While all eyes were on the Reid-Angle Senate battle in Nevada last week, a ballot initiative with broad bipartisan support was defeated in the Silver State. That measure, Ballot Proposition 1, inspired by scandals in the state's judicial system, would have moved Nevada from its present system of expensive, partisan judicial elections to a system known as merit selection. Retired Supreme Court Justice Sandra Day O'Connor felt so strongly about the measure that she became actively involved in the fight for Proposition 1. Its defeat says a lot about what Americans think they know about state judges, and a lot of that is wrong.
Americans know how federal judges are picked: Under Article II and III of the Constitution, prospective judges are selected by the president with the advice and consent of the Senate, and continue in office on what the Framers called "good behavior" -- meaning they serve for life, unless they commit a crime or other serious dereliction of office. Far fewer of us know how our state judges are picked: it is more complex, the balance of judicial independence and accountability an eternal tension in the mix. With 50 states, there are almost as many different systems of judge picking, and within a single state there may be a patchwork of systems.
Merit selection, sometimes called the Missouri plan for the state that devised it, is a hybrid between appointment and election that is used in 34 states. In a merit selection system, the governor first selects judges from a list prepared by a judicial selection commission, and then after a brief initial term, the judge is submitted to the voters for an up-or-down retention vote. Merit selection was meant as a compromise -- it provides some "quality control" in the initial selection of judges, but gives the voters a say as well. It was designed to blunt the corrupting effect of forcing judges to raise money from lawyers and potential litigants. Retention races have only occasionally, until this election cycle, attracted the kind of money and controversy that partisan judicial elections have. Those lower spending levels were a good thing.
Recently, merit selection has come under attack from interest groups unhappy with key decisions by a number of state Supreme Courts. They insist that the judicial selection commissions are dominated by the state bar associations, that the bar associations are dominated by trial lawyers -- or in an alternate narrative, by liberal lawyers -- and that "elite" forces are picking state judges.
Who is behind the "elitism" charge in state elections? One outspoken proponent is James Bopp, a conservative activist and general counsel to Right to Life since 1978. While attorneys like Bopp challenged state judicial selection systems in federal court, agenda-driven interest groups played a ground game this year, pouring enough money into this year's retention election in Iowa to defeat three distinguished state Supreme Court justices who had voted to uphold the state's same-sex marriage law. In Kansas, sitting judges were targeted for their votes in a high-profile abortion case. And in Illinois, a partisan election state, the most expensive judicial race in the country this year was a referendum on Justice Thomas Kilbride, attacked for his decision in a medical malpractice case. He narrowly avoided defeat by outraising and outspending his opponent.
What is the message in these races? It is that interest groups will target and defeat state judges if they disagree with their rulings, even if those rulings are legally and constitutionally sound. And it means that judges increasingly face expensive, bitter campaigns, forcing them to raise funds from lawyers and litigants who may appear before them, increasing the appearance or even the reality of corruption.
My colleagues at a few conservative think tanks are probably now powering up their laptops to fire back the now-familiar argument that some of the groups that support reforming judicial elections have received funding from conservative bête noir George Soros. I have worked on these issues since 2006, without a dime of Soros funding; others have done so for much longer.
I've spent a fair amount of time in the last few weeks talking to people on both sides of the issue, and have found that there are three myths surrounding judicial elections. The sooner they are punctured, the easier it will be to achieve rational reform of the way state judges are picked.
Myth #1: Judicial Elections Give the People Control Over Who Will Be Their Judges
Not so. Most judges are picked when a governor fills a vacancy in the middle of an unexpired judicial term. Those who do stand for election frequently come before the people with the advantage of incumbency. In most partisan election states, downballot judicial races are decided by straight ticket voting (for those voters who even make it that far down the ballot), and judicial nominees are often designated by unelected party bosses as a form of political patronage. At least if the governor makes the pick, there is political accountability. Don't like the judges? Let the governor know the next time she is up for election.
Myth #2: Judicial Elections Are More Democratic Than an Appointive or Merit System
It depends on what you mean by democratic. The whole point of having judges, within what the Founders called a "Republican system," is that they are supposed to be able to decide cases that impact the lives of specific individuals, very directly, without fear or favor. If that is so, then the best form of state judicial selection would be the same way that federal judges are selected: by the governor, on advice and consent of the state Senate, for a term of life or of a substantial number of years. Merit selection is the next best, and politically more feasible, option. If democratic selection means that judges are picked by those who put the most money into a judicial election, then what we really need is a dose of republicanism.
Myth #3: Merit Selection Is Controlled by Elitist Lawyers
Again, it depends. There is a grain of truth here, in that lawyers do play a disproportionate role in a number of states when it comes to developing the slate of prospective judges for gubernatorial consideration. The solution lies in the formulation of the selection commission. In Arizona, cited repeatedly as a model for merit selection -- notably in a recent report by the U.S. Chamber of Commerce -- judicial selection commission are required by statute to be composed of a majority of non-lawyers. Commission deliberations are open to the public, and judges receive a "report card" at the end of each term of service, so that the voters have something other than campaign ads to go on when they get to the voting booth. Opinion polls show Arizonans are very happy with their judges and with the system. A State dissatisfied with its judicial selection commission can easily change the commission's composition through a vote of the state legislature.
Nevada voters surely had a lot on their minds when they went to the polls last week -- high unemployment, home foreclosures, and health care reform. A move to merit selection of judges, like the one proposed by Proposition 1, won't cure those problems; it won't even cure all the problems of state judge-picking. As the races last week in Iowa and Kansas show, interest groups can just as easily mobilize in merit selection races as they can in partisan races. But what merit selection does mean is that defeat of a controversial incumbent judge won't result in election of a less-qualified challenger, that judicial races won't involve blatant appeals to partisanship, and that these races generally will attract less money. That alone will help bolster the integrity and popular legitimacy of state courts.