States and municipalities still seek to build upon and improve
the judicial selection methods used by prior generations. Like
most institutional arrangements that are responsive to the needs
of society, judicial selection demands an on-going process that
borrows and profits from the past, meets the needs of the present
and remains flexible to permit future adaptation. (1)
At the core of any system of justice is the judge, the arbiter of society's conflicts. While good judges cannot ensure a just society, arguing that the quality of the judiciary is unrelated to the quality of justice proves difficult. (2) Unqualified or unsuitable judges will lead to capricious justice, where inconsistency, inequality, and arbitrariness undermine the force of law. Arbitrary decisions degrade the meaning and purpose of democratic government and are anathema to the rule of law. (3) The debate over methods of judicial selection reflects, at its heart, a debate about the value of law as a governing force. The goal is to produce a judiciary worthy of the respect and obedience of the community, thereby promoting consistency, stability, and fairness. There is a continuing need to reevaluate and assess methods of judicial selection to ensure a qualified bench and advance the cause of justice.
Traditionally, the debate over methods of judicial selection has centered primarily on the competing ideals of judicial independence and judicial accountability. An independent judiciary, free from political constraints that impede fair and impartial decision-making, ensures that judges' decisions will reflect the case facts and the law. Every citizen benefits from a judicial system that accurately and effectively addresses conflicts in a neutral forum. Unlike officials in the legislative and executive branches, who are meant to be the representatives of the people, judges occupy a unique position in that they are responsible to the law. A purely independent judiciary, subject to no limits or checks on its authority, however, may run afoul of the law without any serious consequences. (4) Therefore, judicial accountability is both necessary and desirable to provide checks on the powers of the judge. (5) Finding an appropriate balance is (for obvious reasons) difficult. Judges need decisional independence if they are to be faithful to the law, yet constitutional government demands institutional accountability. (6) Constitutional government depends on a judiciary populated with judges who not only understand the law, but will apply the law fairly and faithfully.
These conflicting goals form the backdrop for the ongoing debate over how to best select judges. Since the American Revolutionary War, there have been heated debates about the best methods for state judicial selection. In the early 20th century, the "merit selection" plan was proposed. (7) This method was thought to balance the competing ideals of independence and accountability by combining features of appointment and popular election. (8) From 1940 until 2000, the "merit selection" plan was adopted in some form by thirty-two states and the District of Columbia, (9) the most prominent judicial reform movement since the Jacksonian era. "Merit selection" systems use a bipartisan nominating commission made up of lawyers and laypersons that makes recommendations to the appointing authority. (10) Today, as we reassess appointive methods of selection, a closer examination of existing judicial nominating commissions can provide vital insights to advance our discussion.
To that end, the Article proceeds in five parts. Part I provides a brief history of judicial selection in the states, with particular attention to the development and adoption of appointive methods (including the so-called "merit selection" method). Part II examines the reaction to these merit selection plans and addresses common questions about the role and function of judicial nominating commissions. …