The Increasingly Fractious Politics of Nonpartisan Judicial Selection: Accountability Challenges to Merit-Based Reform

Article excerpt

I. INTRODUCTION

In 1940 the state of Missouri reformed its method of selecting judges in its supreme court and other designated courts in an effort to insulate the judiciary from partisan politics and to assure judicial independence. (1) Missouri's system proved to be an influential innovation that spearheaded a broader mid-twentieth century court reform movement. (2) Among its key features, Missouri's approach entrusts to a nominating commission the authority to recommend a slate of qualified judicial candidates, from which the state's governor makes a selection. (3) Other than one judicial member, no commission member is permitted to hold public office, and no member may hold an "official position in a political party." (4) The chosen judge later runs against herself in an uncontested retention election in which the electorate registers its views concerning judicial performance; unless a majority of voters vote against retention, the judge continues to serve a full term of office. (5) In a practice recently formalized by Missouri Supreme Court rule, the public's decision on retention is aided by published data, including surveys of lawyers and other indicia of competent performance. (6) Such evidence-based data, it is assumed, insulate members of the judiciary from the excesses of contested, partisan elections. (7)

Embracing the Missouri Plan, as the state's nonpartisan, commission-based method for selecting judges came to be known, thirty-six states in addition to the District of Columbia have adopted a form of the judicial nominating commission feature and, of these jurisdictions, (8) sixteen also use retention elections. (9) The Plan drew inspiration, in turn, from Progressive-era good government campaigns and their technocratic, expert-driven solutions to problems of public policy and administration. (10) By removing the courts from the potentially corrosive effects of electoral politics, this court reform initiative rejected the antiprofessional, anti-hierarchical ideology of the era of Jacksonian democracy that, in the mid-nineteenth century, had advocated for popular election of judges. (11) In the steps taken to insulate the judiciary from partisan politics, both in the initial designation and retention determination, the Plan is frequently referred to as "merit-based" selection. (12)

In the 2010 U.S. election cycle, a campaign that identified judicial accountability as a key concern altered the tenor of nonpartisan judicial selection. Supporters of this burgeoning campaign spent generously on heated retention election advertising to unseat incumbent judges on the basis of rulings considered to be activist (in a politically liberal valence). A notable example resulted in the removal of three Iowa Supreme Court justices who joined in the unanimous 2009 ruling that declared unconstitutional under Iowa's equal protection clause a statute restricting civil marriage to opposite-sex couples. (13) These retention election expenditures, and the intensity of the anti-incumbent messages they have underwritten, (14) are generally regarded to be unusual in the states that have adopted Missouri Plan systems: they expose the judiciary to the very dynamics surrounding political processes that Missouri and other reform states had determined were a threat to judicial independence.

Underpinning the anti-retention advertising that targets specific judges is a broader challenge to the method of selecting state judges. Judicial accountability advocates favor a return to judicial selection by popular ballot, or at least a modification of current methods of selecting members of judicial nominating commissions that accord lawyers a structural role. They argue that these changes would make the judges nominated through this process more responsive to a broader swath of the state's population. To this end, they have launched ballot petition drives, commenced litigation, and proposed legislation (15) to challenge nonpartisan judicial selection methods allegedly dominated by members of the legal profession and that reduce the input of the general electorate. …