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Judicial selection: additional thoughts

I'd like to expand a bit more on the thoughts I briefly shared with Walter over email, and explicate my position more fully. In short: I agree that elections aren't good ways to pick judges, but let's be very wary of the push to replace them with "merit selection."

To begin with, I agree strongly with Walter and Michael Krauss that in a vacuum -- if we were adopting a judicial system from scratch -- we'd never want to have the election of judges. The courts' function is interpreting the rule of law and safeguarding against oppression by the other branches of government, which control the sword and the purse. Those other branches are accountable to the people -- itself a critical safeguard of liberty -- but the passions of the moment might well undo the Rule of Law upon which liberty depends; and the majority of course might oppress the minority. The argument is laid out clearly by Alexander Hamilton in Federalist 78:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. . . .

[I]ndependence of the judges is . . . requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. . . .

Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.

The ultimate clause is of course the operative one for our purpose, and it applies with no less force to argue against "retention" elections that submit judges to the people for re-confirmation than to the election of judges outright.

I do think Hamilton gets some things wrong. In Federalist 79, he too easily dismisses New York's age-sixty retirement rule; "the imaginary danger of a superannuated bench" would not seem to me to be wholly imaginary, at least for the U.S. Supreme Court (judges on lower federal courts are moved to senior status). The lifetime appointment of judges, logically perceived as a precondition for independence, has led to two unfortunate tendencies in modern times: presidents have an incentive to appoint young Supreme Court justices to maximize their power, and justices have an incentive to stay on longer than they otherwise might to hold onto that power.

The pecuniary motive is not, of course, the driver for today's justices to stay on well into their upper eighties, notwithstanding cancer and the like. Unlike in Hamilton's time, we are no longer "a republic[] where fortunes are not affluent, and pensions not expedient." Similarly, unlike the world Hamilton described in Federalist 78, it is no longer true that there are "but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges." We could easily have long-term, nonrenewable Supreme Court appointments, and -- as we do -- maintain justices financially for life; today, upon retirement, justices do not lose income and continue to be granted staffs and clerks and the opportunity to sit on lower courts. Judges might also choose to go into (or return) to academia, or go into private practice, like former judges Luttig and Mukasey. So, I don't think that "lifetime appointment" is essential to judicial independence, notwithstanding Hamilton's powerful arguments to the contrary in the late 18th century.

What does remain true from Hamilton's time, I think, is that if we are to go to "the people" to select (or retain) our judges, "there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws." Simply put, if the people have the ability to keep judges in power, the judges will be strongly tempted to avoid taking principled but unpopular stands. Criminal defendants and civil liabilities would be the casualties, as constitutional and procedural niceties are not well conveyed to a non-legal populace in 30-second soundbites. (Of course, voter ignorance critiques can be made of the democratic process more generally; but the logical consequent of such arguments is indeed the case for limited government itself -- of which the independent judiciary is, at least in principle, a key guarantor.)

That elections are not the preferred means of selecting judges does not imply that "merit selection" is a good alternative, or even preferable to elections. Almost by definition, merit "screening" committees would be composed of select groups of lawyers who have the self-interests of the legal profession at heart. The results would be predictable. Consider what has been observed in the American Bar Association's evaluations of federal judicial appointments, in which Republican nominees receive substantial negative bias in the evaluation process. Richard Posner and Frank Easterbrook, the two most-cited judges on the federal bench, both received "Qualified/Not Qualified" ratings from the ABA, below 89 percent of all federal judicial nominees, when they were nominated by President Reagan. The ABA evaluation process at the federal level should make anyone pause before embracing merit selection of judges at any level.

When it comes to the "Missouri Plan" and like state merit screening panels, our friend Ted Frank made this excellent observation in last week's NewTalk.org discussion of judicial activism:

Robert Joffe suggests that the problem with judges is that they are largely selected through "elections or political appointments, rather than true merit selection." I query what he means by "true merit selection." Missouri ostensibly has a "merit selection" process that is often held up as a model, but one sees no indication that Missouri judges are superior to other judges. Indeed, the Missouri merit selection process has been notoriously captured by the special interest of the plaintiffs' bar.

On the Missouri Plan point, Ted linked to the following Federalist Society report, which notes in part:

The classic study of the first 25 years of merit selection in Missouri is a book by Richard A. Watson & Rondal G. Downing, The Politics of the Bench and the Bar (1969). A recent textbook summarizes their findings as follows:
[I]n the process of selecting lawyer members of the nominating commissions, attorneys tended to split into two groups [plaintiffs' lawyers and defense lawyers], much in the manner of a traditional two-party system. Far from bringing more professional values to bear on the selection process, the attorneys tended to focus on more tangible selection criteria, in particular the socioeconomic interests of their clients . . . . As it turned out, these competing plaintiff and defendant bar interests were about equally successful in obtaining commission seats, the result being a rather well-balanced two-party competition in the Kansas City and St. Louis bars.

Thus, far from taking judicial selection out of politics, the Missouri Plan actually tended to replace politics, wherein the judge faces popular election (or selection by a popularly elected official), with a somewhat subterranean process of bar and bench politics, in which there is little popular control.

It appears that the situation in Missouri has deteriorated even further since Watson and Downidle wrote in 1969. In a recent Rule of Law column in the Wall Street Journal, Elliot Kaplan opined that Missouri is creeping up on our famous brethren Alabama and Texas in the adoption of inefficient tort law. According to this Kansas City lawyer, Missouri currently suffers from runaway jury verdicts, a judiciary afraid to make necessary reforms, and a legislature and state government controlled by the plaintiffs' bar." Kaplan notes the increase in large damage awards by Missouri juries, explaining that in 1995 four of the six largest jury verdicts in the country were awarded in Missouri.

I would note that it's of course unfair to blame litigation problems in Missouri exclusively or even principally on its merit selection process; and the Show-Me State does not by any stretch have the worst judiciary in the Union. Still, it's hardly comforting that defense lawyers on the merit screening panels are the bulwark against infringements against their clients' interests, let alone the Rule of Law more generally. As my mentor Judge Ralph Winter has noted many times, defense lawyers have the same interests in the status quo for litigation as plaintiffs' lawyers. The more the law tilts in favor of unpredictable, expensive litigation, the higher are defense lawyer's hourly fees.

While it might theoretically be possible to construct a merit system that avoids the problem of lack of transparency and "lawyer capture," it's highly unlikely -- particularly inasmuch as the reforms are being pushed by highly partisan, lawyer-friendly interest groups backed by Soros, as I noted in my email to Walter. So even if we're not fans of the election of state judges, we might plausibly resist "reform" efforts headed by Soros and other leftist advocates to replace such elections with "merit selection" processes. Like other forms of "regime change," with judicial elections it might be best to let sleeping dogs lie if we don't know pretty clearly what's going to come out on the other end.

In sum, neither election nor merit selection is a very good way to select judges. The best form of judicial selection probably approximates the federal system -- ideally with rotating long-term appointments and lifetime protected pensions (in good behavior) rather than true life appointments. The value of factions here comes into play as a force for proper judicial training and temperament, as legislative confirmation could weed out the most extreme nominees, as well as those deemed to be less than qualified or political cronies (think Harriet Miers). There are problems even with this system, as I may point out in a future post, but as long as appointments are sufficiently long so as to insulate judicial shifts from the short-term swings of the political process, on balance the Federalist framers -- unsurprisingly -- got it about right.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.