The Missouri Law Review's title for this symposium rightly recognizes the distinction between judicial selection and judicial retention. (1) We should distinguish the process that initially selects a judge from the process that determines whether to retain that judge on the court. Judicial selection and judicial retention raise different issues. (2) In this paper, I primarily focus on selection. I summarize the fifty states' methods of supreme court selection and place them on a continuum from the most populist to the most elitist. (3) Doing so reveals that the Missouri Plan is the most elitist (and least democratic) of the three common methods of selecting judges in the United States. After highlighting this troubling characteristic of the Missouri Plan's process of selecting judges, I turn briefly to the retention of judges and caution against the dangers posed by subjecting sitting judges to elections, including the retention elections of the Missouri Plan. I conclude with support for a system that, in initially selecting judges, avoids the undemocratic elitism of the Missouri Plan and, in retaining judges, avoids the dangers (populist and otherwise) of judicial elections.
I. SUPREME COURT SELECTION IN THE FIFTY STATES
A. Democratic Selection Methods
While some states have individual quirks, three basic methods of supreme court selection prevail around the country: contestable elections, senate confirmation and the Missouri Plan. (4) The most common method, used by twenty-two states, is the contestable election. (5) Allowing two or more candidates to run for a seat on the supreme court is the most populist of the three methods because it puts power directly in the hands of the people, the voters. (6) Importantly, members of the bar get no special powers. "[A] lawyer's vote is worth no more than any other citizen's vote." (7)
The second common method of selecting state supreme court justices (8) is the one used to select federal judges: executive nomination followed by senate confirmation. (9) in twelve states, the governor nominates state supreme court justices, but the governor's nominee does not join the court unless confirmed by the state senate or similar popularly elected body. (10)
Senate confirmation is a less populist method of judicial selection than contestable elections because senate confirmation is less directly dependent on the "wisdom ... of the common people." (11) While contestable judicial elections "embody the passion for direct democracy prevalent in the Jacksonian era[,] ... senate confirmation exemplifies the republicanism of our Nation's Founders." (12) Senate confirmation is part of the Founders' "system of indirect democracy in which the structure of government mediates and cools the momentary passions of popular majorities." (13)
Although not as populist as the direct democracy of contestable judicial elections, senate confirmation does make judicial selection indirectly accountable to the people because, at the federal level, the people elect their senators (14) and, through the Electoral College, the President. (15) Similarly, in states that use this method of judicial selection, the people elect their governors and state senators.
In other words, senate confirmation is--like contestable elections--fundamentally democratic, (16) although it is less populist than contestable elections. Senate confirmation is democratic because it facilitates the "rule of the majority" (17) by adhering to the principle of one-person-one-vote. At the federal level, one-person-one-vote is tempered by federalism, as both the U.S. Senate and Electoral College give disproportionate weight to voters in low-population states. (18) But at the state level nothing similarly tempers the democratic nature of senate confirmation. in those states in which the governor may appoint to the court whomever he or she wants, (19) subject only to confirmation by a popularly elected body such as the state senate, judicial selection is laudably democratic because governors and state senators are elected under the principle of one-person-one-vote. in these elections, members of the bar get no special powers. Again, a lawyer's vote is worth no more than any other citizen's vote.
B. Departures from Democracy: Varying Levels of Elitism in Judicial Selection
Some senate-confirmation states, however, have supreme court selection processes that do give special powers to members of the bar. As the bar is an elite segment of society, (20) states that give lawyers more power than their fellow citizens are rightly described as elitist. indeed the rationale for giving lawyers special powers over judicial selection--lawyers are better than their fellow citizens at identifying who will be a good judge (21)--is openly elitist. (22) A mixture of this elitism (special powers for lawyers) and democracy (senate confirmation of gubernatorial nominees) characterizes the states discussed in the following four paragraphs.
While the President may nominate anyone to the U.S. Supreme Court, in some senate-confirmation states the governor is restricted in whom he or she may nominate to the state supreme court. For example, New York restricts whom the governor may nominate to its highest court, the court of appeals. (23) The New York Constitution provides that "[t]he governor shall appoint, with the advice and consent of the senate, from among those recommended by the judicial nominating commission." (24) The judicial nominating commission in New York consists of twelve members: four appointed by the governor, four by the chief judge of the court of appeals, and four by leaders of the legislature. (25) of these twelve members, at least four must be members of the New York bar. (26) This special quota for lawyers is the only one in New York; no other occupational group (or other group) is guaranteed representation on the state's judicial nominating commission. (27) The "lawyers' quota" guarantees that lawyers, compared to their percentage of the state's population, will be over-represented on the commission. (28) As a result, New York gives the members of its bar disproportionate power in the selection of the state's high court judges. in judicial selection, New York gives its lawyers a special power not given to other citizens.
