The merits of merit selection.(Twenty-Seventh Annual National Federalist Society Student Symposium)

 
  I. 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)