A Short and Pointed History of Judicial Selection
A Short and Pointed History of Judicial Selection
Abstract and Keywords
Chapter 2 places the current state of affairs in context, with a short history of judicial selection in the United States, touching on the five distinct methods of judicial selection that have evolved over time. It begins by discussing colonial rule and gubernatorial appointments, then moves to early statehood and legislative appointments. The Age of Jackson is then examined, in particular Jacksonian democracy and its aftermath, which saw the rise of partisan judicial elections. The chapter then discusses how the Populist-Progressive era ushered in the advent of nonpartisan and recall elections. Finally, it describes the merit selection movement in the twentieth century before concluding that in the modern era, the American judiciary has undergone a political transformation that has placed increasing emphasis on constraining independence and enhancing political control.
We academic types love to begin our books with a bit of history. It is a ritual akin to washing up before dinner. As with washing up, that kind of history is often half-hearted, badly done, and unnecessary. I hope you will bear with me, though, because my objective here is less ritualistic than pointedly focused on three objectives.
First, I want to show that disputes over how independent and accountable judges should be, as reflected in disagreements over judicial selection and retention, are ancient in origin. Those disagreements reinforce a point emphasized in chapter 1—that the judicial selection debate has been perennial.
Second, I want to show that perpetual bickering over how best to select and retain judges has not remained in a steady state. Different systems of selection have had their heydays at different periods in time. To that extent, the five major systems of selection (each of which can fairly be described as a form of appointment or election) are aging rock stars, each (p.25) with loyal followings, who seek to recapture former glory with an endless series of revival tours.
Third, I want this chapter to set up the next, by situating the current judicial selection landscape (as described in chapter 3) in a deeper historical context. The history of judicial selection has featured periodic waves of reform that have produced different systems for choosing and retaining judges. The common aim: an independent judiciary that is buffered from external sources of interference with its impartial judgment. Those selection processes remain the systems of choice in different states. The modern era of judicial selection falls between waves, at a time when no established or proposed system is gathering momentum. And, as discussed in chapter 3, the new politics of judicial elections embrace a different ethos that is less concerned about protecting judicial independence than constraining it.
The targeted history I provide here is incomplete by design. For devotees of American history who are interested in a more comprehensive account of judicial selection in the United States, I recommend Jed Shugerman’s wonderful book, The People’s Courts: Pursuing Judicial Independence in America.
Colonial Rule and Gubernatorial Appointments
At of the turn of the seventeenth century, English judges were appointed by and served at the pleasure of the Crown. Sir Edward Coke (pronounced “cook”) tested the limits of the king’s pleasure during his tenure as chief justice of two different courts between 1606 and 1616. These confrontations did not end well for him, but they did lead to reforms that exerted a profound impact on judicial independence in England, and later, in the United States.
Coke was a true believer in the rule of law, and the authority of English judges—once appointed—to interpret and apply the common law without interference from the king. As a young barrister reporting on Jentleman’s case, decided by the Court of King’s Bench in 1583, Coke wrote that “The King may create a new court and appoint new judges in (p.26) it: but after the Court is created and established, the Judges of the Court ought to determine matters in it.”1 Decades later, as chief justice of two different courts, Coke was in a position to practice what he had previously preached. He wielded the supremacy of the common law with unprecedented gusto, and in so doing crossed the king several times—one too many times, as it turns out.
In one episode, King James I interceded to arbitrate a jurisdictional dispute between the Ecclesiastical “Court of High Commission” and courts of common law. At their meeting, Coke contended that the common law was supreme within its jurisdiction, which served the interests of the Crown because “the common law protecteth the King.”2 “A traitorous speech!” James blustered, countering that “The King protecteth the law and not the laws the king.”3 Undeterred, Coke explained that “his Majesty was not learned in the laws of his realm,” and that “long study and experience” enabled judges to “protect his Majesty in safety and peace” by trying cases competently.4 “The King was greatly offended,” Coke noted later, because Coke had implied that the king was subservient to the law, which, the king declared, “was treason to affirm.”5
In a later altercation, Parliament challenged the king’s practice of encroaching on legislative authority through frequent resort to royal proclamations that had the force of law. The Lord Chancellor warned Coke’s court to “maintain the power and prerogative of the King.”6 Coke, however, was having none of it: “[T]he King cannot change any part of the common law,” he declared, “nor create an offense by his proclamation which was not an offense before, without parliament.”7 In yet another confrontation, the king’s attorney general, Francis Bacon, polled each of the judges on Coke’s court to determine whether a preacher, whose confiscated notes attacked the king and advocated rebellion, had committed treason. Coke declined to give Bacon the answer his king sought, and “asserted boldly that no mere declaration of the of the King’s unworthiness to govern amounted to treason.”8
The king’s gasket finally blew in an imbroglio that began when Bacon conveyed the king’s “commandment” to Coke’s court that it “put off” the disposition of a case concerning the king’s power to make a disputed (p.27) presentation of land to a bishop.9 The court disregarded the king’s request for postponement, which it interpreted as a demand for special treatment, and ruled against him on the merits of the underlying dispute. King James then summoned all twelve justices on the Court of King’s Bench, and asked each a pointed, poison-tipped question: whether, when the king demanded to consult with them and “required . . . that they should stay proceedings in the meantime—they ought not to stay accordingly?”10 Eleven judges whimpered their acquiescence. Coke, however, stood his ground, saying: “I would do that which an honest and just judge ought to do.”11 The King’s Privy Council removed Coke later that year without a formal trial or impeachment proceeding.
