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The Curious Logic of Judicial Elections

Rachel Paine Caufield For I agree, that there is no liberty, if the power of judging be not separated from the legislative and executive powers.1 When one undertakes to administer justice, it must be with an even hand, and by rule; what is done for one must be done for everyone in equal degree.2 I. INTRODUCTION Among the foundational ideals of the American Republic, none can be said to be so enduring as the notion that we are a nation of laws, not men.3 John Adams, using these words, expressed a general understanding that no individual would be granted such grand authority as to assume sole responsibility for the well-being of the nation, but that ours was to be a nation where the rule of law would bind all individuals, including all government officials. No one was to be above the law; the principles of law, first and foremost, would form the basis of a shared collective responsibility to advance and maintain the nation.

Research Fellow, The Elmo B. Hunter Citizens Center for Judicial Selection, The American Judicature Society. Associate Professor, Department of Politics and International Relations, Drake University. 1. THE FEDERALIST NO. 78 (Alexander Hamilton) (footnote omitted). 2. W. Cleon Skousen, THE MAKING OF AMERICA 241 (date) (quoting Thomas Jefferson). 3. John Adams, Novanglus Papers No. 7, in 4 THE WORKS OF JOHN ADAMS 106 (Charles Francis Adams ed. 1851). The phrase was later adopted by the Massachusetts Constitution in an explicit statement of the separation of powers: In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men. MASS. CONST., Pt. 1, art. XXX.

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Law, of course, is not separable from men (or women). Law is not self-actualizing. Instead, human beings are required to give meaning and voice to the body of law, giving form and function to the words and logic contained within the law.4 This necessary transition from an idealized and abstract law to a group of people vested with the authority to interpret and sustain the law has proved to be exceptionally difficult. The job is fraught with challenges, and judges must continually negotiate popular understanding of law, vital principles of equal justice and fairness, and evolving societal situations as they interpret statutes and constitutional provisions. After all, the words of a legal text may give precious little guidance on the real-life controversies that are presented in a case. The people who populate the judicial branch are given a unique function, one that necessarily draws upon the ideals of John Adamsthe principled application of law outside of personal motives. Too often, contemporary rhetoric about judicial selection is based on narrow understandings of the judicial function, untethered to critical appraisal of the unique role that courts play within our Republican government. Even aside from rhetorical flourish, substantive claims about the nature of judicial elections often hinge on normative claims that misrepresent the intentions of the founding generation or ignore research on how alternative systems work. In short, arguments favoring judicial elections tend to dismiss claims about an independent judiciary, relying on stirring stories of government of, by, and for the people. Imagining an independent judiciary, where law is the primary source of decisionmaking authority and judges adhere to law to the best of their ability, is not nave or unrealistic. Our governmental structures should reflect the goals of our political community, and the rule of law is one of the most durable and defining shared valuesit promotes political, social, and economic freedom, it forms the basis for due process rights and
4. MAURICE ROSENBERG, The Qualities of JusticeAre They Strainable?, 44 TEX. L. REV. 1063, 1063 (1966). Justice is an alloy of men and mechanisms in which, as Roscoe Pound remarked, men count more than machinery. Assume the clearest rules, the most enlightened procedures, the most sophisticated court techniques; the key factor is still the judge . . . .The reason the judge makes or breaks the system of justice is that rules are not self-declaring or self-applying. Even in a government of laws, men make the decisions (citation omitted).

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equal protection guarantees, it guarantees equality under the law, and it preserves equal opportunity for all citizens. Our contemporary understanding of the job of judging is informed by generations of discussion and debate about the nature and role of the judicial function. Among the most prominent public-policy discussions engendered by this debate is the question of judicial selection.5 Generations of Americans have deliberated about the best ways to identify and select individuals who will serve the vital role of interpreting law. Consistent with the conceptual understanding of the rule of law, judges are to be responsible for applying law in a neutral manner. The notion of the rule of law is not uniformly understood, although there is consensus around several core values: (1) the authority of government is limited under the law; (2) law is clearly articulated and understood; (3) the law is fairly administered and; (4) the law applies to all, and treats all individuals equally. Neutrality is the cornerstone of a judiciary in that it permits full equality before the law and ensures fairness in legal decisions. Thomas Jefferson expressed this when he wrote: When one undertakes to administer justice, it must be with an even hand, and by rule; what is done for one must be done for everyone in equal degree.6 How we structure our judicial-selection process is a direct reflection of our values as they will be practiced in the judiciary. Often, the debate over selection methods takes the form of a debate between judicial independence and judicial accountability arguing that the two are nearly, if not entirely irreconcilable. Although there may be tension between the two, it is possible to embrace selection methods that balance these competing ideals.7 To put it plainly, neutrality may not be entirely possible, but it is certainly a laudable enough ideal that it should not be blithely pushed aside to make way for arbitrariness, subjectivity, and caprice. How these tenets are to be embodied in a judicial branch is an enduring question.
5. As Roy Schotland has noted, No subject in American law has drawn as much ink, and sweat, as the debate and fight over which method of selecting judges is least unsatisfactory. Roy A. Schotland, To the Endangered List, Add: Nonpartisan Judicial Elections, 39 WILLAMETTE L. REV 1397, 1398 (2003). 6. SKOUSEN, supra note 2, at 241. 7. Rachel Paine Caufield, Reconciling the Judicial Ideal and the Democratic Impulse in Judicial Retention Elections, 74 MO. L. REV. 573 (2009).

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II. THE DEBATE IN HISTORICAL PERSPECTIVE The founding generation clearly favored a judiciary that would be separate and distinct from other governing bodies. At the time of the Constitutional Convention, all of the states appointed their judges. Seeking to prevent unilateral control over the process, and consistent with the universal distrust of executive power owing to their experience with the British crown that was the norm at the time, this generally took the form of legislative appointment. Eight of the thirteen original states vested appointment authority with one or both houses of their legislature, two permitted gubernatorial appointment with confirmation, and three provided for gubernatorial appointment with the consent of an executive council.8 This commitment to judicial appointment was further embraced, of course, with the adoption of the United States Constitution, which allowed for presidential appointment and senatorial confirmation, and insulated the judiciary from overt political control by barring the reduction of judicial salaries and granting terms of office for good Behaviour.9 The appointed judiciary, however, came under attack during the age of Jacksonian democracy, and the 1830s witnessed a widespread suspicion of control by the wealthy and privileged few.10 Georgia led the way in adopting contested elections in 1812, but the trend would not become fully apparent until Mississippi became the first state to elect all judges in 1828. By the time of the Civil War, twenty-four of the thirtyfour states used direct election of judges, with seven states

8. LARRY C. BERKSON, JUDICIAL SELECTION IN THE UNITED STATES: A SPECIAL REPORT UPDATED BY RACHEL CAULFIELD & MARIA REDDICK, http://www.Judicials election.us/ uploads/ documents/ Berkson_1196091951709.pdf (last visited Mar. 14, 2011). 9. See U.S. CONST. art. III, 1. 10. The move to judicial elections is widely accepted as a move to create more political accountability and undermine the role of legal elites in appointment processes, although Halls review of the constitutional conventions at the time more than ably explains that moderate lawyers led the effort to switch to an elected judiciary. These moderate lawyers saw appointment systems as overtly political, and they anticipated that judicial elections would de-politicize the judiciary and promote more qualified jurists while bringing more honor and public acclaim to the legal profession. See Kermit L. Hall, The Judiciary on Trial: State Constitutional Reform and the Rise of an Elected Judiciary, 45 HISTORIAN 337, 337-38 (1983); see also Roy A. Schotland, The Myth, Reality Past and Present, and Judicial Elections, 35 IND. L. REV. 659 (2010).

