Beyond Merit Selection
Bierman, Luke, Fordham Urban Law Journal
The foundation for an independent federal judiciary is embodied in the U.S. Constitution. The Constitution vests the judicial power of the United States in the Supreme and inferior courts. (1) Federal judges are appointed by the executive subject to Senate confirmation. (2) They serve terms limited only by "good behavior" (3) and receive salaries that cannot be "diminished during their continuance in office." (4) Authority, selection, tenure and compensation are thus the bellwethers for assessing judicial independence.
State judiciaries are varied in terms of judicial authority, selection, tenure, and compensation. (5) These broad differences among the states influence the independence of a particular judicial system. Some judges are elected while others are appointed, and in both cases, there is much variation in how selections are made. (6) Judicial terms range from just a few years to life tenure. (7) Salaries approximate those of the federal judiciary in some states, but are much smaller in others. (8)
Of the factors comprising judicial independence, judicial selection receives the most attention. A number of organizations focus on studying judicial selection and offering suggestions for its improvement. (9) The popular press gives significant attention to state judicial selection issues. (10) Much scholarship focuses on issues affecting judicial selection. (11) Indeed, no topic considered by judicial process scholars receives as much attention as judicial selection. (12)
Much of this attention results from the ongoing debate regarding the appointment or election of judges. The controversy over appointment or election goes back to the early years of the Republic, and became more heated in the early twentieth century when merit selection was proposed as an alternative to straightforward executive appointment and popular election. Merit selection became the goal of reformers seeking to diminish the prevalence of popular elections for judges, while making appointment palatable to advocates of election. Missouri adopted merit selection in 1940. Soon thereafter, merit selection was used in thirty-four states and the District of Columbia for selecting at least some judges, especially appellate judges. (13)
Yet, in the last thirteen years, only one state, Rhode Island, has established merit selection, and only after a series of public scandals involving its high court. (14) Last November, Florida voters in every county rejected a referendum to implement merit selection for trial judges. (15) Legislatures in Texas, North Carolina, and elsewhere have considered merit selection for appellate judges, but have chosen not to implement it. (16) Pennsylvania, with Governor Tom Ridge's support, is making a serious effort to enact merit selection for appellate judges. The outcome, however, is far from certain. (17)
The lack of momentum for merit selection at the beginning of the twenty-first century seems ironic. The increasing presence of money in judicial elections, with concomitant concerns about justice for sale, would seem to pose an excellent opportunity for advocates of merit selection. Reform, however, remains elusive. What then remains for those who wish to improve judicial selection? Where does the merit selection constituency go if merit selection is not a viable alternative?
This Article will review some of the factors that have diminished merit selection's appeal. It will examine why merit selection has never been an entirely successful answer for reformers seeking to diminish partisanship in judicial selection. It will suggest addressing other aspects of the judicial office to promote judicial independence. It will conclude by suggesting an educational credential for becoming a judge. This credential would accomplish the objectives advanced by merit selection advocates. It would offer legitimacy to judicial aspirants and would provide independent, accountable, impartial, and well-trained judges regardless of the selection method used by any given state. …