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Merit Selection: Current Status, Procedures, and Issues by Jona Goldschmidt, University of Miami Law Review (Fall, 1994)

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Excerpted with permission of the Miami Law Review.
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 operational factors.

Proponents of merit selection offer it as a preferable alternative to the politics and fundraising inherent in judicial elections, but opponents maintain that the appointive process itself is political, and that, furthermore, people have a right to elect their judges. Despite lingering doubts by some about merit selection's effectiveness in eliminating politics from judicial selection, 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 public which is likely to vote an unpopular, although competent, judge out of office 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 time.

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 society; (4) it results in life-tenure for judges, who are rarely removed in retention 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 legislature, or, once passed the legislators, fallen at the polls. Passage of a statutory plan is nearly as difficult. Merit selection supporters in the legislature have 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 means of instituting a plan - the executive order. These orders have commonly created a nominating commission to screen applicants for initial or interim vacancies to the courts over which the executive has appointing power In most of the elective states the governor is empowered to fill judicial and other vacancies by appointment, with tenure of these appointed judges extending until the next election or for a specified minimum time. Since forty to ninety percent of the judicial vacancies that occur are filled by the governor, even in the states that are nominally elective, a very substantial percentage, usually a 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 definitive conclusion regarding which selection method enhances diversity. The signs are, however, that merit selection is at least not an obstacle to diversity. In fact, 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 bench 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 consistently associated with judicial decision-making." They conclude with this observation: "until background characteristics of judges are more meaningfully linked to decisional behavior, it would seem pointless to discover that judges chosen by different methods of selection possess marginally different attributes when these different characteristics do not seem to affect voting behavior or 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 in the matter and at the same time to discourage other interests. It may be assumed that these interests will engage in the "politics" of judicial selection, that is, they will maneuver to influence who will be chosen as judges (1) because such judgeships constitute prestigious positions for aspiring lawyers, and (2) because, in the course of making decisions, judges inevitably affect the fortunes of persons and groups involved in the litigation process. Whether the Plan eliminates politics in judicial selection is a false issue. Instead, the key issue is whether the particular kind of politics that evolved under the Plan adequately represents the legal, judicial, public, and political perspectives 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 to balance the need for the articulation of interests by a variety of segments of society, including the general public, and minimize the "problem politics" that 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 and 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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