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adopting elections in 1850 alone.11 Every state joining the union between 1846 (Iowa) and 1912 (Arizona) used direct popular election to select judges.12 The use of judicial elections coincided with the development of political parties, and judicial candidatesin fact, all candidateswere chosen through party conventions, appearing on the ballot with their party affiliation listed. As party machines gained power, concern about the partisan nature of judicial elections spread. In 1853, Massachusetts refused to adopt popular elections after witnessing partisan elections in New York. And, in 1873, judicial candidates in Cook County, Illinois took the remarkable step of refusing to list party labels, determining that they would run instead in a nonpartisan election.13 This decision proved prescient, as the progressive movement began to decry partisan control, proposing to diminish the power of party machines through two prominent reforms. The first, the direct primary, became dominant in virtually all elections and were used to lessen elite party control and broaden candidate choice to include average party voters. Second, nonpartisan elections where candidates would run without a party listed on the ballot, were proposed for a number of positions, including judicial seats. Nonpartisan elections were seen as a way to minimize the role of corrupt party machines, ensuring competent judges who would remain separate from the political mill.14 By 1927, nonpartisan elections were used in twelve states. Even as nonpartisan elections were being hailed as a possible solution to overt political influence in the judiciary, some states started to question their effectiveness. In practice, party leaders would often choose candidates and an electorate would elect them, without any party labels to guide decisionmaking. The lack of information provided by party labels often created an uninformed electorate, and several states had suffered the consequences, with overtly partisan or patently
11. BERKSON, supra note 8. 12. PHILIP L. DUBOIS, FROM BALLOT TO BENCH: JUDICIAL ELECTIONS AND THE QUEST FOR ACCOUNTABILITY 3 (1980). 13. Id. at 4 14. BERKSON, supra note 8, at 4.

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incompetent jurists. Iowa, Kansas, and Minnesota had adopted nonpartisan elections and abandoned them by 1927.15 As states wrestled with their practices in the early twentieth century, a small but passionate group of reformers was taking up the issue of judicial selection, largely based on the belief that an elected judiciary was prone to political manipulation and therefore undermined the fundamental notion of a fair and impartial judiciary. The most prominent call came from Roscoe Pounds speech to the American Bar Association in 1906, in which he posited that putting courts into politics, and compelling judges to become politicians, in many jurisdictions [had] almost destroyed the traditional respect for the bench.16 These reformers coalesced around an alternative originally proposed by Albert Kales, the first Director of Research at the American Judicature Society.17 In consultation with leading political scientist Harold Laski and a growing group of legal reformers, Kales would produce a system now known as merit selection. Under this new system, the governor would make appointments to the judiciary, but would be constrained by a nonpartisan advisory committee made up of lawyers and nonlawyers. That committee would review applications and determine which individuals were most qualified for judicial service, without reference to party affiliation or political connections. Once appointed, judges would periodically stand for a retention election in which the voters would determine whether they would remain on the bench for an additional term in a simple yes or no vote without a competitor. This new judicial-selection plan was proposed as a way to minimize the political influences in selection of judges while maintaining a mechanism for popular control that would serve to guard against corruption and incompetence. The plan was endorsed by the American Bar Association in 1937 and first adopted in Missouri in 1940. The so-called merit selection commission-based system became a dominant paradigm for judicial reform across the country, with various
15. BERKSON, supra note 8. 16. Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, reprinted in 35 F.R.D. 241, 290 (1964). 17. See BERKSON, supra note 8.

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states adopting the system over the coming decades. Although Missouri remained the only state to adopt the system (for appellate judges) through the 1940s, the pace picked up steam in the 1950s and 1960s. By 1970, twelve states had adopted the system to choose through statute or constitutional amendment some or all of their judges.18 By 1980, the number increased to twenty-one states and the District of Columbia, with an additional four states adopting merit selection through executive order.19 Over the past several decades, the tide has turned against the adoption of new merit-selection systems.20 Nonetheless, to date, no state that has adopted this system through statute or constitutional amendment has abandoned it in favor of any other method of selection. And, despite significant losses in some statewide ballot initiative campaigns to adopt merit selection,21 a few jurisdictions have adopted merit selection,22 while others have successfully defended the system through popular vote.

18. This does not include Jefferson County, Alabama, which adopted merit selection for interim vacancies in 1950. Alabama continues to allow counties the discretion to adopt merit selection for interim vacancies. 19. Methods of Judicial Selection, AM. JUDICATURE. SOCY, http://www.judicials election.us/judicial_selection/methods/selection_of_judges.cfm?state=.http://www.judicials election.us/uploads/documents/Merit_Selection_Progression_PDF_1F7A8597AE14E.pdf. 20. The last successful statewide campaign to establish merit selection happened in 1994 in Rhode Island, in large part as a result of well-publicized scandals within the judiciary. Rachel Paine Caufield, The Evolving Patchwork of Judicial Selection in the United States, 53 ADVOCATE, Winter 2010, at 85. See also Seth Andersen, Examining the Decline in Support for Merit Selection in the States. 67 ALB. L. REV. 793 n.3 (2004). 21. Similar statewide measures were introduced in Florida in 2000, when every county had an option to adopt merit selection on the ballot. The measure failed in every single county, with an average affirmative vote of just 32%. In South Dakota, a constitutional amendment providing for merit selection for circuit court judges was on the ballot in 2004; voters rejected the amendment 62% to 38%. In 2010, a statewide ballot initiative in Nevada failed by a 58% to 42% margin. Caufield, Evolving Patchwork, supra note 20. See also History of Reform, AM. JUDICATURE. SOCY, http:// www.judicialselection.us/judicial_selection/reform_efforts/failed_reform_efforts.cfm?state =NV (last visited Mar. 14. 2011). 22. Greene County, Missouri adopted merit selection in 2008, and two more Alabama counties voted in favor of merit selection for interim vacancies. Johnson County, Kansas witnessed the most well-organized effort to disband merit selection, but voters overwhelmingly voted to keep the system in 2008.

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III. THE CONTEMPORARY DEBATE AND THE CURIOUS LOGIC OF JUDICIAL ELECTIONS In the contemporary debate about selection methods, arguments for and against judicial elections have proliferated. A changing interest-group environment has altered the practical politics of judicial elections, leading to a national tide of money and advertising infusing these contests,23 new calls for election reform and/or alternatives to elections have emanated from many sectors, including court-watchers and the legal community. Other segments of the legal community and the citizenry at large are pushing back with new justifications for expanding the practice of judicial elections. The logic behind these calls for judicial elections generally emanate from a few central arguments. A. Democracy Requires a Right to Vote for Government Representatives One of the most fundamental claims underlying arguments for contestable judicial elections is that democracies vest power in the people, and therefore, all government officials, including judges, must be directly accountable to the public through popular elections. In debates about judicial selection, one frequently hears reference to the notion that all government authority is granted exclusively by the voters through regular election. Therefore, the right to vote for judges is central to the creation and continued legitimacy of a judicial branch of government, just as it is in all other branches of government. For example, a group in Minnesota advocating for judicial elections writes that We the people retain control of our government through our right to vote for those who serve us. At the very core of our representative democracy is the right, and responsibility, to vote for our leaders.24

23. JAMES SAMPLE ET AL., THE NEW POLITICS OF JUDICIAL ELECTIONS 2000-2009, available at http://www.justiceatstake.org/media/cms/JASNPJEDecadeONLINE_8E7FD3FEB 83E3.pdf. 24. TIM TINGELSTAD, MINNESOTANS FOR MEANINGFUL JUDICIAL ELECTIONS, JUDICIAL ELECTIONS ON TRIAL, available at http:// justicein mn. com/ Forms/ Judicial_ Elections_On_Trial.pdf (last visited Mar. 14, 2011) .

