government.

      A third reason, emphasized by some scholars as the most decisive, was a pervasive belief by leading lawyers that both governors and legislators had degraded the bench by appointing partisan hacks and political cronies. (22) Under this theory, political reformers and legal elites combined to elevate the independence, integrity, and importance of the judiciary by eliminating their dependence on the good graces of the political branches. Enhanced public accountability, if a factor at all, was little more than an incidental by-product. (23)

   2. From Partisan to Non-Partisan Elections

      Popular elections seem to have worked well at first. Because each state had only a handful of judges, voters were capable of evaluating all the candidates, often from personal knowledge. Running for office required little preparation or even premeditation: There were no filing fees or deadlines, and no official ballots. (24) Campaigning was almost as simple--at most, it involved penning a few letters to the editor and "treating" thirsty voters to adult beverages. (25)

      Population growth, changes in electoral processes, and the rise of party organizations soon rendered the old "friends and neighbors" system of high-salience judicial elections obsolete. In urban centers, voters chose multiple judges from among candidates they did not know. Detailed election regulations increased the length and expense of campaigns. And political parties began endorsing and even selecting judicial candidates. (26) Partisanship and anonymity caused the defeat of several renowned jurists in the late nineteenth century, most notably Thomas Cooley in Michigan. (27) By the end of the nineteenth century, a popular outcry arose against the bench being populated by--deja vu all over again--partisan hacks and political cronies. This sentiment was most memorably captured in Roscoe Pound's famous warning to the 1906 meeting of the American Bar Association that "[p]utting courts into politics, and compelling judges to become politicians, in many...