The Bench, the Bar, and Everyone Else: Some Questions about State Judicial Selection

Article excerpt

I am honored to be a part of this conference. I very much appreciate the hospitality of the law school, particularly the efforts of the Missouri Law Review staff. It has been a wonderful event. A wide range of views has been presented here, and I think that is a great credit to the people who organized the program.

Just briefly, I am from Alabama, and I am not here to tell you what you should do in Missouri. That probably comes as a big relief. I became interested in this subject about fifteen years ago because of what was happening in my home state. It is a long story. One short version of it is that the award of punitive damages, in tort and even some contract litigation, had come off the rails to the point that Alabama was routinely castigated in Time magazine and elsewhere as "tort hell." (1) The voters noticed this and voted for a radical change in the composition of the Supreme Court of Alabama. I viewed this as a positive development. (2)

Both during and after this change in Alabama's court system, numerous observers proposed that the state reform its judicial selection mechanism along the lines of the "Missouri Plan." I thought that the coincidence of the two events--the voter uprising and the campaign for reform--was telling. As this debate unfolded, I began to look at the substantial political science literature on state judicial selection. (3) Indeed, most of my contribution to the debate over state judicial selection has been simply to call attention to the political scientists' findings, including the point that, if you compare the judiciaries of elective and Missouri Plan states, you do not find any substantial evidence that one set of states has better or more qualified judges than the other. (4) This fact suggests that participants in this debate tend to oversell their positions. I am going to try to avoid doing that. Instead, my primary goal is to raise a couple of questions based on the panelists' papers. I am going to be brief and take the papers seriatim.

Professor Stephen Ware's taxonomy of selection systems should prove helpful in thinking through the competing alternatives. (5) In particular, it would improve the clarity of the debate over judicial selection if his distinction between "hard" (more lawyer-dominated) and "soft" (less so) varieties of the Missouri Plan were to be widely adopted. Indeed, Professor Ware's paper invites us to think more carefully about the nature of lawyer domination of judicial nominating commissions--specifically, the extent to which lawyers call the shots, either in terms of numbers or because their expertise can generally be expected to allow them to control the agenda and set the tone for the lay members.

There are two principal reasons for worrying about an excess of lawyerly influence on the nominating commissions: the ideology and self-interest of lawyers. As to the first, if it is true that lawyers--as a group--tend to gravitate toward an ideological position to the left of the public at large, then a lawyer-dominated commission obviously entails the risk that it will diverge significantly from public attitudes. This point was discussed extensively in the presentations at the symposium and in the papers included in this publication, (6) and I do not have anything to add to that discussion. (7)

The second reason to worry about lawyer domination of nominating commissions is that lawyers as a group have an obvious personal interest in the level of lawyer incomes, which in turn is a function of the importance of law in American society. Over the last seventy years or so, both the number of lawyers and lawyers' incomes have increased dramatically, as law has become a more important feature of our lives. As noted Stanford legal historian Lawrence Friedman put it in his 1994 book, Total Justice, "There has developed in this country a general expectation of justice, and a general expectation of recompense for injuries and loss. …