Coke may have lost his battle for separation of powers, judicial independence, and the rule of law, but his travails became the cause célèbre of a more protracted campaign for greater judicial separation and independence from the Crown. Following the Glorious Revolution of 1688, King William and Queen Mary relinquished their power to establish courts. And the 1701 Act of Settlement afforded English judges tenure during good behavior and subjected them to removal only upon an address from Parliament.
This tectonic shift in the structure of English government gave judges greater job security and transferred powers relevant to judicial selection and removal from monarch to legislature, to the end of promoting a more independent judiciary. The quake it produced, however, was not fully felt in colonial America, where judges remained beholden to the king and his representatives, the colonial governors.
Some colonial legislatures and governors granted judges tenure during good behavior, presumably on the assumption that tenure protections guaranteed by the Act of Settlement extended to the American colonies. In a 1761 circular to the governors, King George III made it clear that they assumed wrong. First, the king declared that, “it does not appear to us that in the present situation and circumstances of our said colonies . . . the judges or other chief offices of justice should hold their offices during good behavior.”12 Therefore, the king announced his “express will and pleasure” that the governors “do not upon . . . pain of (p.28) being removed from your government,” acquiesce to any acts of colonial legislatures that sought to regulate judicial tenure. Moreover, the king’s circular warned, the governors were to “take particular care” that any judicial appointments they made, be “granted during pleasure only,” which was consistent with “the ancient practice and usage in our said colonies and plantations.”
Judicial salaries likewise became a bone of contention in the colonies’ power struggle with the king. In 1772, King George transferred control over Massachusetts Superior Court salaries from the legislature and governor to the Crown, ostensibly to increase them. The twofold effect of the move was to spark protests among the colonists, who argued that judges were thereby rendered subservient to the king, and to engender suspicion of the judges themselves, whose livelihoods were thereafter under the king’s control.13
Episodes such as these contributed to pervasive disaffection with and distrust of the king, his appointed governors, and colonial judges under the governors’ control. The colonists’ anger reached its apogee in the Declaration of Independence, which included the grievance that King George “has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”
Early Statehood and Legislative Appointments
Between 1776, when America declared its independence from England, and 1787, when the U.S. Constitution was drafted, most fledgling states adopted constitutions, and did so with the colonial experience fresh in their minds. That experience led the states to curb the excesses of executive power that the colonists had endured at the hands of the king and his colonial governors—excesses that included encroachments on the courts. Those encroachments, however, did not catalyze a movement to entrust judges with their independence—after all, the Crown’s efforts to render colonial judges subservient, undermined confidence not only in the king but in the judges as well. Instead, the states sought to diminish executive branch power over judges and courts by transferring that power (p.29) from governors to legislatures. The original thirteen states thus selected judges by one of two methods: gubernatorial appointment with confirmation by a legislative council (in five states) or legislative appointment (in eight states).14
In addition to delegating to legislatures greater responsibility over judicial appointments, state constitutions often vested legislatures with significant control over judicial tenure and retention. The full extent of the judiciary’s resulting dependence became clear as state courts began to exercise judicial review and invalidated enactments near and dear to their legislatures’ hearts.
The circumstances surrounding the Rhode Island Superior Court’s decision in Trevett v. Weeden illustrate the control that early state legislatures sought to exercise over their judiciaries.15 In 1786, the Rhode Island legislature passed a statute requiring merchants to accept paper currency as legal tender—a controversial move at a time when paper currency was devalued.16 Presumably to ensure that angry citizens could not, in their capacity as jurors, nullify prosecutions by acquitting defendants who refused to accept paper currency, the statute denied defendants jury trials in such cases. In Trevett v. Weeden—a case widely cited as early precedent for the power of judicial review—the Superior Court of Rhode Island found that the statute was incompatible with the colonial constitution still in force (Rhode Island had yet to adopt a new constitution after becoming an independent state ten years earlier), which guaranteed citizens the right to a jury trial. The court therefore declared that the suit was “not cognizable,” which effectively invalidated the statute as unconstitutional.
The Rhode Island legislature was infuriated. It summoned the Superior Court’s judges to appear and explain themselves. When a majority of the legislature found the judges’ explanation wanting, it initiated removal proceedings. The attorney general and others interceded on the court’s behalf and the legislature suspended removal proceedings. But when the time came for the legislature to reappoint the judges of the superior court, four of the five members of the court found themselves out of work.
