May Lawyers Be Given the Power to Elect Those Who Choose Our Judges? "Merit Selection" and Constitutional Law

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INTRODUCTION

Imagine that Congress enacted a law under which the nation's bank presidents elect three people to serve as candidates for Secretary of the Treasury, and the President is required to appoint one of these candidates. Or suppose that a state required its governor to choose the chief of the state police from a slate of three candidates elected by the state troopers.

Most people would have an immediate gut reaction to these hypotheticals: "That cannot be right." This response has a sound basis in self-evident principles of political economy. The Secretary of the Treasury has a great deal of discretionary authority over the regulation of banks. Allowing the presidents of these institutions to elect the candidates for Secretary would create a blatant conflict of interest. Similarly, the head of the police force is the supervisor of the troopers, so they would have a conflict of interest in deciding who could be their boss. (1)

Supporters of merit selection might point out that bank presidents and state troopers have a lot of information, unavailable to the general public, about the qualifications of applicants to serve as Secretary of the Treasury and head of the police force, respectively. This is certainly true, but it is equally certain that these groups would have overwhelming incentives to use that information to serve their own private interests. The general public and their elected representatives may have less information about the qualifications of candidates for these public offices, but they are also less prone to undervalue the public interest.

Accordingly, those with strong private interests in appointments to public office are generally left free to share their information and preferences with the public and with appointing officials, and even to throw all their political weight behind their preferred candidates. But that freedom to influence appointments is a very long way from giving special-interest groups the legal power to choose the nominees.

The conflicts between the public interest and the private interests of those who control political power is one of the central problems that the republican form of government is meant to address. As James Madison memorably explained:

   It is essential to [a republican] government that it be derived
   from the great body of the society, not from an inconsiderable
   proportion or a favored class of it; otherwise a handful of
   tyrannical nobles, exercising their oppressions by a delegation of
   their powers, might aspire to the rank of republicans, and claim
   for their government the honorable title of republic. It is
   sufficient for such a government that the persons administering it
   be appointed, either directly or indirectly, by the people; and
   that they hold their appointments by either of the tenures just
   specified [i.e., during pleasure, for a limited period, or during
   good behavior]; otherwise every government in the United States, as
   well as every other popular government that has been or can be well
   organized or well executed, would be degraded from the republican
   character. (2)

The U.S. Constitution scrupulously respects the principle that Madison articulated, and my hypothetical constraint on the President's discretion to choose the Secretary of the Treasury would violate the Appointments Clause. (3) But what about the state police hypothetical? Here the law is not quite as clear, and the example is not quite so hypothetical.

Many states choose judges under a "merit selection" system, often referred to as the Missouri Plan, that gives a preferred role to lawyers. (4) Under the Kansas constitution, for example, the governor fills vacancies on the state's supreme court. (5) The governor, however, is required to appoint one of three nominees presented to him by a "Supreme Court Nominating Commission." (6) The commission comprises nine members, chosen as follows. …