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Judicial elections: some reactions

My post this morning arguing that prominent business advocates are wrong to crusade for direct election of state judges has stirred up considerable discussion.

In an email, PoL contributor and George Mason law professor Michael Krauss writes to say:

I find the refusal to understand the difference between policy (the domain of legislatures) and principle (the domain of restrained judges) amazing. Electing judges assumes they are policy makers, yet that is the entire problem. Judges should never be elected.

At Volokh Conspiracy, University of Minnesota law professor Dale Carpenter summarizes my argument but is not sure that "one system rather than another will systematically favor or disfavor any particular set of interests, business or otherwise"; similarly from Hans Bader of CEI in the comments section there.

Two blogs contribute further evidence toward my argument that elected judiciaries account for more than their share of anti-business legal environments. From Missouri, the Show-Me Institute's David Stokes, at Show-Me Daily, cites southern Illinois as another example of a locality "in which elected judges and huge tort verdicts coincide". At Justice at Stake's Gavel Grab, also mentioned in my original post, Bert Brandenburg adds:

A 2007 Zogby poll [of] business executives shows that 71% of them support merit selection and retention elections. ... The U.S. Chamber of Commerce's survey of corporate counsel shows that of the 20 states ranked as having the best legal climate for business, only two elect their high courts.

Another reader, who asked not to be named, wished I had done more to distinguish the various modes of non-elective appointment of judges at the state level. In particular, he noted that the "federal" model (governor nominates, state legislature confirms) might work quite differently from the "Missouri Plan" model of statutorily established screening panels, which (he pointed out) could easily vest power over judicial appointments in the hands of a self-perpetuating bar establishment.

Christian Schneider at Wisconsin Policy Research Institute notes a piece he did this spring generally supportive of elections, based on his state's experience, as well as a followup.

My Manhattan Institute colleague (and PoL managing editor) Jim Copland emails to say:

I do think that the fear re: Soros et al. as the drivers for the merit selection movement is warranted. To the extent that those folks can drive the debate and control the state legislatures in achieving an overhaul of judicial selection, they can work to defeat transparency in the process and enable trial lawyer capture of the process. Conservative legislatures aren't likely to take away the people's votes for judges (no matter how warranted); leftists might well be able to, but if they have sufficient clout to make such a maneuver, they are unlikely to exercise restraint in constructing the new system.

Finally, for readers here who would like to add their own views, I briefly linked and summarized the piece at Overlawyered, which (unlike Point of Law) has comments.

4:45 p.m.: Strongly disagreeing with my post is Dan Pero of American Courthouse, who has been one of the most prominent voices for judicial election. Like the reader cited above, he chides me for not distinguishing between the alternatives to election. A relevant excerpt:

Walter praises the federal system for selecting judges, but he makes no distinction between that system and "merit selection," and most dramatically, even leaves the impression that "merit selection" is a close approximation of the federal system. It isn't. Imagine if it were: the American Bar Association and the American Trial Lawyer Association would serve up a list of U.S. Supreme Court nominees from which the president would choose.

Under "merit selection," judges are chosen by a small, elite commission, which then passes a list of approved candidates on to the governor, who must pick from that restricted list. These commissioners in whom we entrust control over 1/3rd of our state governments are unelected and unaccountable. The judges selected under such a system are not accountable to the governor that appointed them and are not accountable to the people in any way, but are only accountable to a handful of commissioners that selected them--in Missouri's case, just seven people.

Proponents of so-called "merit selection" are not advocating a federal-style judicial selection process at the state level. The goal for George Soros, Justice at Stake, Judges On Merit and all of the other groups Soros is funding is to create judicial Star Chambers: move judicial selection behind closed doors, out of the control of any political leader answerable to the public. They are spending tens of millions of dollars to achieve this goal. ...

"Merit selection" proponents claim they want to take unseemly politics out of judicial selection. Baloney. The politics just go behind closed doors...

Whole thing here.

5:30 p.m.: And if you haven't seen it, Jim Copland has now posted a longer outline of his views on the subject.

Friday 9:30 a.m.: And now Ted Frank as well, Carter Wood @ NAM "Shop Floor", and more from Dan Pero at American Courthouse.

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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.