(p.30) Episodic judicial dependence on governors during the colonial period, followed by episodic judicial dependence on state legislatures in the aftermath of the Declaration of Independence, gave rise to a moment of unprecedented consensus in support of judicial independence at the Constitutional Convention of 1787. At the Convention, there was spirited disagreement over whether federal judges should be appointed by the president, by the Congress, by the Senate, or, as they ultimately decided, by the president, with the advice and consent of the Senate. But there was no dispute that judges should be appointed. Even “Brutus,” the pseudonym of Robert Yates, a prominent anti-Federalist critic of the proposed constitution, agreed that, “it would be improper that the judicial should be elective,” because judges require specialized expertise in law, and because judges “should be placed, in a certain degree in an independent situation, that they may maintain firmness and steadiness in their decisions.”17 There was likewise universal consensus that once appointed, federal judges should hold their tenure during good behavior and receive a salary that could not be diminished, although some anti-Federalists worried that the judicial power to declare acts of Congress unconstitutional (without a mechanism for congressional override) could render federal judges too independent and powerful.
Within the span of a century, then, the pendulum of judicial tenure had swung from precarious to semi-secure first in England, and then in the United States. It would, however, be premature to bellow three huzzahs for judicial independence. The U.S. Constitution afforded judges tenure during good behavior, but arguably empowered Congress to manipulate judicial tenure by disestablishing lower federal courts, and impeaching federal judges—powers that partisan Jeffersonian Republicans in Congress wielded against disfavored Federalist judges at the beginning of the nineteenth century. Initially, most though not all state constitutions provided judges with tenure during good behavior, but state legislatures did not necessarily regard tenure during good behavior with any greater reverence than Congress had. And those states in which judges were subject to legislative reappointment after a term of years were even more vulnerable. Hence, in the early 1800s, legislatures in Kentucky, Ohio, (p.31) and elsewhere sought to bring their judiciaries to heel, by instigating impeachment proceedings against targeted judges, disestablishing wayward courts, and manipulating judicial terms of office.
Jacksonian Democracy and Its Aftermath: The Rise of Partisan Judicial Elections
As the nation’s democratic republic entered its second generation, confrontations between legislatures and courts sowed the seeds for a more populist strain of democratic judicial accountability that began to blossom with the election of President Andrew Jackson in 1828. Prior to the 1830s, there had been isolated experiments with elected judiciaries in Vermont, Georgia, and Indiana. But Jacksonian democracy paved the way for a more sustained debate over the merits of judicial elections by pairing public suspicion of judicial power with an almost reflexive enthusiasm for electing pretty much everybody.
Article VI of the U.S. Constitution requires that all state and federal officials take an oath to support the Constitution. Therefore, presidents, governors, legislators, and judges all swear to act within the scope of their constitutional authority, as they understand it. The power of judicial review, however, hands the judiciary a trump card. When Congress and the president, or legislatures and governors, combine to make and execute a law that judges deem unconstitutional, those judges, in their capacity courts, can second-guess the choices that the other branches of government make and invalidate the law. This form of so-called “judicial supremacy,” did not sit well with President Jackson, who declared that: “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the president is independent of both.”18 The State of Georgia took Jackson’s war of words a step further, by executing a Cherokee prisoner in open defiance of a U.S. Supreme Court order, on the grounds that the Court had no business intruding on the affairs of a sovereign state.19
States imbued with Jacksonian populist zeal sought to curb judicial power by moving away from tenure during good behavior and toward (p.32) fixed and shorter renewable terms.20 For some, however, an additional source of ambivalence over judicial power was that judges were unelected. Frederick Robinson, who would later become president of the Massachusetts Senate, delivered a speech on the 4th of July in 1834, which captured the emerging sentiments of ardent Jacksonian populists: “Judges should be made responsible to the people in periodical elections,” he argued. “The boast of an independent judiciary is always meant to deceive you,” he warned: “We want no part of a government independent of the people. Those who are responsible to nobody ought to be entrusted to nobody.”21
Jacksonian-era support for elected judiciaries was not especially sophisticated and did not try to reconcile the desire for democratic accountability with the view that judges needed to be independent and impartial enough to uphold the law in the teeth of popular pressure to do otherwise. That said, it would be a mistake to explain the rise of judicial elections with primary reference to Jackson and his followers, because the partisan judicial elections movement did not take off until the 1840s, after Jackson had left office and his cohort had lost influence.