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Judicial candidates themselves frequently echo this claim in their appeals to voters, including Greg Wersal, the candidate who initiated Republican Party of Minnesota v. White,25 who writes in his campaign materials: Greg Wersal believes that judges must be accountable to the Constitution and to the public. Greg believes in the right to vote and that people have a right to choose their judges. Greg believes in that simple concept and he believes it is worth fighting for.26 Joining Wersal, are Jim Kitchens of Mississippi, whose campaign website says that As a Supreme Court justice, I will always protect the interest of the people when it comes to the selection process of our judges . . . . To take this basic right of electing our leaders away from the people . . . is wrong,27 and Dan Griffiths of Minnesota, who writes that
The whole essence of a democracy is that we the people need to choose our leaders, yet the mind-set among some is that people arent really smart enough for that, so someone else should do it for them. Thats exactly what we fought against at the birth of this nation.28

Certainly, these noble statements seek to build upon the almost mythical understanding of the American experiment as a new dawn of self-determination and popular rule. But the history of the American founders and their intentions for the judicial branch of government contraindicates this understanding. We are wise to look at the Framers for guidance on questions of institutional design, but the United States Constitution explicitly rejects any popular control over the judicial branch. Only two entities are given responsibility for judicial selectionthe president and the Senateneither of which was to be accountable to voters under the original constitutional design. The president was to be selected by the Electoral College, a body created solely to guarantee against
25. 536 U.S. 765 (2002). 26. A Campaign for Judicial Accountability a Candidate for Minnesota Supreme Court Justice, WERSAL FOR JUSTICE, http://wersalforjustice.com/ (last visited Mar. 14, 2011). 27. KITCHENS FOR SUPREME COURT, http://www.kitchens forjustice.com/ 2008/05/ protecting-your-right-to-elect-judges/. 28. Beth Walton, Dan Griffith Fights for Your Right to Elect Judges, CITY PAGES, http://www.citypages.com/2008-10-29/news/dan-griffith-fights-for-your-right-to-electjudges/.

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popular control. Similarly, members of the United States Senate were to be elected by state legislatures. Public sentiment would then be dispersed through both the state legislatures and the Senate, insulating the act of confirmation from control by any faction. Once selected, judges would be further insulated from public sentiment through lifetime tenure for good Behaviour and a ban on reduction of judicial salaries.29 The intentions of the founders were clear in their explicit rejection of the idea that judges should be responsive or accountable to the public. Alexander Hamilton wrote:
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.30

While the reference to democratic ideals may be good politics and effective strategy for advocacy organizations, there is simply no evidence to support the claim that democracy requires the right to vote for judges. Indeed, there appears to be no support whatsoever for the practice of electing judges until the period of Jacksonian reform. Finally, the proposition that selection of judges in a democratic system should be reserved to the citizens is found in no other nation on the earth to the degree that it is found in the United States. Among the worlds democracies, few countries elect any judges at all. Some small cantons in Switzerland elect judges, and a small number of appointed judges in Japan face retention elections;31 in France, judges of the commercial courts

29. U.S. CONST. art. III, 1. 30. THE FEDERALIST NO. 78 (Alexander Hamilton). 31. Adam Liptak, U.S. Voting for Judges Perplexes Other Nations, N.Y. TIMES, May 25, 2008, http:// www. nytimes. com /2008/ 05/25/ world/ americas/ 25iht- judge. 4. 13194819. html.

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are elected by manufacturers and tradesmen.32 In contrast, 87% of all state court judges in the United States face some form of popular election,33 and 53% are selected and/or retained in contestable34 elections.35 Hans Linde, a retired justice on the Oregon Supreme Court, opined that [t]o the rest of the world, . . . American adherence to judicial elections is as incomprehensible as our rejection of the metric system.36 Most countries rely on a professionalized judiciary, where individuals are trained and tested in a unique program of study to prepare for the bench.37 Regarding both our lack of professional training for judgeships and our system of judicial elections, Mitchel Lasser, says The rest of the world . . . is stunned and amazed at what we do, and vaguely aghast. They think the idea that judges with absolutely no judge-specific educational training are running political campaigns is both insane and characteristically American.38 If election of judges is a central component of democratic government, then it appears that democracy has been woefully absent in the world. In this respect at least, America truly is exceptional.

32. France Judicial System, MAPS OF THE WORLD, http://www.mapsofworld.com/ france/politics/judicial-system.html. The idea of an elected judiciary was debated after the French Revolution, but was quickly dismissed as a bad idea. See Liptak, supra, note 31. 33. This includes both contestable elections and retention elections. 34. As discussed below, the word contestable is used rather than contested. As Nelson reports, less than 22% of all contestable general jurisdiction trial court races from 2000-2008 were actually contested. Id. at 8, 15. The rates of contestation vary by state, with California and Minnesota having the least competition (8% and 9% respectively), and New York featuring the highest rate of competition, with 80% of all contestable elections drawing a challenger. It is important to note that New York is the only state where a majority of races are contested, likely as a result of the unique party nominating convention system used to reach the ballot. Id. at 20. The next highest rate of contestation is Nevada, at 46%. Id. at 16, fig. 2. Nelson, Uncontested and Unaccountable? Rates of Contestation and The Quest for Accountability in General Jurisdiction Trial Courts , ___ JUDICATURE (forthcoming 2011), (manuscript at 15) available at http://jedi.wustl.edu/data-generaljurisdiction-trial-courts.php. 35. Roy A. Schotland, Should Judges Be More Like Politicians?, 39 CT. REV. 1 (2002). 36. Liptak, supra note 31. 37. Id. 38. Id.

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B. The Nature of Judicial Power Has Changed, Necessitating Popular Control The Framers clearly anticipated that the judicial branch would be the least dangerous branch,39 exercising neither the power of the purse nor of the sword.40 But judicial power has clearly changed over time, most notably with the formalization of judicial review. While some scholars have focused their ire directly on the doctrine of judicial review, arguing that the practice of declaring legislative acts void under the constitution is itself illegitimate in a democratic society,41 a more prominent line of argument posits that the development of judicial review has expanded the policymaking role of the courts and, as such, increased the need for more and better means of popular control. The substance of the debate over judicial review is beyond the scope of the current inquiry, but the implications are directly relevant to the call for judicial elections. Advocates of elections see the courts as policymakers, and the power of the courts to overrule the will of elected representatives through the power of judicial review makes this policymaking authority not just an abstract possibility but a real threat to the legitimacy and purpose of democratic institutions. As such, these advocates claim that the only way to counter this judicial power is to develop mechanisms whereby the courts are directly accountable to citizens through direct election. Consider, for example, the following claims:
[It is a] myth that courts are apolitical and do not make policy. The Legal Realists exploded that myth and showed that judges do make policy. This is especially true of judges on states highest courts.42

39. See id. 40. THE FEDERALIST NO. 78 (Alexander Hamilton). 41. See, most notably, Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346 (2006), and Allan C. Hutchinson, A Hard Core Case Against Judicial Review, 121 HARV. L. REV. 57 (2008); see also LARRY D. KRAMER, THE PEOPLE THEMSELVES (2004). For an alternative perspective, see Richard H. Fallon, The Core of an Uneasy Case for Judicial Review, 121 HARV. L. REV. 1963. 42. Republican Party of Minn. v. White, 416 F.3d 738, 747 (8th Cir. 2005) (quoting Stephen J. Ware, Money, Politics and Judicial decisions: A Case Study of Arbitration Law in Alabama, 30 CAP. U.L. REV. 583, 594 (2002).

