Given the dispute in this country about the proper role of judges and how the people perceive what judges are doing, any sophisticated observer must conclude that judicial selection in the United States today is "political." (1) People, whether or not they are educated, sophisticated, or engaged in a legal career, are largely divided into two schools of thought about what judges ought to do. This dispute has at its heart one question: What is the proper scope of a judge's authority?
There is a traditional approach to judging that is advanced by conservatives and judges in the Scalia and Bork model. According to this traditional approach, judges are to interpret constitutions and statutes by attempting to discern the original understanding of the drafters or ratifiers and judges are then to follow that original understanding. (2) There is very little latitude in this approach to judicial interpretation. The judge's role is important but constrained. (3)
The other approach, advanced by liberals, including almost the entire legal academy, supports a more aggressive role for judges. This model--the Douglas-Brennan-Breyer model--sees judges as possessing a greater capacity to make policy in politically contentious areas such as the death penalty, affirmative action, abortion, religion in the public square, sexual liberty, same-sex marriage, and so on through vehicles such as living constitutions, unenumerated rights, and the infamous emanations and penumbras. (4)
The point not to be missed, then, is that a split exists on the issue of the role of a judge. Moreover, few would doubt that this is an important public policy issue, as the titanic battles of the last twenty years in the United States Senate over the confirmation of federal judges demonstrate. (5) Those battles inescapably turn on the potential judge's position in this debate. (6)
Everyone wants judges who agree with them on the proper role of a judge. This reality cannot be wished away. Any effort to construct a judicial-selection system that acts as though this is not the current state of affairs ignores the proverbial elephant in the room. Yet the merit-selection approach--which asserts that all a state has to do is find the best-qualified lawyers and make them judges (7)--asks the states to operate as though there is no elephant. Indeed, that is the fatal flaw of a merit-selection approach.
I am not in favor of merit selection, even though it has the benefit of an appealing title. I am, with certain misgivings, an advocate for the popular election of judges, with the elections being full of robust debate as anticipated by the Supreme Court decision in Republican Party of Minnesota v. White. (8) There are certainly problems with the election of judges, as there are problems with all elections. These include voter ignorance and voter misdirection by clever partisans. (9) Although the electoral system has these problems, at least it acknowledges this reality. Rather than having elites make the decision while operating in a "good government" fog--which is also a largely political decision-judicial elections give the choice to ordinary, rank-and-file voters.
It is common in the modern age to condescend to regular folks, but this attitude should give us pause because the notion that citizens can make wise choices is unquestionably at the very heart of our system of government. (10) In considering this recent bias against elections, it is useful to recall the famous quip by William F. Buckley, Jr., who said he would rather entrust the government of the United States to the first 2000 people listed in the Boston telephone directory than to the faculty of Harvard University. (11) There is wisdom in that quip.
Edmund Burke, the eighteenth-century English statesman and political philosopher, made one of his many penetrating and arresting observations when he argued for something akin to popular government. …