A Comparison of the Criminal Appellate Decisions of Appointed State Supreme Courts: Insights, Questions, and Implications for Judicial Independence
McLeod, Aman L., Fordham Urban Law Journal
Of all the systems used to select judges in the United States, appointment systems are the most widely used. (1) An appointment system is one in which the state's governor, with or without the input of a nominating commission, chooses candidates to fill initial and interim vacancies on a court. (2) Today, a majority of the states use appointment systems to select their supreme court judges. (3) There are many important differences in the institutional arrangements and procedures that these appointment systems use, however, and no research has been done to see if these differences affect the outcome of cases.
This Article presents the results of a study conducted to see whether state supreme courts selected in states with dissimilar appointment systems differ in the way they decide criminal appeals. Comparing the criminal decisions of courts selected with different appointment systems may also suggest something about how different appointment systems impact judicial independence.
I. APPOINTMENT: THE FALL AND RISE OF A JUDICIAL SELECTION SYSTEM
As of 1846, appointment was second the most common way of selecting justices of the states' highest courts. (4) Of the twenty-nine states that entered the union prior to that date, fourteen used appointment systems to select supreme court justices. (5) Over the course of the nineteenth century, however, the proportion of states that used appointment systems for their highest courts dropped sharply as many new states entered the union with different selection systems (typically partisan elections) and as states already in the union switched to different selection methods. (6) The change away from appointment toward partisan election of justices was, among other things, prompted by the belief that elected judges would exercise their duties more independently than judges who owed their appointments to the governor or to the legislature. (7) The change was also spurred by the belief that elections would prevent the judiciary from being filled with judges who owed their appointments to political connections rather than to personal qualifications. (8) Defenders of judicial selection systems that combined appointment and life tenure retorted that elections would undermine judicial independence by subjecting judges to the will of the people and to manipulation by political party leaders; but these arguments did not prevent the adoption of judicial elections in most states during the period. (9)
By 1909, thirty-five of the forty-six states in the union used partisan elections to select supreme court justices. Partisan elections, which some viewed as a means of assuring judicial independence from the other branches of government, came under renewed criticism for being detrimental to judicial independence. Critics claimed that elected judges were indebted to the political parties upon whom the judges depended for electoral support and that party leaders could use their patronage powers to influence the judiciary. (10) Critics also pointed out that elected judges frequently heard cases involving attorneys and litigants who had contributed to their campaigns, which further undermined public confidence in the courts' independence. (11)
Interest in appointment as a judicial selection method enjoyed a revival during the 1910s in response to the previously-mentioned problems. (12) Prominent proponents of a return to appointment during this period included Roscoe Pound, John Wigmore, and Albert Kales. (13) Furthermore, the effort to encourage judicial selection reform provided one of the driving forces behind the creation of the American Judicature Society in 1913. (14) In 1914, Kales proposed an appointment plan eventually known as merit selection, which many reformers of the era supported. (15) Kales's idea sparked the revival of interest in appointment as a judicial selection system. Although various states considered several versions of Kales's proposal throughout the 1930s, Missouri was the first state to adopt a merit selection plan in 1940. …