The continuing appeal of democratic accountability generally may have buoyed support for elected judiciaries after Jackson’s movement had lost momentum. The view that governmental legitimacy derives from electoral accountability is, of course, core to all democracies. Many states embraced that principle with unprecedented enthusiasm throughout the middle decades of the nineteenth century, as they drafted and redrafted their constitutions to elect a widening array of public officials. As a delegate to the Kentucky Constitutional Convention of 1850 grumbled, “We have provided for the popular election of every public officer save the dog catcher, and if the dogs could vote, we should have that as well.”22
But the lawyers who populated constitutional conventions that adopted elected judiciaries were not Jackson devotees. Nor were they hostile to courts or judicial independence. They did not promote an elected judiciary for the primary purpose of empowering voters to purge the bench of judges who had the temerity to issue unpopular (p.33) rulings.23 They promoted an elected judiciary because they were supportive of courts and thought that judges would be better respected and more independent-minded if they derived their authority from the people they served than if they were hand-picked cronies of governors, or sycophants of legislatures.24 The perceived need for a strong and independent judiciary became more acute in the aftermath of banking crises in the late 1830s. Those crises were widely attributed to the excesses of state legislatures, and in the minds of reformers, state judiciaries would be better able to keep legislatures in check via judicial review if judges were less dependent on the body whose legislation they were reviewing.25
Jacksonian Democrats (including Jackson himself) may have favored judicial elections as a means to curb judicial power. Ironically, however, states that inaugurated the movement toward elective systems over a decade later did so as a means to increase judicial power in relation to legislatures. Mississippi, which provided for the popular election of all its judges beginning in 1832, is rightly hailed as the first state to do so. But it was not until the latter half of the 1840s that the partisan judicial elections movement caught fire, beginning with New York’s adoption of judicial elections in 1846. By 1900, thirty-three of the forty-five states had either entered the Union with constitutions that selected judges by means of partisan elections, or had amended their constitutions to replace appointive systems with elective ones.26
As of the late 1800s, states selected judges by one of three means: Gubernatorial appointments, legislative appointments, or contested partisan elections. Each system had a different origin story, and each would have its moment in the sun eclipsed by a new method of selection, in the perennially restive world of judicial selection. Gubernatorial appointments processes ceded turf to legislative appointments processes in the aftermath of independence, and both yielded primacy to partisan election processes beginning in the mid-nineteenth century. Partisan judicial election processes, in turn, would have their dominance challenged by the nonpartisan election movement of the Populist and Progressive Era at the turn of the twentieth century.
The Populist and Progressive Era ushered in a protracted period of intense anti-court sentiment. Industrialization gave rise to a new working class that Progressives sought to protect via legislation to limit corporate power generally and to regulate the workplace in particular. Employers pushed back. They took the issue to court, and argued that legislation regulating hours, wages, and working conditions interfered with the freedom of employers to contract with their employees, which deprived them of their property without due process of law in violation of the Fourteenth Amendment to the U.S. Constitution. In Lochner v. New York, decided in 1905, the U.S. Supreme Court sided with the employers.27 During the so-called Lochner era that ended in 1937, the U.S. Supreme Court invalidated as many as two hundred state laws (recent historical scholarship disputes the number) and some state supreme courts followed suit.
Populists and Progressives raged against state and federal judges who, in their minds, were indifferent to the plight of the people and had elevated laissez-faire capitalism to the status of a constitutional edict. The Progressives’ reform agenda aimed to deter judicial excesses by subjecting judicial selection, retention, and decision-making to greater political control. As one legal historian elaborated: “[T]he Populist-Progressives during the early decades of the century sought to infuse judicial institutions with elements of popular democracy, to alter the substance of judicial decisions, to change the selection of federal judges, and to circumscribe their power and the jurisdiction of their courts.”28
The partisan judicial elections movement had sought to wrest control of judicial selection and retention from politicians and vest it in the people themselves. But in the minds of Progressive-Era reformers, partisan elections served only to transfer political power from governors and legislators to party bosses, who controlled the nomination process and thus the electorate’s choices. To loosen the grip of party control, Progressives proposed that judges be chosen in nonpartisan elections, in which the candidates’ party affiliation would not appear on the ballot. (p.35) North Dakota adopted a nonpartisan election system in 1910, and by 1927, eleven more states had done likewise.
Partisan election processes arguably aimed to strengthen judicial independence by diminishing the dependence of judges on the governors and legislators who appointed (and sometimes reappointed) them. In the same way, nonpartisan election processes arguably aimed to strengthen judicial independence by reducing the dependence of judges on the political party leaders who would otherwise nominate them. For ardent Progressives, however, the true peril of Lochner era courts lay in the courts’ perceived disdain for the will of state legislatures and their allegiance to corporate overlords. It was a peril that nonpartisan elections could diminish, insofar as party strongmen who hand-picked judicial nominees in partisan systems were in the thrall of big business. But for reformers, more was needed to deter judges who, once elected, “can and do usurp legislative functions” by invalidating popular Progressive legislation.29 To keep corporate influence at bay, these reformers proposed recall elections.