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The courts policy-making power is, of course, ever subject to the power of the legislature to enact statutes that override such policy. But that in no way diminishes the reality that courts are involved in the policy process to an extent that makes election of judges a reasonable alternative to appointment.43 [J]udges have considerable discretion and should be held accountable for their choices, at least at the state level where we would expect a close connection between public preferences and public policy, as well as significant variations in law across the states . . . . judicial elections are democracy-enhancing institutions that operate efficaciously and serve to create a valuable nexus between citizens and the bench.44 Judges have become policy makers in our society. They decide all sorts of issues from fiscal issues, such as school funding and state appropriations, to social issues such as criminal sentences and child custody. As public policy makers they should be accountable to the public and to your vote. That is a simple concept.45

Whether election advocates explicitly or implicitly reference the doctrine of judicial review, they widely adopt the basic premise that the nature of judging is policymaking and that judges are, like all policymakers, politicalthey exercise their authority with considerable discretion and, in doing so, they rely heavily on individual predispositions. Although it may be true that were all legal realists now, Tamanahas historical investigation of the realists is insightful:
Realism refers to an awareness of the flaws, limitations, and openness of lawan awareness that judges must sometimes make choices, that they can manipulate legal rules and precedents, and that they can be influenced by their political and moral views and by their personal biases (the skeptical aspect). But realism about law and judging also conditions this more skeptical awareness with the understanding that legal rules nonetheless can work; that

43. Id. at 747. 44. CHRIS W. BONNEAU & MELINA GANN HALL, IN DEFENSE OF JUDICIAL ELECTIONS 2 (2009). 45. WERSAL FOR JUSTICE, supra note 26.

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judges can abide by and apply the law; that there are practice-related, social, and institutional factors that constrain judges; and that judges can render generally predictable, legally based decisions (the rule-bound aspect). A realistic view holds that the rule-bound aspect of judging can function reliably notwithstanding the challenges presented by the skepticism-inducing side, although this is an achievement that must be earned, is never perfectly achieved, and is never guaranteed.46

Further, he writes of Llewellyn,


A skilled lawyer asked to predict the fate of a case on appeal, Llewellyn conjectured, ought to average correct prediction of outcome eight times out of ten, and better than that if he knows the appeal counsel on both sides or sees the briefs. When identifying the sources of this high degree of reconcilability, Llewellyn elaborated on several steadying factors: judges are indoctrinated into the legal tradition such that [t]hey see things . . . through lawspectacles; much legal doctrineincluding rules, principles, and statutesis reasonably clear and well developed; judges follow accepted doctrinal techniques, strive to produce a just result, and strive to come up with the right legal answer; judges sitting together on an appellate bench interact to smooth the unevenness of individual temper; and judges desire and commitment to live up to the obligations of the judicial roleto earn the approval of their legal audience for appropriate judicial behaviorand their desire to avoid reversal by a higher court, prompt judges to engage in a good-faith effort to conduct an unbiased search for the correct legal result.47

To overstate the skepticism of the realists and reduce the act of judging exclusively to personal and political preferences of individual judges does a disservice to the intellectual contributions of the movement.48 Furthermore, political science research purporting to demonstrate that judging is, in practice, political49 is similarly
46. Brian Tamanaha, Understanding Legal Realism, 87 TEX. L. REV. 731, 732. 47. Brian Tamanaha, The Distorting Slant In Quantitative Studies of Judging, 50 B.C.L. REV. 685, 697-98 (2009). 48. Id. at 703. 49. In the field, this is referred to as the attitudinal model of judicial decisionmaking. See, e.g., JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME

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overstated. The vast majority of this research is dedicated to studying the United States Supreme Court,50 which is undeniably the one court in the country with virtually unlimited discretion in its rulings, as Supreme Court Justices have the security of life tenure and there is no method to appeal the Courts rulings. Furthermore, the premise of political decisionmaking is built into the methodology of these studies. Judicial decisions and voting are coded as liberal or conservative based on the policy outcome of the case without consideration of the facts of the case or the legal arguments presented by the parties. In short, the law has been absent from political-science studies of judicial decisionmaking, predictably resulting in the conclusion that law doesnt matter and personal ideology plays a significant role in judges decisions. In fact, research by Bailey and Maltzman reintroduces the notion of legal decisionmaking and, in so doing, finds that after accounting for legal principles, the attitudinal model is significantly weaker than initially thought because law significantly constrains the decisions of Supreme Court Justices, even with the high level of discretion given to the Supreme Court.51 Overstating the political nature of judging has significant implications for the debate over judicial selection. Even if we accept the premise that all judging is a political act, popular election of judges creates an untenable circumstance by creating
COURT AND THE ATTITUDINAL MODEL REVISITED (2002); Jeffrey Segal & Albert Cover, Ideological Values and the Votes of U.S. Supreme Court Justices, 83 AM. POL. SCI. REV. 562 (1989). 50. Prominent exceptions include FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF APPEALS (2007), and Sunsteins examination of all federal appellate judges, CASS SUNSTEIN ET AL. ARE JUDGES POLITICAL? AN EMPIRICAL ANALYSIS OF THE FEDERAL JUDICIARY (2006). Regarding Federal District Courts, see ROWLAND & CARP, POLITICS AND JUDGMENT IN FEDERAL DISTRICT COURTS (1996). Few studies have examined state courts, although Paul Brace and Melinda Gann Hall find that state supreme court death penalty cases are affected by the political environment including the electoral environmentas well as party affiliation. Paul Brace & Brent D. Boyea, Judicial Selection Methods and Capital Punishment in the American States, in RUNNING FOR JUDGE: THE RISING POLITICAL, FINANCIAL, AND LEGAL STAKES OF JUDICIAL ELECTIONS 186 (Matthew J. Streb ed., 2007). 51. Michael Bailey & Forrest Maltzman, Does Legal Doctrine Matter?: Unpacking Law and Policy Preferences on the U.S. Supreme Court, 102 AM. POL. SCI. REV. 369 (2008); see also Brandon Bartels, The Constraining Capacity of Legal Doctrine on the U.S. Supreme Court, 103 AM. POL. SCI. REV. 474 (2009).

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a judiciary that functions exclusively as a second, and competing legislature. For those concerned about the power of judicial review, popular elections create a super legislature that is superior to existing legislative institutions, inviting extraordinary judicial power far outstripping any judicial role foreseen by the creators of the Republic, undermining the separation of powers and rendering virtually all other representative authority obsolete for all intents and purposes. This is exactly the situation that election proponents claim to be opposing. This, in turn, promotes greater political influence in the courts, which is a breakdown in the consistency and logic underlying the rule of law. C. Given the Alternatives, Elections Work Better Frequently, arguments in favor of judicial elections are couched in criticism of other methods of judicial selection.52 There are two prominent lines of argument: (1) merit-selection systems are flawed and therefore, elections are preferable and; (2) the differences between individual judges chosen through different selection mechanisms are minimal and therefore we should default to popular control as it is more consistent with democratic values. Both lines of argument are flawed. Critics of merit selection raise multiple concerns about the use of nominating commissions, few of which are legitimate. Most frequently, merit-selection systems are said to simply replace the transparent politics of elections with the secretive politics of the nominating commission. A small group of critics have emerged to level a related criticism, focusing on the role of lawyers in commission deliberations. Other critiques include the uncontested nature of retention elections.53 Merit selection has much to offer, as detailed below, and critics too often discount the arguments in favor based upon their own normative grounds. For the sake of brevity, I discuss

52. It is important to note that advocates of any form of selection generally use criticism of other methods as a means to advance their argument, a form of debate selfconsciously adopted in this article. 53. As noted, the vast majority of contestable elections are uncontested, so the concern about uncontested retention elections seems to be somewhat disingenuous. See supra note 31.

