Anatomy of a Merit Selection Victory

Article excerpt

An edited transcript of a program cosponsored by the American Judicature Society and the American Bar Association at the midyear meeting on February 13, 2009


Greg Musil, an attorney with Polsinelli Shughart and leader of Johnson Countians for Justice.

Crista Hogan, executive director of the Springfield, Missouri, Metropolitan Bar Association.

Mark White, president of the Alabama State Bar.

Charlie HaII, director of communications for the Justice At Stake Campaign in Washington, D.C.

Seth Andersen: The debate over the best methods of selecting judges really is as old as the republic. The good citizens of Massachusetts are fortunate they had John Adams to author the Judicial Article of their Constitution, which of course served as the model for Article III of the Federal Constitution. The original 13 states all used some form of appointment from the beginning; nine used a legislative-based appointment system and four utilized the executive. And, for instance, Massachusetts also has an executive council that has to ratify appointments separate from the legislative branch.

But starting as early as 1812, states began to experiment with judicial elections as an alternative to appointing judges. And early on these elections were actually seen as a reform to insulate judicial aspirants and judges from the undue influence of elected officials and the political branches and especially legislative leaders in the states.

Throughout the 19th century, every new state that joined the union created an elective system forjudges in their constitution; first on a partisan basis and then more states moved towards nonpartisan elections, especially in the west. But by the beginning of the 20th century, legal refomiers began pushing for alternatives to judicial elections because those, again, had become largely captive to political party bosses and narrow interests within ihe Bar.

The idea of merit selection first really came up in the early part of the 20th century. It was a founding principle of AJS, and it was officially adopted as policy of the American Bar Association in 1937. Several observers, including Roy Schotland, the distinguished scholar of the judiciary, have observed that more ink has been spilled on the topic of judicial selection than almost any other in judicial administration, and I suspect that most of us are here today because we've either spilled some ink in that debate or raised our voices in some way.

And a brief note: The title of today's program, "Anatomy of a Merit Selection Victor)'," might convey an assumption about terminology that is not entirely clear or agreeable to everyone. We chose the term "merit selection" primarily because it's the most recognized and accepted description of a method of appointing judges through a nominating commission process, but there are several other terms that are also in common usage, including the "Missouri Plan," the "Nonpartisan Court Plan," and "commission-based appointive systems." Most states that currently have merit selection plans also use retention elections; a simple yes-no question on the ballot for additional terms in office, but some states continue to use a reappointment system of some kind instead.

While no two merit selection plans are exactly alike, die term is generally used to describe systems in which nominating commissions constrain or guide the final appointment of judges, usually made by the governor. These commissions, again generally speaking, share the following characteristics: They're broadlybased, including both lawyers and lay members of the public as commission members; they operate under established rules and procedures; they recruit, screen, and interview applicants for judicial vacancies; and they send a short list of the most qualified nominees to the appointing authority.

Now, the adoption of merit selection plans by voters last November in three jurisdictions and the successful defense of merit selection in another represents a rather remarkable turnaround in the fortunes of merit selection proposals on the ballot. …