Academic journal article Missouri Law Review

Exporting the Missouri Plan: Judicial Appointment Commissions

Academic journal article Missouri Law Review

Exporting the Missouri Plan: Judicial Appointment Commissions

Article excerpt

I. INTRODUCTION

Debates over the best methods for selecting judges in the United States usually turn on finding an appropriate balance between independence and accountability for judges, (1) but elsewhere the tension between those two competing ends has been resolved in favor of judicial independence. According to Martin Shapiro, judges cannot, though, be truly independent, because they are dependent on those to whom they owe their office. (2) or, as Jean Blondel sees it, the question becomes one of "from whom should judges be independent?" (3) Jud ges are, in other words, dependent in some sense on those to whom they are accountable. New democracies and nations that have redemocratized after a period of authoritarian rule have posed the issue of judicial independence, then, quite differently from how it is viewed in the United States; indeed, the very connotations of independence and accountability abroad assume dimensions unknown in the United States. Notably, a version of the Missouri Plan, known elsewhere as judicial appointment commissions, "look[s] likely to become the most popular selection system of the twenty-first century." (4) This Article explores the twists and turns and the motivations and complications of judicial independence and judicial appointment commissions to suggest that perhaps American states might benefit from experiences elsewhere when choosing to modify, reform or improve judicial selection systems here.

Decisions about how judges are selected, compensated and retained are inextricably connected to determinations of how much independence can be safely allocated to judges. Politicians designing new constitutions when first creating a democratic system, when re-democratizing after a period of autocratic rule or even when reforming judicial systems do not necessarily consider judicial independence as the overriding consideration. Particularly when judicial review is part of the equation, why would politicians who hope to exercise power in the future want independent judges capable of trumping their policy choices as violating the constitution? Even in the absence of the power of judicial review, all judges potentially confront politically charged disputes. In either case, as Ramsmeyer and Rasmusen ask, "[W]ill real-world politicians keep judges independent from themselves?" (5)

Ran Hirschl argues that constitutionalization and its corollary, judicial independence, occur because of hegemonic preservation. The interplay of threatened political elites, who are fearful of the fickle nature of democratic politics; economic elites, who want protection from government through protection of property rights; and judicial elites, who seek to increase their own power and influence, drives judicial reform, both in substance and in timing. (6) Interactions among these three elites act to drive an effort to preserve the hegemony achieved under the previous rules. Ginsburg argues that configurations of judiciaries at the time constitutions are drafted are predicated upon the uncertainty of the politicians about their future political assets; (7) therefore, by placing judicial review in the hands of judges and assuring their independence, the politicians "entrench the constitutional bargain" (8) and buy insurance (risk aversion) to guarantee that political parties who lose at the polls can protect their interests nonetheless through the legal process. (9) Similarly, Finkel explains that judicial reform, specifically in Mexico, Argentina and Peru in the 1990s, was driven by the ruling regime's desire for "insurance against future political uncertainty." (10)

Outside of the United States, not only is judicial independence not a principle revered for itself, but also judicial accountability can be sought through direct, even seemingly perverse, tactics. The American goal of democratic accountability is rarely part of the calculus. Many examples prove this. For example, in 1975, Indian President Indira Gandhi declared a state of emergency and suspended the right of access to any court when alleging violations of fundamental rights. …

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