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the concerns of merit-selection opponents alongside the arguments offered in favor of merit selection below. IV. A DIFFERENT PERSPECTIVE ON CHOOSING JUDGES While an electoral system will necessarily bring public politics to bear on all decisions, the unique nature of the judiciary demands an effort to depoliticize the courts to every extent possible. Those who argue that politics will always inform judicial decisionmaking ignore the very real constraints of the law, as discussed above. While some judges are granted significant discretion, the vast majority of state court judges are operating in an institutional setting that is highly structured, and which limits this discretion in both degree and kind. For example, a state trial court judge is restricted by rules of evidence, sentencing guidelines, and the principle of stare decisis, leaving little latitude to bring nonlegal factors into their decisions.54 Even at the appellate level, few cases allow a judge unfettered autonomy to deviate from established legal principles. Furthermore, the appeals process imposes a significant constraint insofar as it permits a constant systematic mechanism for error correction, and judges will lose prestige and respect if they are overturned regularly. The ideal of judicial independence as a cornerstone for the rule of law is embodied in all sustained discussions of Republican government. That ideal may never be fully realized, and few individuals involved in the debate over judicial selection would argue that there is any perfect form of judicial selection. After all, the nature of a judicial system is that someone must, by definition, be granted the authority to populate the bench; whoever is vested with that authority cannot be immune from the social and political factors that inform all forms of decisionmaking power. Merit selection was introduced as a way to ensure high quality judges, guarantee a measure of
54. These limits on trial court decisionmaking are often overlooked in electoral contests for the bench, where judges are routinely criticized for criminal decisions regardless of the legal facts and relevant precedent that informs their decision. These campaign charges are often highly misleading, suggesting to voters that a judge is responsible for legal decisions that are simply an application of widely r espected legal rules.

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public accountability, and remove overt political influences from the selection process. To achieve these goals, the original merit-selection system included three important elements: (1) a nominating commission made up of lawyers and nonlawyers who would evaluate applicants for a judgeship and would determine which individuals were most qualified for and capable of judicial service; (2) appointment by the governor from a list of individuals submitted by the nominating commission; and (3) regular retention elections in which the public would determine whether the judge would remain on the bench. Each of these elements deserves additional discussion. A. The Nominating Commission The nominating commission has been said to be the key of the merit-selection process.55 To ensure highly qualified individuals on the bench, a collection of lawyers and nonlawyers would evaluate each applicant for a judgeship and make nominations to the governor or other appointing authority.56 This nominating commission would serve as an independent nonpolitical body to assess the skills, experience, temperament, and professional ability of potential judges, and would combine lawyers, who possessed legal expertise and knowledge of the judicial process, and nonlawyers, who would express the perspective of citizens outside the legal system. This group would, after reviewing all applications, determine which of the

55. ALLAN ASHMAN & JAMES J. ALFINI, THE KEY TO JUDICIAL MERIT SELECTION: THE NOMINATING PROCESS (1974). 56. In virtually every state that uses a commission-based appointment system, the governor has the authority to make an appointment. See Methods of Judicial Selection, supra note 19. In one unique instance, South Carolina has established a nominating commission for purposes of legislative appointment, but the makeup of the commission differs substantially from a traditional merit selection process. See Methods of Judicial Selection: South Carolina, AM. JUDICATURE. SOCY, http://www. judicial selection.us /judicial_selection/methods/judicial_nominating_commissions.cfm?state=SC. In the original proposal for merit selection, put forward by Albert Kales, the Chief Justice would be responsible for appointments. Albert Kales, Address to the National Conference on Causes of Popular Dissatisfaction With the Administration of Justice (1914), reprinted in 20 AM. JUDICATURE. SOCY 178 (1937). Political scientists Harold Laski proposed that the governor would be the appointing authority in 1926. ASHMAN AND ALFINI, supra note 55, at 11.

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individuals was most highly qualified and would submit a list of names to the appointing authority (usually the governor). Today, there are as many variations on the practice of merit selection as there are states that use merit selection (or commission-based appointment).57 In some states, the commission is made up of more lawyers than nonlawyers 58; in some states, nonlawyers outnumber lawyers.59 In some states, commissioners are required to represent the geographic, gender, and/or ethnic diversity of the state60 in others, there are no rules whatsoever about the demographic makeup of the commission.61 In some states, bipartisanship is required;62 in some states, it is not.63 In some states, the commission operates with total transparency;64 in some states, the commission is required by statute or constitutional provision to maintain the confidentiality of materials, deliberations, and/or voting.65 Simply put, there is no single merit-selection system, but rather a myriad of variations on the basic premise of merit selection. Recent criticism of nominating commissions centers on the role of politics within commission deliberations and the role that lawyers play in the process. There have been assertions throughout the history of merit-selection systems66 that the process merely transfers the politics into a venue behind closed doors and outside of public view.67 A related charge is that
57. JUDICIAL MERIT SELECTION: CURRENT STATUS, AM. JUDICATURE. SOCY, available at http://www.judicialselection. us/ uploads/ documents/ Judicial_Merit_Charts_ 0FC20225EC6C2.pdf 58. See id. at 9 (detailing selection in Kansas). 59. See id. at 8 (Arizona). 60. See id. at 9 (Iowa and Indiana). 61. See id. at 8 (Alaska). 62. See generally JUDICIAL MERIT SELECTION: CURRENT STATUS, supra note 57. 63. See generally id. 64. See JUDICIAL MERIT SELECTION: CURRENT STATUS, supra note 57, at 16 (Arizona). 65. See id. at 16 (Missouri and Hawaii). 66. Beginning with the debate to adopt the Missouri Non-Partisan Court Plan in 1940. See Jack W. Peltason, The Merits and Demerits of the Missouri Court Plan, in SELECTED READINGS: JUDICIAL SELECTION AND TENURE 95, 96 (1973). 67. Jack W. Peltason writes The Missouri Court Plan will not take the courts out of politics as claimed, but instead it will result in a more insidious type of politics. . . . Under the system of popular election, the task of the political minded and those who wished to dominate the judges was much more difficult because the right to pick judges was not the monopoly of a few. . . . [T]he type of politics that

