Beyond Accountability and Independence: Judicial Selection and State Court Performance
Cann, Damon, Judicature
Political scientist Douglas Rae has shown that the method by which governmental officials are selected can have profound political consequences.1 It thus behooves judicial scholars to evaluate the quality of justice obtained under different selection plans. Not only could the results of such studies have important ramifications for states, they can also inform the nascent debate on whether federal judges should be elected rather than appointed.2
Political pressures on judicial candidates led many states to abandon judicial elections in favor of merit selection plans (among which the Missouri Plan is the most prominent) where judges are appointed to an initial term of office by the governor (who chooses from a list prepared by a nonpartisan nominating commission). After these judges serve their initial term, they must stand for a retention election. A host of "good government" groups, as well as the American Judicature Society, have relentlessly advocated reforming state courts by adopting such merit-selection plans nationwide.
Proponents of merit selection contend that the meritbased system is an ideal compromise between two conflicting ideals for judicial selection plans-independence and accountability. Independence is protected because judges are initially appointed, generally serve longer terms, raise and spend little money on campaigns, and do not face other candidates when they stand for retention elections (and thus campaigns tend to focus on qualifications rather than ideology). Still, the retention elections allow for a measure of accountability by providing a means for the public to remove a judge whose decisions are unacceptable.
Some have contended that the popularity of merit selection is unwarranted because limited empirical evidence exists supporting the claim that merit selection actually preserves independence while promoting accountability. I contend that the scholarly obsession with independence and accountability has led scholars to overlook the overall quality of outcomes under different selection systems. This article reviews criticisms of common modes of selection and the empirical evidence behind those criticisms, and recommends a new way to evaluate the overall performance of a state court system based on the evaluations of the judges within the system. Judges in states with certain modes of selection may rate the overall quality of justice in their state at a higher level than judges in states with other modes of selection.
Perhaps the most striking factor in existing empirical studies of judicial selection mechanisms is the lack of support for reformers claims. While reformers have contended that merit selection plans yield more qualified judges, the bulk of the evidence suggests this is not the case. For example, one study examining the personal characteristics of judges sitting on state courts of last resort shows that the method of selection has little or no impact on the percentage of judges selected with strong educational and professional qualifications.3 A follow-up study shows that in spite of a jump in the number of states using merit selection plans between the 1960s and the 1980s, there was (at best) only a trivial increase in the qualifications of state judges over that same time period/ In short, existing evidence does not support the contention that any method of judicial selection is more successful than another in selecting experienced and well-educated judges.
Merit selection has also been praised as a way to insulate the judiciary from political pressures. However, a path-breaking study by Melinda Gann Hall demonstrates that levels of partisan competition in a state not only affect the proportion of the vote received by the incumbent, but also outcomes in nonpartisan and retention elections. This implies that voters are able to identify the ideology of candidates-even in retention elections-and cast their vote accordingly. …