The "Missouri Plan," as it has also come to be known, has been surrounded by
controversy since it was first proposed. Controversy continues over the
advantages, disadvantages, and effects, if any, of merit plans on the quality
of the judiciary. The passage of time has not resolved the debate. Rather,
additional issues have arisen in response to legal, political, and
Excerpted with permission of the Miami Law Review.
Proponents of merit selection offer it as a preferable alternative to the
politics and fundraising inherent in judicial elections, but opponents
that the appointive process itself is political, and that, furthermore,
have a right to elect their judges. Despite lingering doubts by some about
merit selection's effectiveness in eliminating politics from judicial
and the lack of "hard" evidence that it results in the selection of better
judges, the merit plan has gained widespread acceptance. At this writing,
thirty-four states and the District of Columbia use the merit plan
for the selection of some or all of their judges. . .
There are several arguments raised in favor of merit selection. The first
addresses the weaknesses of both partisan and nonpartisan elective systems.
These methods do not allow for rational judicial selection: "Elections ...
are premised on a dubious assumption: that the public is attentive and well
informed about the candidates." In fact, it is common knowledge that the
public is uninformed about judicial candidates, and, worse still, some
believe that ethnic name recognition is the basis for many voting decisions.
Election contests are usually issueless and have low voter turnout. Most incumbents are easily reelected and often run unopposed.
Elections also discourage many well-qualified people from seeking judicial
office. "Many attorneys ... have a philosophical distaste for politics and
political campaigning, and thus refrain from seeking office." Elections
also compromise the independence of the judiciary; "judicial officers, unlike
other elected officials, should not be governed by the transient whims of the
which is likely to vote an unpopular, although competent, judge out of
for rendering correct but controversial decisions."
No less significant are
the problems associated with judges who must campaign and seek campaign
contributions and with getting court business accomplished during reelection
Arguments against merit selection are: (1) it deprives citizens of
their right of franchise; (2) it does not take politics out of judicial
selection; (3) nominating commissioners are not representative of the
population, and thus candidates will not be drawn from all segments of
(4) it results in life-tenure for judges, who are rarely removed in
elections; and (5) that elections serve to educate the public, whereas merit
selection does not . . .
Proponents of merit selection have found the road to its adoption a rocky
one. Proposed constitutional amendments have often failed in the
or, once passed the legislators, fallen at the polls. Passage of a
plan is nearly as difficult. Merit selection supporters in the legislature
discovered their colleagues often reluctant to support even a limited plan.
However, in states where the power to appoint judges to initial or interim
vacancies is vested in the governor, and where constitutional or statutory
attempts at merit selection have failed, executives have chosen an easier
of instituting a plan - the executive order. These orders have commonly
created a nominating commission to screen applicants for initial or interim vacancies
the courts over which the executive has appointing power
In most of the elective states the governor is empowered to fill judicial
other vacancies by appointment, with tenure of these appointed judges
until the next election or for a specified minimum time. Since forty to
percent of the judicial vacancies that occur are filled by the governor, even
the states that are nominally elective, a very substantial percentage, usually
majority, of the judges actually are appointed, and for these judges the
subsequent election is significant only with respect to tenure. . .
While the number of studies and available data regarding minority judges on
the bench continues to increase, it may still be too early to reach a
conclusion regarding which selection method enhances diversity. The signs
however, that merit selection is at least not an obstacle to diversity. In
when coupled with the trend to require that nominating commissions take
diversity on the bench into account when making their nominations, it is
likely that far greater numbers of minority and women judges will take the
under a merit plan than ever before.
If judges selected through different methods do, in fact, differ in their
personal characteristics, the question becomes whether those characteristics
affect judicial decision making. There is a strand of judicial
selection research that focuses on this
question. After considering the findings of fourteen studies, [one research
team] point[ed] out that attempts to relate background characteristics to
individual judicial decision making "have not been very successful." They
note, however, that "party affiliation has been the variable most
associated with judicial decision-making." They conclude with this
observation: "until background characteristics of judges are more
linked to decisional behavior, it would seem pointless to discover that
chosen by different methods of selection possess marginally different
when these different characteristics do not seem to affect voting behavior
policy outcomes." Subsequent studies have also failed to provide further
evidence of a correlation between the method of selection and judicial decision
making. . .
The ["Missouri"] Plan purports to provide representation for four general
interests concerned with judicial selection: the organized Bar, the judiciary,
the general public, and the state political system. Viewed in this context, it
is naive to suggest (as some of the Plan's
supporters do) that the Plan takes the "politics" out of judicial selection.
Instead, the Plan is designed to bring to bear on the process of selecting
judges a variety of interests that are thought to have a legitimate concern
the matter and at the same time to discourage other interests. It may be
that these interests will engage in the "politics" of judicial selection,
is, they will maneuver to influence who will be chosen as judges (1) because
such judgeships constitute prestigious positions for aspiring lawyers, and
because, in the course of making decisions, judges inevitably affect the
fortunes of persons and groups involved in the litigation process. Whether
Plan eliminates politics in judicial selection is a false issue. Instead,
key issue is whether the particular kind of politics that evolved under the
adequately represents the legal, judicial, public, and political
thought to be important in determining who will sit on the bench.
Politics can never be completely eliminated from the judicial selection process
under a merit plan, or any plan, for that matter. . . It may not even be
necessary to strive toward that goal. Some political considerations will
inevitably enter into the process and can be viewed as a necessary means of
taking interest pluralism into
account in lieu of party politics under an electoral system. The issue is how
balance the need for the articulation of interests by a variety of segments
society, including the general public, and minimize the "problem politics"
jeopardize the fairness of the process.
To date, no state that has adopted a merit plan has opted to replace it with
an elective system. This fact alone, notwithstanding the empirical studies
anecdotal evidence cited herein in support of merit selection, is the best
evidence that it is the superior method of judicial selection.
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