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merit-selection systems were designed to allow the bar complete political control over the nomination of judges through the lawyer members of the commission, who are said to dominate the process. Today, the charge that lawyer members control the selection process has received considerable attention, most notably from a small group of lawyers and law professors affiliated with the Federalist Society.68 This claim has, most recently, formed the basis for three separate lawsuits challenging merit-selection systems.69 Research on nominating commissions, however, demonstrates that these claims are far weaker than is typically admitted.70 Most justify their claims using a 1969 study of Missouris commission, which found instances of panel wiring, whereby the commissioners deferred to gubernatorial pressures and always nominated the governors preferred candidate amid an arbitrary list of names that would not be picked.71 In the forty-two years between that report and todays debate, several more comprehensive studies have been conducted, revealing a much different picture. In 1974, Ashman
will ensue from the Missouri Court Plan will be of the worst sort. Any politics that existed under the old system of direct popular election was of the out-in-the-open brand. The effect of the Missouri Court Plan is not to take the courts out of politics, but to drive what politics exists underground. Politics will be come the secret, backroom type. Jack W. Peltason, The Merits and Demerits of the Missouri Court Plan, in SELECTED READINGS: JUDICIAL SELECTION AND TENURE 95, 96 (1973). 68. For example, Stephen J. Ware writes that [Lawyer] commissioners are not selected by officials elected under the democratic principle of one person one vote. Rather, they are selected by a small, elite group: the bar. For this reason, judicial selection under the Missouri Plan lacks democratic legitimacy. Steven Ware, The Missouri Plan in National Perspective, 74 MO. L. REV. 751, 764 (2009). 69. All three cases have been associated with James Bopp and the James Madison Center in a coordinated effort. The federal courts have consistently rejected these claims. See, e.g. Dool v. Burke, No. 10-1286, 2010 WL 4568993 (Sept. 14, 2010 D. Kan). 70. For a notable exception, see Brian T. Fitzpatrick, The Politics of Merit Selection, 74 MO. L. REV. 675 (2009) (finding that the nominating commission is more likely to nominate Democrats than Republicans). It is worth noting two significant methodological flaws in Fitzpatricks research. First, he does not a ccount for the pool of applicants as a whole, which could consist of more Democrats than Republicans. Second, his coding of ideology or party affiliation is based on voting records in party primaries in Tennessee; where large portions of the state are effectively dominated by one political party, and primary voting may reflect political realities more than sincere ideological beliefs. 71. RICHARD A. WATSON & RONDAL G. DOWNING, THE POLITICS OF THE BENCH AND THE BAR: SELECTION UNDER THE MISSOURI NONPARTISAN COURT PLAN 108 (1969).

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and Alfini reported that only two percent of the nominating commissioners they studied indicated that political influences were regularly included in commission deliberations. Furthermore, they write that
Of the 49% [of commissioners surveyed] who stated that political influences or considerations were introduced (however infrequently) into commission deliberations, only 7% (3% of all respondents) believed that when such considerations actually were introduced they were of decisive importance.72

In 1993, Joanne Martin conducted a survey of nominating commission chairs in thirty-four states and the District of Columbia and found that 48% of them indicated that political influences were never part of commission decisionmaking; only 1% reported that they were always part of commission deliberations.73 Similarly, studies of nominating commissions simply do not validate claims that the bar dominates the process. Ashman and Alfini report that responses to our questionnaires reveal that very few lay members felt dominated by the lawyers and . . . equally few lawyer members felt the lay members to be superfluous.74 A report out of Massachusetts similarly found that:
While laymen had to defer to lawyer opinions about legal experience, they had strong, independent views and were by no means dominated or manipulated by the lawyers. Lawyer perceptions of the lay members confirm the capacity and desirability of lay participation. Most felt that lay people provided a more detached view of the system, bringing a consumer citizen perspective to bear, and counteracting the chumminess that tends to exist among lawyers.75

Certainly, more research needs to be done, but claims about the role of politics and/or the domination of the bar find weak
72. ASHMAN & ALFINI, supra note 55, at 75-76. 73. JOANNE MARTIN, MERIT SELECTION COMMISSIONS: WHAT DO THEY DO? HOW EFFECTIVE ARE THEY? 3 (1993). 74. ASHMAN & ALFINI, supra note 55, at 25. 75. Robertson and Gordon, Merit Screening of Judges in Massachusetts: The Experience of the Ad Hoc Committee, 58 MASS L.Q. 131, 138 (1973), quoted in ASHMAN & ALFINI, supra note 55, at 3.

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support in the existing research about how nominating commissions operate. Nominating commissions mitigate against the unfettered political control by a governor and unelected staff members in the governors office in those states that choose judges through gubernatorial appointment without a nominating commission. At the same time, they can integrate legal expertise into the process, balancing it against the perspective offered by informed citizens who dedicate their time to a full and considered evaluation of the applicants. This is not to suggest that qualified individuals will not reach the bench through electionsand many do. But, the full and thoughtful exchange of ideas within a nominating commission will (and should) prioritize the qualifications of a potential judge over the political ability of the judge. Certainly, merit-selection systems may contain a small-p political element in that individuals who have extensive networks of support, who work within their community and are recognized for that work, and have strong professional skills will be more likely to succeed in getting a nod from the commission.76 But these skills are often different than the skills rewarded in an electoral environment, where appealing to a party base, preparing negative ads, and engaging in sound-bite politics prevails. The former skill set is more likely to correlate with a collegial work style, a willingness to engage others with respect, and a genuine spirit of public serviceall qualities that are extremely important to success in a judicial position. B. Appointment from Commission Recommendations The second stage of a merit-selection process comes when the governor (or other appointing authority) receives the list of recommended individuals. Generally speaking, the governor is limited in the choice of who will ultimately be appointed in that she must appoint one of the individuals recommended by the commission.77 This restriction on the appointment function is
76. Linda M. Merola and Jon B. Gould, Navigating Judicial Selection, 93 JUDICATURE (Mar.-Apr. 2010). LAWYERS COMMITTEE FOR CIVIL RIGHTS UNDER LAW, ANSWERING THE CALL FOR A MORE DIVERSE JUDICIARY: A REVIEW OF STATE JUDICIAL SELECTION MODELS AND THEIR IMPACT ON DIVERSITY (2005) 21. 77. This is not always the case. In some states, the governor may send the list of recommendations back to the commission and request a second slate of candidates. In a

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designed to guarantee that only those applicants deemed most qualified will be appointed to the bench, ensuring that the governor does not substitute the reasoned deliberation of the commission with personal, political, or partisan motives for appointment. In several states, the adoption of merit selection occurred amid extreme partisanship in gubernatorial appointments, making the limitation on a governors choice central to the success of reform. The case of Kansas is illustrative. When it was admitted to the Union in 1861, Kansas adopted judicial elections, but permitted gubernatorial appointment for interim vacancies. In the 1956 election cycle, the states Republican party was fragmented, and Republican governor Fred Hall lost a primary challenge; the Republican nominee went on to lose the general election to Democrat George Docking. Chief Justice Bill Smith, a supporter of Hall, wanted to retire from the bench, but was uncertain that his successor, through an election, would be ideologically like-minded. Knowing that he would no longer be governor, Hall devised and negotiated a plan to allow the chief justice to retire. Chief Justice Smith retired on December 31, Governor Hall resigned on January 3, and Lieutenant Governor John McCuish took office for eleven days prior to Dockings inauguration. During his eleven day tenure as governor, McCuish performed only one official act: the appointment of former Governor Hall as Chief Justice of the Supreme Court.78 This triple play provided the impetus for a constitutional amendment adopting merit selection, whereby the governors discretion would be explicitly limited by the nominating commissions recommendations. Merit-selection systems do constrain the governor, but this does not mean that the governor has no power. In fact, some governors have recognized the importance of the work of commissions, noting that it diffuses responsibility, ensures competence, and minimizes the influence of extreme factions

few states, the governor may choose any individual who has been recommended in the course of the past several vacancies for the same court. See JUDICIAL MERIT SELECTION: CURRENT STATUS, supra note 57; see also Methods of Judicial Selection, supra note 56 78. See JUDICIAL MERIT SELECTION: CURRENT STATUS, supra note 57; see also Methods of Judicial Selection, supra note 56.

