The Missouri Law Review's title for this symposium rightly recognizes the distinction between judicial selection and judicial retention. (1) We should distinguish the process that initially selects a judge from the process that determines whether to retain that judge on the court. Judicial selection and judicial retention raise different issues. (2) In this paper, I primarily focus on selection. I summarize the fifty states' methods of supreme court selection and place them on a continuum from the most populist to the most elitist. (3) Doing so reveals that the Missouri Plan is the most elitist (and least democratic) of the three common methods of selecting judges in the United States. After highlighting this troubling characteristic of the Missouri Plan's process of selecting judges, I turn briefly to the retention of judges and caution against the dangers posed by subjecting sitting judges to elections, including the retention elections of the Missouri Plan. I conclude with support for a system that, in initially selecting judges, avoids the undemocratic elitism of the Missouri Plan and, in retaining judges, avoids the dangers (populist and otherwise) of judicial elections.
I. SUPREME COURT SELECTION IN THE FIFTY STATES
A. Democratic Selection Methods
While some states have individual quirks, three basic methods of supreme court selection prevail around the country: contestable elections, senate confirmation and the Missouri Plan. (4) The most common method, used by twenty-two states, is the contestable election. (5) Allowing two or more candidates to run for a seat on the supreme court is the most populist of the three methods because it puts power directly in the hands of the people, the voters. (6) Importantly, members of the bar get no special powers. "[A] lawyer's vote is worth no more than any other citizen's vote." (7)
The second common method of selecting state supreme court justices (8) is the one used to select federal judges: executive nomination followed by senate confirmation. (9) in twelve states, the governor nominates state supreme court justices, but the governor's nominee does not join the court unless confirmed by the state senate or similar popularly elected body. (10)
Senate confirmation is a less populist method of judicial selection than contestable elections because senate confirmation is less directly dependent on the "wisdom ... of the common people." (11) While contestable judicial elections "embody the passion for direct democracy prevalent in the Jacksonian era[,] ... senate confirmation exemplifies the republicanism of our Nation's Founders." (12) Senate confirmation is part of the Founders' "system of indirect democracy in which the structure of government mediates and cools the momentary passions of popular majorities." (13)
Although not as populist as the direct democracy of contestable judicial elections, senate confirmation does make judicial selection indirectly accountable to the people because, at the federal level, the people elect their senators (14) and, through the Electoral College, the President. (15) Similarly, in states that use this method of judicial selection, the people elect their governors and state senators.
In other words, senate confirmation is--like contestable elections--fundamentally democratic, (16) although it is less populist than contestable elections. Senate confirmation is democratic because it facilitates the "rule of the majority" (17) by adhering to the principle of one-person-one-vote. At the federal level, one-person-one-vote is tempered by federalism, as both the U.S. Senate and Electoral College give disproportionate weight to voters in low-population states. (18) But at the state level nothing similarly tempers the democratic nature of senate confirmation. in those states in which the governor may appoint to the court whomever he or she wants, (19) subject only to confirmation by a popularly elected body such as the state senate, judicial selection is laudably democratic because governors and state senators are elected under the principle of one-person-one-vote. …