New York is not alone. Three other states with senate confirmation of supreme court justices also (1) require their governors to nominate only someone recommended by a nominating commission and (2) give lawyers a quota on that commission. (29) By introducing these two factors, these states make judicial selection less democratic and more elitist than it would otherwise be. (30) in these states (including New York), however, the movement from democracy to elitism is relatively small because all members of the commission are appointed by popularly elected officials or by judges who have been nominated and confirmed by popularly elected officials. in other words, the populace retains ultimate control over appointments to the judicial nominating commission. The democratic principle of one-person-one-vote is followed, albeit indirectly.
By contrast, two other senate-confirmation states go further down the road from democracy to elitism by allowing the bar to select some members of the nominating commission. (31) in these states, not all of the commissioners--who exercise the important governmental power of restricting the governor's choice of judicial nominees--are selected under the democratic principle of one-person-one-vote. Rather, some of the commissioners are selected by a small, elite group: the bar. (32)
This is really quite startling. Where else in our federal or state governments are public officials selected in such an undemocratic way? Where else do members of a particular occupation have, by law, greater power than their fellow citizens to select public officials? When this sort of favoritism for an occupational group other than lawyers has been attempted, it has, in at least one instance, been found unconstitutional. (33)
C. The Most Elitism: The Missouri Plan
While the states discussed in the previous section have departed from the democratic principle of one-person-one-vote (and from the U.S. Constitution's model) to give special powers to the bar, they have nevertheless retained senate confirmation of the governor's nominees for the supreme court. in other words, they have introduced an element of elitism to the early part of the judicial selection process (whom can the governor pick?), while keeping the later part of the process (will the governor's pick be confirmed?) in the hands of democratically elected officials. By contrast, the third common method of supreme court selection, the "Missouri Plan," (34) has the early-stage elitism without the later-stage democracy. (35) The Missouri Plan gives disproportionate power to the bar in selecting the nominating commission, while eliminating the requirement that the governor's pick be confirmed by the senate or similar popularly elected body. (36)
The Missouri Plan states' lack of confirmation by the senate (or other popularly elected body) is significant. in senate-confirmation states, if the senate refuses to confirm any of the nominating commission's first group of nominees then the commission must propose one or more additional nominees to get someone appointed to the court. By contrast, in Missouri Plan states, if the governor refuses to appoint any of the commission's first group of nominees then one of those nominees joins the court anyhow. (37) So the Missouri Plan gives the commission more power to force one of its favorites on the democratically elected officials. The commission is weaker, relative to democratically elected officials, in senate-confirmation states. Thus, Missouri Plan states are less democratic (and more elitist) than senate-confirmation states.
This important distinction between Missouri Plan states and senate-confirmation states is obscured when all judicial selection methods are reduced to two types: elective and appointive. in fact, the choice is not just between electing judges and appointing them. As this article has shown, many appointive systems exist, and they vary widely in the extent to which they depart from democratic principles to give special powers to the bar. Clarity requires distinguishing Missouri Plan states from senate-confirmation states. Unfortunately, prominent bar groups use the term "merit selection" to describe all of these states, so long as they use a nominating commission of any sort. (38) This term, "merit selection," is "propagandistic" (39) and obscures important distinctions among appointive systems. Accordingly, I suggest that people reject the term "merit selection" in favor of the more-neutral "Missouri Plan" and that people reserve the term "Missouri Plan" for states that lack confirmation by the senate or similar popularly elected body.
With this terminology established, we can then make a further distinction, a distinction among Missouri Plan states. These states can be placed into two categories, which I call "soft" Missouri Plan and "hard" Missouri Plan. (See Table 1 infra page 775.) The four soft Missouri Plan states have a lawyers' quota on the nominating commission, but all members of the commission are selected by a process that includes popularly elected officials. (40) in these states--Arizona, Colorado, Florida and Tennessee--the bar's role in selecting members of the commission is either non-existent or limited to "merely suggesting names for ... the commission and those suggested do not become commissioners unless approved by the governor and/or legislature." (41) So the elitism of the lawyers' quota on the commission is balanced to some extent by the role of popularly elected officials in appointing the …