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within their own party.79 In nine states, governors have, by executive order, voluntarily created or maintained existing merit-selection processes to select judges.80 C. Retention Elections Albert Kales proposed retention elections as a component of his merit-selection system as a method to retain a mechanism for public accountability, even absent a contestable race. In a retention election, a judge who has served on the bench is subject to a yes or no vote to determine whether she will serve another term of office. Merit-selection critics claim that retention elections are elections in name only81 as they result in a very small number of judges being denied a subsequent term.82 It is true that most incumbent judges who are subject to retention will win another term in office. Of the 6306 state court
79. For example, in the late 1990s, The American Judicature Society conducted a workshop with Iowa nominating commissions, where then Governor Branstad told the assembled commissioners that their work was essential because it made it impossible for him to make a mistake and enabled him to rebuff voices that would have him appoint a judge because of political affiliations or interest groups pressures. 80. See JUDICIAL MERIT SELECTION: CURRENT STATUS, supra note 57. The nine states are Delaware, Georgia, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Ohio, and Wisconsin. Because they are created by executive order, these commissions are generally populated entirely by individuals chosen by the governor, but the exception to this rule is New York, where commissions are created by the governor, legislative leaders, the attorney general, and the state bar. The governor may also have more discretion in selecting an individual, though even in a system created by executive order, this discretion is generally not unqualified. For example, in Delaware, the governor may reject the first list of recommendations and request a supplemental list from the commission. In Maryland the governor may appoint someone from any list submitted for the same court in the past two years, provided that applicant information has been updated. In Massachusetts and New Hampshire, the governor may request additional names from the commission, and in Georgia, the governor is not bound by the list of recommendations. This discretion, however, is rarely exercised, and governors generally choose from the list submitted by the commission. See generally Id. at tbl. iii. 81. BONNEAU & HALL, supra note 44, at 22. See, e.g., William Jenkins, Jr., Retention Elections: Who Wins When No One Loses? , 61 JUDICATURE 79, 85 (1977) (Thus, the system of merit retention protects the incompetent or lazy judge as well as the courageous, highly dedicated, and skilled jurist and therein lies the heart of the criticism of merit selection.). This could be said of nearly any election where incumbe nts do well (including House and Senate elections, state legislative elections, local elections, or state trial court races as discussed here). 82. For a general discussion of the critiques against retention elections, see William K. Hall & Larry T. Aspin, What Twenty Years of Judicial Retention Elections Have Told Us, 70 JUDICATURE 340 (1987).

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judges who were up for retention between 1964 and 2006, only fifty-six (less than 1%) were defeated.83 But this does not inherently diminish the power of retention elections as a method of accountability. Consider the fact that nationwide, less than 22% of all state judges serving on general jurisdiction trial courts who are subject to a contestable election actually draw a challenger. In some states, over 90% of these judges run unopposed, meaning that over 90% of trial court judges on courts of general jurisdiction are reelected by default,84 yet we do not hear complaints that these elections are elections in name only. Furthermore, there is nothing inherently wise, virtuous, or democratic about removing sitting judges from office. Nor is the rate of reelection a valid metric to evaluate the democratic function of an election. Members of the United States House of Representatives were the only governmental actors who were to be directly and explicitly accountable to the public in the original constitutional design. Unlike judges, the Framers envisioned House members to be the voice of the people, directly reflecting popular opinion. Yet House incumbents are often reelected at a rate that is very nearly comparable to state judges standing in retention elections. In the 1998 congressional elections, for example, only 6 of 401 House incumbents (1.5%) lost their seats.85 Although a small number of scholars has highlighted the high rate of reelection for House members, we do not see a public outcry claiming that these are illegitimate elections, nor do we see claims that inserting more partisanship,

83. Of the fifty-six judges who were defeated in retention elections, 51.8% of them served in Illinois, which is the only state to require a 60% threshold to retain a judicial seat. Id. 84. Nelson, supra note 34, at 8. Nationwide, 34.18% of general jurisdiction trial court judges up for partisan election and 14.8% of those up for nonpartisan election face challengers. Id. at 17. New York and Nevada have the highest levels of contested elections (85% and 46% respectively). Id. at 16. New York uses a unique party convention nomination process which virtually guarantees challengers, so it is unsurprising that it is the only state with a majority of trial court elections contested. Id. California and Minnesota have the lowest rates of competition, with 8% and 9% of judges generating a challenger respectively. Id. 85. On average, over 95% of House incumbents are reelected every two years. See PAUL S. HERRNSON, CONGRESIONAL ELECTIONS: CAMPAIGNING AT HOME AND IN WASHINGTON (5th ed. 2007). While 1998 was particularly favorable to incumbent lawmakers, it is not an extreme outlier. See id. at 25.

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more advertising, or more campaign money would significantly improve House elections. Retention elections may not be the accountability mechanism that ardent supporters of popular election seek. In some ways, retention elections may be superior mechanisms of accountability, when one considers the exceptionally low rates of opposition in contestable elections. Similarly, retention elections deviate from the original intent of an independent judiciary to allow for a public voice in the staffing of the bench. As such, retention elections represent a compromise between complete independence of judges and unfettered politicization of the courts through costly elections where judges are subject to shifts in opinion that undermine consistency and fairness in the law. V. THE OUTCOME: DIFFERENT METHODS, DIFFERENT JUDGES Judicial selection methods directly reflect the preferences of the political community and express the values that guide our visions of the judiciary. All else being equal, democratic governments tend to prioritize public selection of public servants. The key caveat, of course, is all else being equal, and in the case of judicial selection, that condition does not hold. One of the core assumptions of merit selection is that it will use merit to promote judges to the bench, therefore resulting in fundamentally different judges. Although we may disagree about what merit is, campaigns for judicial selection reform frequently reference the quality of the bench as a priority. If the judges selected through contestable elections are fundamentally the same as those appointed in merit-selection systems, then we may opt for judicial elections with no qualms about the impact this choice has on the integrity and neutrality of the courtsbut this is simply not the case. In fact, there are predictable ways in which merit-selected judges differ from their elected and appointed colleagues. Early research on the topic of how commission-based appointment systems influence the types of judges who serve found few differences in educational and geographic

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backgrounds.86 But this research examined characteristics that are not directly related to the goals of merit-selection systems. More recent studies of judicial traits indicates that there are some systematic differences in those qualities most closely related to judicial service.87 The Chamber of Commerce Institute for Legal Reform ranks all states based on a survey of practicing attorneys. In 2010, the survey found that four of the top five states in the overall rankings selected judges through a merit-selection process.88 In contrast, each of the five lowest ranked states use competitive elections.89 On judges impartiality, all of the lowest ranked states use contestable elections, while three of the top five use merit selection. Assessments of judges competence show a similar pattern, with all of the five lowest ranked states selecting judges through contestable elections and only one of the top five ranked states using contestable elections. The rankings are a clear indication that among those who practice in the states, merit selected judges are superior in terms of their fairness, competence, and overall quality. Additional research by Choi, Gulati, and Posner studies the work product of judges in the states, seeking to expand the assessment of judicial performance beyond practicing corporate counsel. Their rankings, however, demonstrate similar trends, as four of the top five ranked states use merit selection to choose their judges.90 While the research does demonstrate that elected