Recall elections worked like this: If enough voters signed a petition, they could demand a special election to recall a public official from office before his term expired. Reformers proposed recall procedures for elected officials in all three branches of government. As applied to judges, Progressives defended recall as a boon to independence that would diminish judicial subservience to business interests. As recall proponent, and later Minnesota congressman, James Manahan argued, “A fearless judge would never fear the people. A cowardly judge would fear the people less than he would the political boss and big business men who made him.”30 Oregon adopted a judicial recall procedure in 1908, and by 1926, five additional states had done the same.
Recall elections were the point of the spear in the Progressive campaign to control Lochner era courts. The Progressives’ claim that judicial recall sought to promote judicial independence from special interests, candy-coated their more hostile ambition to bend judges to popular will. As Manahan explained in private correspondence, “ ‘Fear of the stout fist of the people’, was ‘the only antidote’ to the “poison injected into the arm (p.36) of the law,” by the ‘powerful and insidious influence’, of big business and the wealthy.”31
The specter of recall elections frightened conservatives, who sought refuge in the courts from what they regarded as ill-considered legislation of the Populist-Progressive rabble. For conservatives such as U.S senator George Sutherland of Utah, recall elections rendered judges dependent on voters in a way that reflected “a complete misconception of the nature of the relationship . . . between the people and the judge.” A judge “is not a political agent to declare the wishes of a constituency,” Sutherland argued, but “a self-responsible arbitrator to decide the rights of contending parties, bound by the most solemn of covenants to consider nothing but the law and the facts and to obey no voice save the compelling voice of his own instructed conscience.”32
The competing worldviews of Progressives and conservative-traditionalists collided in Arizona’s application for statehood. In 1911, the proposed constitution that Arizona submitted to Congress in its petition to become a state included judicial recall procedures. In a joint resolution, Congress approved Arizona’s petition subject to the condition that Arizona consider an amendment to eliminate judicial recall. Republican president Taft went further and vetoed the resolution, because it would have allowed Arizona to reject the amendment and enter the Union with the recall procedure intact. As the president explained: “This provision of the Arizona Constitution . . . seems to me so pernicious in its effect, so destructive of independence in the judiciary, so likely to subject the rights of the individual to the possible tyranny of the majority, that I must disapprove of a constitution containing it.”33
Arizona relented, resubmitted a constitution that did not include judicial recall, and in February of 1912, President Taft signed off on Arizona’s admission to statehood. Weeks later, Arizona’s governor told his state legislature that “the people of Arizona have twice declared their belief in the righteousness of the power to discharge, through the medium of the recall, dishonest and unfaithful public servants,” and that exempting judges would make them “more than human.”34 That April, the legislature proposed a constitutional amendment to reinstate judicial recall that (p.37) was pointedly identical to the one Taft vetoed. Arizona voters approved the amendment at the next election.
Judicial recall never became the weapon that Progressives had hoped and traditionalists feared. Gathering enough signatures to petition for a recall made the process too cumbersome for regular use. But it brought into bold relief the role that elections could play in purging the judiciary of bad judges who usurped power and disregarded the law, or good judges who upheld the law in favor of unpopular parties or causes—depending on whom one asked.
The Merit Selection Movement in the Twentieth Century
In the breakout role of his illustrious academic career, Roscoe Pound (who would later become dean of the Harvard Law School) delivered a seminal address to the American Bar Association in 1906, entitled “The Causes of Popular Dissatisfaction with the Administration of Justice.” Over the course of a lengthy speech, he enumerated the sources of public disaffection for the courts, and proposed reforms. In his fourth and final category of causes, which he labeled “causes lying in the environment of our administration,” he included “[p]utting courts into politics and compelling judges to become politicians,” a reference to judicial elections, which “in many jurisdictions has almost destroyed the traditional respect for the Bench.”
Pound’s address signaled the arrival of a new breed of reformer. These new reformers were protective of the judiciary’s autonomy and opposed Progressive attacks on Lochner-era courts. They nonetheless took popular critiques of the courts seriously and were receptive to alternative reforms that brought the special expertise of bench, bar, and academy to bear. In 1911, Charles Boston, a prominent New York attorney who would later become ABA president, conducted a national survey of lawyers and laypeople. He found that judge-related complaints were focused not on judicial review run amok, which was the target of Progressives’ ire, but on a lack of competence and integrity. Boston noted that the problem was (p.38) most pronounced in places where political party bosses controlled judicial nominations.35
For these new reformers, judicial elections were a problem because they politicized courts to the detriment of public confidence, jeopardized judicial independence from political parties and temporary majorities of the electorate, and produced unqualified jurists. Nonpartisan elections offered one way to diminish the role of party politics in judicial selection. But the new reformers were concerned that nonpartisan elections would not produce capable and qualified judges because voters were ill-equipped to assess judicial qualifications. Northwestern law professor Albert Kales made the point bluntly: “The electorate does not fail to choose simply because the party leaders have taken that choice from it,” Kales argued. Rather, “the party leaders rule because the electorate regularly goes to the polls too ignorant politically to make a choice of judges.” Such ignorance, Kales asserted, “is due to the fact that the office of judge is inconspicuous and the determination of who are qualified for the office is unusually difficult, even when an expert in possession of all the facts makes the choice.”36
Because voters in nonpartisan systems have no basis upon which to cast an intelligent vote, Kales predicted that political parties will, “after a period of chaos and readjustment,” re-emerge to exploit the informational vacuum. Each political party, Kales anticipated, will “have its slate of candidates.” Those slates “would be distributed at the polls, and the voters would . . . as now, take the list of that organization he was loyal to . . . and vote the names upon it no matter where they appeared upon the ballot.”
