Independence and Accountability in State Judicial Selection
Dinan, John, Texas Law Review
Independence and Accountability in State Judicial Selection THE PEOPLE'S COURTS: PURSUING JUDICIAL INDEPENDENCE IN AMERICA. By Jed Handelsman Shugerman. Cambridge, Massachussets: Harvard University Press, 2012. 400 pages. $35.00.
Although in designing governing institutions American state constitution makers have deviated from various arrangements in place in the U.S. Constitution, state-level departures have been nowhere more extensive or important than regarding judicial selection. Some states follow the federal approach in vesting the power of appointing judges in the governor, generally with a requirement of legislative confirmation.1 In a couple of states the legislature makes the appointments.2 In other states, in a method first adopted in the 1830s, judges are chosen in partisan elections. 3 A number of states hold nonpartisan elections, an approach that gained favor in the 1910s.4 The most recent innovation, dating back to the 1940s and now used in some form in twenty-five states, is the merit plan. Under such plans, the governor makes the initial selection, generally working from nominees forwarded by a selection commission, and once on the bench, the judge stands for retention elections at periodic intervals.5 By the early twenty-first century, nearly ninety percent of state judges are subject to popular election in some fashion.6
Given that "almost no one else in the world has ever experimented with the popular election of judges," Jed Handelsman Shugerman poses the following question in The People's Courts: Pursuing Judicial Independence in America: "Why have Americans adopted such a strange practice, when almost no one else has done so before or after?"7 In prior articles, scholars have traced the origin of particular selection systems, especially partisan elections and merit plans.8 But Shugerman provides "the first comprehensive, archival study of state judicial selection over American history" 9 and considers the individuals, interests, and ideas responsible for changes over time. In doing so, he draws on an impressive array of sources, making particularly good use, among other archival records, of extensive debates in state constitutional conventions in the mid-nineteenth century as well as several relevant twentieth-century conventions.
Conceived as "a work of legal history and political history" and "also a history of an idea,"10 Shugerman's book makes his principal argument that the development of state judicial selection can be viewed as "the story of the ongoing American pursuit of judicial independence-and the changing understandings of what judicial independence means." 11 As he argues: "Interest group politics, economics, and specific events drive these stories of judicial design at each stage, yet at the same time, ideas mattered. The idea of judicial independence has been surprisingly resilient and popular throughout American history."12 In contrast with conventional accounts that treat the evolving design of state judicial selection systems as the product of shifting support for the competing goals of judicial accountability and independence, with judicial elections understood as securing accountability,13 Shugerman emphasizes the predominant concern with independence and maintains that "[j]udicial independence has long been the rallying cry in favor of judicial elections in their varying forms."14
This review proceeds in two parts. First, I summarize Shugerman's account of the three major developments in state judicial selection: the midnineteenth century adoption of partisan elections, the Progressive Era turn to nonpartisan elections, and the mid-twentieth-century rise and spread of merit selection. Second, I assess his principal argument that the history of state judicial selection is best understood through the analytical framework of judicial independence. Although helpful in understanding certain historical moments, especially the adoption of partisan elections and the rise of merit selection, a predominant concern with judicial independence may be less helpful in understanding contemporary debates, especially in comparison with standard accounts that stress the strong degree of support for accountability alongside independence. …