Preserving Judicial Independence
Merit selection of judges has come under increasing attack, with Missouri the latest target for those who seek to politicize judicial selection. Judicial nominating commissions must take concrete steps to demonstrate their effectiveness, in order to counter this trend and maintain their important role as independent bodies free of partisan influence.
Last month, the Missouri House of Representatives voted to support a ballot referendum that would alter the state's long-established nonpartisan court plan. Missouri, the first state to adopt merit selection of judges by establishing an independent nominating commission to review applicants for the state appellate courts and make recommendations to the governor, has become synonymous with the plan. The proposed changes would allow the governor to select four of seven commissioners, remove a requirement that the governor's appointees be non-lawyers, and eliminate the ex officio chair position held by a member of the state's supreme court. The proposal, which will go before voters this November, also increases the number of individuals the commission recommends, from three to four. Most notably, the proposal would permit a governor to appoint a majority of commissioners during his or her first term of office. Taken as a whole, the changes would significantly increase the governor's control over the nominating commission. Florida, where the governor is allowed to appoint commissioners at will, provides a compelling example of the possible implications of these changes, demonstrating how political control of the commissions can alter the selection process.
The sponsor of the Missouri proposal, state Senator Jim Lembke, argues that the current system allows for too much control by the trial bar and "leaves voters with no one to hold responsible for judicial rulings they dislike." His arguments have become commonplace around the country, particularly among a small group of political activists who aspire to force the judiciary to be compliant in the face of strong political winds. For example, in Florida, where three supreme court justices are facing a well-coordinated anti-retention campaign in 2012, the legislature has proposed that all gubernatorial appointments to the nominating commission serve at the pleasure of the governor, meaning that commissioners could be removed without cause. The Wall Street Journal has editorialized "The so-called Missouri Plan for judicial selection has become controversial in dozens of states that use it for giving disproportionate influence to liberals and trial lawyers." A new paper released by the Federalist Society claims that "Nebraska's judicial selection system is still fraught with politics" and proposes greater transparency, including a requirement that the commissioners' votes on recommendations be public.
Despite these claims, however, there is little evidence to suggest that merit selection is being systematically degraded by the vagaries of politics. In fact, a new study by the American judicature Society examines how merit selection systems are functioning in practice by surveying nominating commissioners, and provides evidence that merit selection systems are indeed functioning well. The study is the largest of its kind, with 487 commissioners in 30 states and the District of Columbia participating; it is also the first study of nominating commissioners in nearly 20 years. Nominating commissions function as the defining characteristic of merit selection systems, yet commissioners rarely speak publicly about the process. The anonymous survey provides a unique opportunity for those most familiar with the system - the commissioners- to offer their candid and honest assessments of the process.
The commissioners' responses illustrate an increasing reliance on formal and consistent rules of operation and ethical guidelines, evaluation processes that focus on applicants' professional qualifications and experience rather than political factors, and high levels of respect for their peers and the process. …