In 1913, Pound, Kales, and others founded the American Judicature Society, which new reformers established to improve the administration of justice by capitalizing on the special expertise of judges, lawyers, law professors, and others. The next year, Kales, writing in an American Judicature Society bulletin, devised a “Nonpartisan Court Plan” to address the problems that like-minded reformers had identified. Kales proposed that a council of judges create a pool of qualified candidates to fill judicial vacancies. The chief justice would then appoint judges (p.39) from that pool. After a period of years, the judge would then be subject to a retention election in which voters would decide whether the judge should remain in office. If the electorate voted in favor of retention, the judge would remain in office for an additional term; if not, the chief justice would appoint a replacement from a new candidate pool created by the judicial council.
In 1926, British political scientist Harold Laski proposed that judges should be appointed by the governor rather than the chief justice, from a candidate pool created by a committee of judges and lawyers, rather than the judicial council imagined by Kales.37 Laski recommended tenure during good behavior or until a specified age, instead of retention elections, because “the qualifications for judicial office are not such as an undifferentiated public can properly assess.”38 In 1928, the American Judicature Society endorsed a Nonpartisan Court Plan, but tweaked the Kales and Laski proposals to provide that the governor appoint judges from a list that the bar compiled.39 And in 1931, the Grand Jury Association of New York suggested that non-lawyers be included in nominating commissions.
In 1934, California became the first state to jettison contested judicial elections in favor of an appointive system. The impetus for reform had been a campaign led by then district attorney (and later chief justice of the United States) Earl Warren to combat crime. Proponents argued that Proposition Number 3, as the judicial selection plan was known, would create a corps of capable, qualified, and professional judges who would do their part to remediate the state’s crime problem by administering justice more efficiently and expeditiously. As originally conceived, California’s Proposition No. 3 proposed a system akin to that developed by Kales, Laski, and others, in which governors would appoint judges from a pool of candidates screened by a nominating board. But before it went to the voters, Proposition Number 3 was amended to replace the nominating board with a “commission on qualifications” that would, in effect, confirm judges whom the governor nominated. The net effect was to give the governor significantly greater control over judicial selection than the Nonpartisan Court Plan contemplated, and to render the (p.40) California selection process a hybrid gubernatorial appointment model that would not be widely emulated.
In 1937, the American Bar Association cobbled together a composite proposal from the varied Nonpartisan Court Plans to date. The only unequivocal component of the ABA proposal was that judges be “appoint[ed] by [an] executive or other elective official or officials . . . from a list named by another agency, composed in part of high judicial officers and in part of other citizens, selected for the purpose.” The proposal added that “if further check on appointment be desired,” states could provide for legislative confirmation. Finally, the proposal recommended that judges be subject to periodic reappointment or retention elections.
In 1940, over a quarter century after it was first proposed, Missouri adopted a Nonpartisan Court Plan. In Missouri, as in California, reformers capitalized on an anti-crime campaign, arguing that commission-approved judges would be better qualified than their elected counterparts to administer backlogged criminal court dockets. But in Missouri, these relatively sterile, good government arguments for efficient and expeditious administration of justice were paired with a more urgent campaign to rescue judicial selection from the clutches of political party leaders. In this way, the Nonpartisan Court Plan engine that had been putt-putting along as an intellectual exercise, would receive its first infusion of rocket fuel.
One of the bellwether events that propelled the Missouri reform movement was a brazen effort by notorious Democratic Party boss Tom Pendergast to manipulate the composition of the state supreme court. In 1937, Democratic governor Lloyd Stark appointed Justice James Douglas to fill a vacancy on the Missouri Supreme Court. Soon thereafter, Douglas cast the deciding vote in an insurance case against a corporation in which Pendergast had an interest. Pendergast launched a hard-fought but ultimately unsuccessful campaign to replace Douglas with a candidate of Pendergast’s choosing, which exposed the power and influence that political parties sought to exert over the Missouri judiciary.