86. See Bradley C. Canon, The Impact of Formal Selection Processes on the Characteristics of JudgesReconsidered, L. & SOCY REV. (1972); Philip L. Dubois, The Influence of Selection System and Region on the Characteristics of a Trial Court Bench: The Case of California, JUST. SYS. J. (1983). 87. Rachel Paine Caufield, What Makes Merit Selection Different? 15 ROGER WILLIAMS U. L. REV. (2010). 88. The top five states are Delaware, North Dakota, Nebraska, Indiana and Iowa. North Dakota uses nonpartisan elections. It is important to note that although all appellate judges in Indiana are selected through merit selection, judges for the courts of general jurisdiction are selected through partisan elections. 89. The lowest five states are West Virginia, Louisiana, Mississippi, Alabama, and California. Appellate judges in California are selected by the governor, subject to confirmation by the Commission on Judicial Appointments. Although some Californians classify their selection system as a merit selection system, the absence of a formalized nominating commission clearly differentiates the California appointment system from a merit selection process. 90. Stephen J. Choi, et al., Which States Have the Best (and Worst) High Courts), John M. Olin Law and Economics Working Paper No. 405 (2008), available at http://papers

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judges write more opinions, the courts with the best reputation, as measured by out of state citations, are Delaware and California.91 Thus, despite the fact that elected judges produce more opinions, appointed judges produce more respected opinions, as measured by overall quality and court reputation. Finally, the judicial function assumes ethical behavior, and any system that depends upon human minds to interpret the law must appreciate adherence to ethical standards as a crucial component of the rule of law. A growing body of research demonstrates that on the whole, merit selected judges are disciplined less frequently than their elected counterparts.92 A study of New York judges found that elected judges were substantially more likely to be disciplined for ethical lapses, and a report by the California Commission on Judicial Performance found that elected judges were disciplined at higher rates than their merit-selected peers on the bench.93 A similar study in Florida found that 73% of judges who were disciplined for ethical violations were elected to their seat.94 Most recently, research by the American Judicature Society demonstrates that merit-selected judges are less likely to be charged with ethical lapses, and, when they were, they were significantly more likely to receive the least severe sanctions.95 These findings indicate that all judges are not the same, and there are predictable differences between those judges chosen in elections and those selected through merit-selection processes.
.ssrn.com/sol3/papers.cfm?abstract_id=1130358. The top five states are Rhode Island, New York, Oregon, Utah, and Oklahoma civil courts. Of these, Oregon is the only state to elect its judges in nonpartisan contestable elections. 91. Delaware has adopted merit selection by executive order, appellate judges in California are selected by gubernatorial appointment with confirmation by the Commission on Judicial Appointments and trial court judges are selected through nonpartisan elections. 92. It is important to note that these studies are exceptionally difficult, as different states have different levels of enforcement and different ethical standards. Therefore, most studies focus attention on a single state where judges are both appointed and elected. This is frequently the case in states that use merit selection only to fill interim vacancies. 93. Summary of Discipline Statistics, 1990-1999, CAL. 2000 COMMN ON JUD. PERFORMANCE, qvailable at http://cjp.ca.gov/userfiles/file/ Miscellaneous/Report_Sum_Stats_90to99.pdf. Zeidman, Steven. 2004; To Elect or Not to Elect: A Case Study of Judicial Selection in New York City 1997-2002, 37 U. MICH. J.L. REFORM 791, 791-836. 94. Martha W. Barnett, The 1997-98 Florida Constitution Revision Commission: Judicial Election or Merit Selection, 52 FLA. L. REV. 411 (2000). 95. BERKSON, supra note 8.

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Therefore, claims that selection system does not affect the quality of the bench are simply unfounded. Given the evidence, it is clear that merit selection proves effective at staffing the bench with high quality individuals. Taken as a whole, arguments that rely on criticism of merit selection to strengthen the case for judicial elections are shortsighted and overstated. Although the arguments may be an effective way to set up straw men, they ignore a substantial body of research. Evidence demonstrates that merit-selection systems are not dominated by the bar, and exhibit very low levels of political manipulation. Furthermore, merit-selection systems do produce high quality judges who exhibit adherence to ethical standards and produce respected legal analysis. Election advocates, in their zeal to defend a practice that explicitly politicizes the judiciary, often ignore the documented benefits of merit selection. VI. THE CURIOUS LOGIC OF JUDICIAL ELECTIONS AND THE CASE FOR MERIT SELECTION As a constitutional Republic, America has, since its inception, sought to embody the ideals of equality, fairness, and opportunity. But adherence to these ideals is not inherent in our politics. Rather, these foundational values are structured by choices that we, as a political community, make about our governmental institutions. As we consider the question of judicial selection, we must carefully and thoughtfully embark upon a full understanding of the implications. While judicial elections may ensure complete accountability of the judiciary, they imperil the longstanding and noble commitment we have to the rule of law. Elections undermine the separation of powers, invite special-interest-group pressure, and subvert due process rights. That they continue to generate such fierce advocacy among their supporters is as much a normative and ideological statement about what a small segment hopes to achieve through the politicization of the judiciary as it is a statement about the role of self-government. Republican government does not mean that all decisions are submitted to the will of the public, but that government

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institutions will structure the expression of public will and arrive at outcomes that balance majority rule against the rights of political minorities. Some may prefer to empower the public in the judicial power, knowing that it will lead to decisions that more faithfully represent their ideological, political, or financial interests. But the history of this country, like many others, is grounded in a belief that the judicial function is different than the legislative function, and that the courts alone are responsible only to the rule of law, rather than the popular will. This may position courts outside of the mainstream of majority opinion, but it does not and should not be used to justify institutional arrangements that violate our long history of legal tradition. President Ronald Reagan said that commitment to the preservation of our rights . . . often requires the lonely courage of a patriot.96 Our courts must be permitted the institutional independence that allows them to act as lonely patriots. Merit selection is not a panacea, and care must be taken to create a system that is consistent with the highest ideals of judicial neutrality and competence. If designed effectively, however, these systems can maintain the vital insulation and independence necessary for fair decisionmaking devoid of political and ideological manipulation that will ensure a qualified and neutral judicial branch consistent with our principled commitment to the rule of law. Merit selection can effectively prioritize judicial qualifications within a representative and transparent process that honors the unique nature of judicial power and minimizes the worst abuses of electoral or partisan politics. Voluntarily abandoning our longstanding dedication to neutrality and equality under the law to welcome the vagaries of politics into the judicial system will systematically undermine our collective vision of political freedom and justice. The arguments offered in favor of judicial elections misappropriate the language and intentions of our founders and misinterpret the judicial function. Judges were not intended to act as legislators, nor were they expected to be bound by notions of self-government to respond directly and exclusively to
96. President Ronald Reagan, Remarks at a White House Reception for District and Appellate Court Judges and Supreme Court Justices (Sept. 24, 1981), text available at http://www.presidency.ucsb.edu/ws/index.php?pid=44292.

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majority opinion. As a nation of laws and not of men, we should demand that judges be responsible to the law and that they work to preserve the rights and privileges embodied in the lawnot for the few, but for all Americans. While no method of selection can guarantee faithful adherence to the law, there is no doubt that we can more closely achieve our vision of principled legal decisionmaking when we prioritize legal expertise and experience, dignity, integrity, and respectful service to the community in our selection processes. Merit selection does this in a way that no other selection system does. We may differ in our notions of what good judging is, but our collective history tells us that it goes beyond serving as a mouthpiece for the most vocal and well-funded segments of society.