It is a pleasure to be here and to be on this panel. A number of years ago, there was a panel on judicial selection at Willamette University Law School, and one of the panelists had a perfect solution to the issue of judicial selection in the states. He argued that judicial elections violated the Guaranty clause of the constitution. That is, judicial elections were contrary to the requirement of a republican form of government and should be swept away as unconstitutional. (1) It is commendable that we have not heard such proposals as that during this session.
All the paper presenters have touched on interest groups and the judiciary --with some of the discussion quite broadly examining interest groups. This comment will narrow things a bit and just discuss one part of this issue: the role of political parties and interest groups in maintaining or changing state judicial selection systems.
Traditionally, we think of judicial elections as promoting accountability of judges, and we think of appointive or merit-selection systems as representing independence. The overwhelming tendency since the implementation of merit selection in Missouri has been that states have moved from elections to some form of merit selection. However, Professor Schotland's comment about Tennessee is most appropriate here because only a last-minute political compromise kept Tennessee from being the first state to move from a merit-selection plan back to a judicial election system. (2)
For a moment at least, let us pass over the debate about whether judicial selection systems should be changed. I realize there is a body of thought that maintains that judicial election systems should not be changed--either because they are achieving a valued goal of accountability or because the alternative does not produce better judges or a less politicized system of selection. (3) Indeed, a conclusion that one might draw from Professor Dimino's paper is that all systems of selection are highly politicized, so why change? (4)
But let us go to our main point. If we are going to get from point A to B --if we are going to change a state system of judicial selection--what must be done? How does one get from a judicial election system to a merit-selection system? Generally it is going to take a state constitutional amendment to make the change. That is usually going to mean that a constitutional amendment must be approved by the legislature in order to be submitted to the people for a vote. To do this, key interest groups must be considered. The story of changing to merit selection is the story of interest group politics, and, as Professor Schotland points out, it is a story of an increasingly difficult process. (5)
II. KEY INTEREST GROUPS
As Professors Solimine and Gely mention, perhaps the most important group in changing the state system of judicial selection is the bar. (6) As they point out, the bar is not a monolithic institution. There are nearly 1.2 million active lawyers in the United States today (7) compared to 349,000 in 1970. (8) The interests of such a huge number of lawyers cannot be uniform; this is especially the case given the increasing specialization of the law. In battles over state judiciaries, the segments of the bar that are most involved (because they have the most at stake) include lawyers who handle civil cases. These two competing segments of the bar--with the defense bar aligned with business and professional groups and the plaintiffs' bar aligned with labor--have been at the core of these election battles. These interests within the bar have proven mortal enemies in backing opposing candidates in judicial elections throughout much of the country. While Solimine and Gely are correct when they mention that the death penalty has been an issue in judicial races, (9) and Professor Dimino mentions crime as an important issue, (10) the driving force in almost all high-profile judicial elections over the past quarter century has been tort law. …