A second catalyzing event in the Missouri campaign was the 1934 election of nominal lawyer, but mostly pharmacist, Eugene Padberg to the circuit court in St. Louis.40 Padberg’s slender credentials were (p.41) supplemented by his not inconsiderable loyalty to the Democratic Party that ensconced him on the bench. The embarrassment reached a high-water mark when Padberg’s inertia in presiding over a grand jury investigation of local voter fraud became so obvious that a fellow judge interceded to end the proceedings and discharge the grand jury. An editorial in the St, Louis Post Dispatch blared, in terms shrill enough to get the attention of Time Magazine that, “St. Louis is confronted with a reeking, stinking scandal, and Circuit Judge Eugene L. Padberg is sitting right in the middle of it.”41
Missouri voters had had enough. They approved the Nonpartisan Court Plan in 1940. They rejected a proposal to defeat it in 1942, and in 1945, they enshrined the plan in their new constitution.
The Nonpartisan Court Plan movement took flight like an albatross, which is to say slowly and awkwardly, with a lot of preliminary, ineffectual flapping, but with considerable staying power once airborne. Successes in California and Missouri were offset by failures in Michigan and Ohio, and it was not until the 1950s that additional states began to adopt merit selection systems. Around that time, it dawned on the new reformers that “Nonpartisan Court Plan” was a stupid name, given how easily it could be confused with nonpartisan election plans that they opposed. As the Nonpartisan Court Plan began to proliferate, it was rebranded “Merit Selection” or “The Missouri Plan”; by the 1980s, over twenty states had adopted it in one form or another.
In his history of judicial selection, Jed Shugerman attributes the ultimate rise of merit selection to a complex array of factors. First, he notes that “in rural but industrializing states, business interests had grown strong enough to organize merit campaigns, but industry and labor had not yet produced unions or machines that could block businesses’ efforts.”42 Second, he credits “opportunistic leadership,” for making a difference in several states.43 Third, he credits the sincerity of merit selection proponents for their ultimate success, noting that “many key actors in merit’s spread chose judicial independence over their more direct political interests,” which transformed those “key actors” from potential obstructionists into cheerleaders.44
The history of judicial selection in the United States is a centuries-long snipe hunt for an independent and impartial judiciary. That hunt has yielded five distinct methods of selection, each with sub-variations. Each of those five methods was conjured in a unique historical context that enabled a given method to achieve favored status for a period of time, until its weaknesses were exposed, and circumstances were right for its popularity to diminish and the hunt for a new quarry to resume.
In the United States, colonial rule put governors in charge of the colonies and judicial selection. The autocratic rule of the Crown and the governors under the king’s control led the colonists to rebel, and to establish systems of selection that diminished judicial dependence on governors by delegating greater power to state legislatures. Populist suspicion of appointed judiciaries and the cronyism they enabled, coupled with economic crises that buoyed support for judiciaries that were independent enough to keep the excesses of legislatures in check, sparked a movement to diminish judicial dependence on governors and legislatures by selecting judges in partisan elections. Scandals that exposed the unchecked power of political party bosses led critics to argue that partisan judicial election systems rendered judges dependent on party leaders, which catalyzed a movement for nonpartisan judicial elections. And suspicion that nonpartisan elections did not produce qualified judges and simply drove judicial dependence on political party leadership underground, paired with a post-Depression era body politic that was receptive to delegating greater authority over judicial selection to experts, gave rise to the merit selection movement.
The history of state judicial selection chronicles a quest to diminish disfavored sources of control over judicial decision-making. As states have sought to exclude external sources of control over judicial decision-making, they have reduced the power of governors, legislators, political parties, and voters to put their thumbs on the scales of justice. This approach to reform has proceeded on the premise that judicial independence promotes judicial impartiality by rendering judges independent of influences that could interfere with their impartial judgment.
(p.43) But here is the thing. As selection systems make judges more independent by eliminating external interference with their impartiality, those systems indirectly facilitate internal interference with judicial impartiality. Judges who are unaccountable to external actors—be they politicians, party officials, or voters—are liberated to indulge their own internal biases that external actors might otherwise keep in check.
The merit selection movement subsequently stalled out. The last state to adopt a merit selection system was Rhode Island, in 1994. Commission “experts” revered by the merit selection movement, have become “elites” reviled by merit selection critics.45 Those critics have ridden a long-gathering wave of anti-elitism and distrust of government culminating in the 2008 vice-presidential nomination of Sarah Palin, the 2016 election of Donald Trump, and the emergence of the so-called alt-right.”46 In this skeptical, neo-populist environment, significant segments of the public have become increasingly loath to relinquish its control over judicial selection and retention at the ballot box, which is the primary means by which they can keep perceived judicial excesses in check.
With isolated exceptions, the history of judicial selection has been about “pursuing judicial independence in America,” to quote the subtitle of Shugerman’s book. As implied by the preceding paragraph and explained in the next chapter, however, in the modern era, the American judiciary has undergone a political transformation that has placed increasing emphasis on constraining independence and enhancing political control.
(1.) Jentleman’s Case, 6 Co. Rep. 11a, 77 Eng. Rep. 269 (K.B.1606).
