The Merits of Merit Selection
Phillips, Thomas R., Harvard Journal of Law & Public Policy
I. TRANSITIONS IN JUDICIAL SELECTION METHODS A. From Appointment to Election B. From Partisan to Non-Partisan Elections C. From Non-Partisan Elections to Merit Selection D. Alternatives to Merit Section II. THE CHALLENGE TO JUDICIAL INDEPENDENCE FROM JUDICIAL ELECTION CHANGES A. The Explosion of Large Campaign Contributions B. The Emergence of Special Interest Group Participation C. The Retreat of State Regulation of Judicial Campaign Speech 1. The Holding of Republican Party of Minnesota v. White 2. State Codes of Judicial Conduct 3. The Post-White World a. Promises and Commitments by Judicial Candidates b. Commit Clause c. Partisan Activity by Judicial Candidates d. Solicitation Clause e. Recusal D. The Cumulative Effect of New Developments III. AN OLD ANSWER SOLVES NEW PROBLEMS: ADVANTAGES OF MERIT SELECTION OVER CONTESTED JUDICIAL ELECTIONS A. Turnover and Recruitment B. Campaign Contributions C. Enhanced Accountability D. Merit Selection's Proven Record of Success E. Failure of Less Ambitious Reforms F. Philosophical Objections to the Popular Election of Judges
America has almost as many different ways of selecting state judges as it has states. (1) Over the past two centuries, most states have coalesced around fairly uniform requirements, term lengths, and election dates for executive and legislative officials. (2) But no "consensus" method of choosing judges has developed; indeed, each decade of the last century has brought more disparity between the States, not less. (3)
In many states, the debate rages as fiercely as ever over whether judges should be "appointed" or "elected," identified by party affiliation or prohibited from any partisan activity, subject to a contested race for re-election or merely an up-or-down "retention" referendum, bound by the same ethical and electoral rules as other public officials, or treated as wholly distinct from the political branches. Even at the federal level, proposals for fixed judicial terms are periodically suggested, especially for the Supreme Court, (4) and popular election of the federal judiciary has been mooted on occasion since Jefferson. (5)
Because an equal and independent judiciary was not merely the great original contribution of American government, but also has been that aspect of our system most frequently emulated around the world, (6) one would think that in America, if anywhere, a consensus on how to choose judges would have emerged. Why has it not?
One possibility is that, although the American people and the American States all support an overarching commitment to an equal and independent judiciary, they disagree on what that commitment really means. No doubt, because of the power judges hold to change public policy through both constitutional and common-law rulings, their actions have periodically provoked marked controversy. In current parlance, this debate centers around whether justice is best served when courts seek a "just" result regardless of literal text or controlling precedent, or when judges merely apply the law as they find it, regardless of their personal preferences or their intuition regarding contemporary popular sentiment. For example, in the final national television debate between John McCain and Barack Obama during the 2008 presidential campaign, Senator McCain pledged to appoint judges with "a history of strict adherence to the Constitution" and "not legislating from the bench," while then-Senator Obama responded that "the most important thing in any judge is their capacity to provide fairness and justice to the American people." By way of example, he explained that "the kind of judge I want" is "that if a woman is out there . …