The politics of merit selection.

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

1. INTRODUCTION

   In this Article, I undertake an evaluation of a method of judicial selection in use in many states that is known as "merit selection." The merit system is distinctive from the other systems of judicial selection in use today in the powerful role it accords lawyers and, in particular, state bar associations. (1) Proponents of the merit system contend that it is superior to the other forms of judicial selection--elections or appointment by elected officials--because state bar associations are more likely to select judges on the basis of "merit" and less likely to select judges on the basis of "politics" than are voters or elected officials. (2) In this Article, I explain why I believe these claims are overstated.

   Although it is not always clear what proponents of merit selection mean when they use the word "politics" in this context, I take their primary claim to be that state bar associations are less inclined to examine the personal ideological preferences of judicial candidates than are voters or elected officials; i.e., state bar associations are less concerned with whether a candidate is a Republican or a Democrat, a conservative or a liberal. I am skeptical of this claim. Even if bar associations are better able to identify more intelligent or more qualified judges than are voters or public officials, it does not follow that they are less inclined to consider the political beliefs of judicial candidates. In my view, state bar associations are just as likely to be concerned--if not more concerned--with the decisional propensities of judicial candidates as are voters and elected officials. Moreover, insofar as a judge's personal ideological preferences are correlated with his or her decisions, and insofar as those preferences are often more easily observed than his or her decisional propensities, it is hard for me to believe that state bar associations accord those preferences any less weight than voters or elected officials when they select judges. In short, I am skeptical that merit selection removes politics from judicial selection. Rather, merit selection may simply move the politics of judicial selection into closer alignment with the ideological preferences of the bar.

   It is important to note that this movement might occur even if state bar associations do completely ignore the personal ideological preferences of judicial candidates. If the distribution of ideological preferences among lawyers differs from the distribution among the public, then a method of selection that does not select for ideology in the way that elections and political appointment do so may simply replicate the ideological distribution among the bar. This will move the politics of the judiciary into closer alignment with the ideological preferences of the bar and away from the preferences of the public in the same way it would if state bar associations were trying to find judges who shared their ideological preferences.

   But is the distribution of ideological preferences within the bar different from the distribution among the public? Many people believe--and there is some empirical evidence to support these beliefs--that lawyers as a group are, on average, more liberal (in the contemporary political sense--i.e., associated more closely with policy positions held by the Democratic Party) than are members of the general public. If this is true, then, for the reasons noted above, one would expect that bar associations would select judges who are more liberal than those who would have been selected by the public or their elected representatives. Although far from conclusive, I collected data on the judicial nominations in two merit states, Tennessee and Missouri, and the data is consistent with this hypothesis.

   In Part II of this Article, I explain the origins and nature of the merit systems used in the United States. In Part III, I examine the claim that merit systems remove politics from the judiciary, showing how Legal Realism casts doubt on this claim. In Part IV, I explore how the political views of the bar might differ from those of the public at large, and I ask whether the proponents of merit selection can justify a system that produces judges who reflect the ideological preferences of the bar rather than the preferences of the electorate.

2. THE ORIGINS AND NATURE OF MERIT SELECTION

   The merit system was first conceived during the Progressive Era in the early twentieth century. (3) Prior to this time, judges in America had been selected either by elected officials or by the public in elections. (4) Like other Progressive Era reforms, (5) merit selection was designed to remove government decision-making from electoral control and place it instead in the hands of "experts." (6) The "experts" identified by progressives to select judges were lawyers and, in particular, state bar associations. (7) It is therefore unsurprising that bar associations, including the largest of them all, the American Bar Association, were the primary advocates of the merit system when it was first conceived (8) and remain the primary advocates today. (9) The first state to adopt the merit system was Missouri in 1940. (10) Since then, a large number of states have adopted the system for one or more of their courts. Indeed, with respect to the highest courts in each state, which will be the focus of this Article, twenty-four states and the District of Columbia have adopted the system, making it the most prevalent system of judicial selection in use in the united States today. (11)

   Although there are differences among the merit systems that these states have adopted for their highest courts, most of the systems are similar in at least two respects. First, with regard to initial selection, in all of the systems judges are appointed to the bench by the governor from a list of names submitted by a nominating commission. (12) Second, at some point after appointment in most of the systems, judges must come before the public in an uncontested referendum through which voters can remove the judges from the bench. (13) As explained below, relative to the other methods of selection in use today--elections and appointment by elected officials--both of these aspects of merit systems transfer power over judicial selection from the electorate to the bar.

   First, with respect to initial selection, merit systems transfer power to the bar through the composition of the commission that selects the nominees from which the governor must make the appointment. In the vast majority of merit systems, lawyers are required by law to be well represented on these commissions. For example, in Tennessee (at least until recent changes to the system take effect), (14) over 80% of the selection commission--fourteen of seventeen members--must be lawyers. (15) Although no state requires lawyers to comprise a greater portion of its commission than does Tennessee, as Table 1 indicates, many other merit states are not far behind; the vast majority of merit states require at least half of the members of the commission to be lawyers or judges.

   It is important to note that the lawyers who serve on merit commissions are not just any lawyers; they are usually lawyers selected by bar associations. That is, they are lawyers selected by the legal profession. For example, in Tennessee (again, until recent changes take effect), twelve of the fourteen lawyer members on the commission can come only from individuals nominated by five special bar associations. (16) As Professor Stephen Ware chronicled in a recent article, Tennessee is not alone in privileging the bar in this way: nearly all merit-selection states delegate to bar associations the authority to fill some or all of the lawyer seats on the commissions, either by directly selecting members for the commission or by controlling the list of names from which elected officials must select members. (17) Table 2 shows the percentage of lawyer commission members in each merit state under either the direct or indirect control of state bar associations.

   The retention device in merit systems likewise transfers power from the electorate to bar associations. Unlike states that rely on contested elections or reappointment by elected officials to decide whether judges should remain on the bench, states with merit systems usually rely on an innovation called a retention referendum. (20) Although proponents of merit systems often describe the retention referendum as a source of democratic accountability,21 scholars have questioned this claim. (22) To begin with, scholars have noted that the design of retention referenda leaves voters with very little information about judicial candidates: without another candidate in the race, there is no one with an interest in providing information to the public about the incumbent. (23) Moreover, retention referenda are conducted without partisan affiliation on the ballot, and political trademarks are often the most important pieces of information relied upon by voters. (24) Finally, because voters have no idea who will replace an incumbent if they vote against retention, some commentators believe that risk aversion on the part of voters makes them reluctant to vote against an incumbent; in other words, "the devil you know is preferable to the devil you don't." (25)

   Political scientists often rely on incumbent loss rates as a measure of how successfully elections promote public control of government officials, (26) and, in light of the design features of retention referenda, it is not entirely surprising that, at least by this measure, they pale in comparison to contested elections. Incumbent high-court judges are returned to the bench 99% of the time across the country when they run in retention referenda. (27) This is in sharp contrast with the retention rates of incumbent judges in states that use contested elections. one comprehensive study of state supreme court races between 1980 and 2000...