Of all the difficult choices confronting societies when they go about designing their legal systems, among the most controversial are those pertaining to judicial selection and retention. (1)
There is no one best way to select judges. (2) Any judicial selection system has both strengths and weaknesses. In order to create the best judicial selection process possible, society must be willing to design and create selection paradigms that result in the best-available individuals taking the bench even though, in the process, some well-entrenched aspects of existing schemes must fall by the wayside.
Judges usually take the bench via election or appointment. (3) Regardless of the judicial selection method employed in a given jurisdiction, most judges, even those in states utilizing judicial elections, initially take the bench through appointment. (4) Therefore, it be comes imperative to examine appointive procedures when evaluating the effectiveness of a judicial selection process.
This Article focuses on one of the pillars of the appointive process, the judicial nominating commission, although it warrants noting both that some jurisdictions that use judicial elections also use nominating commissions to fill vacancies, and that not all appointive systems utilize nominating commissions. (5) Although this Article eschews any analysis or discussion per se of the election alternative, (6) it suggests that all jurisdictions should have judicial nominating commissions. Naturally, a judicial nominating commission exists to screen and select nominees for judgeships. In discussing nominating commissions, the self-assigned purpose of this Article is to envision and describe a system that more likely will result in selecting the right person for the bench. (7)
The task in a good judicial selection system is not simply to fill vacancies, but to select the best candidates for judicial positions. Short of this goal, perhaps at the very least, a well-devised system can eliminate "seriously underqualified" candidates. (8) To accomplish this purpose through the use of a nominating commission scheme, we should strive to develop the ideal judicial nominating commission system. (9) That system should possess (at least) three principal features: it should adhere to democratic ideals; it should maintain as much independence as reasonably possible; and it should enjoy public acceptance and support. Additionally, local conditions and requirements must be considered in designing any commission scheme. Obviously, the needs of the various states and locales differ. (10) Selecting the appropriate judicial nominating commission scheme can be challenging, but effective judicial nomination commissions will greatly aid in the effort to obtain the best judges possible.
Almost needless to say, these features and considerations conflict to some extent. Because of the tension between them, they greatly complicate efforts to design an ideal commission. Despite these difficulties, we should not compromise on the principal features of an ideal scheme any more than necessary to reach the best possible balance. (11) A delicate balancing of democratic ideals and independence will garner public support for a judicial nominating commission without over-compromising any of these core principles.
This Article consists of five Parts. Part I introduces the topic, briefly explains how I was introduced to the issues being aired, (12) and provides an overview of the three fundamental, principal concerns discussed, namely democratic ideals, independence, and public support. In Part II, the Article explores the process of properly designing a commission system. The first section of Part II identifies the goals for the appointment process and introduces the concept of commission capture. The second section of Part II focuses on the makeup of commissions. It examines potential sources of authority (i. …