(2.) John Nichols, Letter of Mr. Chamberlain to Dudley Carleton, 2 THE PROGRESSES, PROCESSIONS, AND MAGNIFICENT FESTIVITIES OF KING JAMES FIRST 210 (1828).
(4.) J.R. Tanner, ENGLISH CONSTITUTIONAL CONFLICTS OF THE SEVENTEENTH CENTURY:1603–1689, at 36–37 (1947).
(6.) 4 W.S. Holdsworth, A HISTORY OF ENGLISH LAW 173 (1924).
(7.) Henry Hallam, 1 THE CONSTITUTIONAL HISTORY OF ENGLAND, FROM ACCESSION OF HENRY VII TO THE DEATH OF GEORGE II 331 (1846).
(8.) Samuel Garidner, 2 A HISTORY OF ENGLAND FROM THE ACCESSION OF JAMES I TO THE DISGRACE OF CHIEF JUSTICE COKE 188 (1863).
(9.) Hastings Lyon & Herman Block, EDWARD COKE: ORACLE OF LAW 201 (1929).
(11.) Charles James, CHIEF JUSTICE COKE: HIS FAMILY AND DESCENDANTS AT HOLKHAM 34 (1929).
(12.) Quoted and discussed in Scott Douglas Gerber, A DISTINCT JUDICIAL POWER: THE ORIGINS OF AN INDEPENDENT JUDICIARY 1606–1787, at 48–49 (2011).
(13.) William S. Carpenter, JUDICIAL TENURE IN THE UNITED STATES 3 (1918).
(14.) Evan Haynes, THE SELECTION AND TENURE OF JUDGES IN THE UNITED STATES 101–35 (1945) (data drawn from table).
(15.) (R.I. 1786), private report reprinted in 1 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 417 (Bernard Schwartz ed., 1971).
(16.) For a fuller discussion of the circumstances surrounding this case, see William S. Carpenter, JUDICIAL TENURE IN THE UNITED STATES 16–19 (1918).
(17.) Brutus XVI, April 10, 1788.
(18.) Quoted in Barry Friedman, The History of the Countermajoritarian Difficulty (Part 1), 73 N.Y.U. L. REV. 333, 396 (1998).
(20.) Jed Handelsman Shugerman, Economic Crisis and the Rise of Judicial Elections, 123 HARV. L. REV. 1061, 1074–75 (2010).
(21.) Frederick Robinson, AN ORATION DELIVERED BEFORE THE TRADE UNIONS OF BOSTON 17 (1834).
(22.) Quoted in Kermit J. Hall, The Judiciary on Trial: State Constitutional Reform and the Rise of an Elected Judiciary, 1846–60, 45 THE HISTORIAN 337, 340–41 (1983).
(23.) Caleb Nelson, A Reevaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America, 37 AM. J. LEGAL HIST. 190 (1993).
(24.) Kermit L. Hall, Progressive Reform and the Decline of Democratic Accountability: The Popular Election of State Supreme Court Judges, 1850–1920, 1984 AM. BAR FOUND. RES. J. 345.
(25.) Jed Handelsman Shugerman, Economic Crisis and the Rise of Judicial Elections, 123 HARV. L. REV. 1061, 1076–92 (2010).
(26.) Andrew Hanssen, Learning About Judicial Independence, Institutional Change in State Courts, 33 J. LEGAL STUD. 431, 442 (2004).
(27.) 198 U.S. 45 (1905).
(28.) Peter G. Fish, THE POLITICS OF FEDERAL JUDICIAL ADMINISTRATION 18 (1973).
(29.) James Manahan, RECALL OF JUDGES 9 (1912).
(31.) Quoted in William G. Ross, A MUTED FURY: POPULISTS, PROGRESSIVES AND LABOR UNIONS CONFRONT THE COURTS, 1890–1937, at 111 (1994).
(33.) Special Message of the President of the United States, Returning Without Approval House Joint Resolution 14 at 4 (Aug. 15, 2011).
(34.) Richard Ruelas, Judicial “Fib” Got Arizona Its Statehood, ARIZONA REPUBLIC, Feb. 20, 2010.
(35.) Charles Boston, Some Conservative Views upon the Judiciary and Judicial Recall, 23 YALE L. J. 511 (1914).
(36.) Albert M. Kales, Methods of Selecting and Retiring Judges, BULLETIN VI, AMERICAN JUDICATURE SOC’Y 36 (1914).
(37.) Harold J. Laski, The Technique of Judicial Appointment, 24 MICH. L. REV. 529 (1926).
(39.) The Eligible List of Judicial Candidates, I 1 J. AM. JUD. SOC’Y 131, 131–32 (1928).
(40.) Discussed in Rachel Caufield, What Makes Merit Selection Different?, 15 ROGER WILLIAMS L. REV. 765, 768–69 (2010).
(41.) The Press. Pants Afire, TIME MAG., Jan. 23, 1939.
(42.) Jed Shugerman, THE PEOPLE’S COURTS: PURSUING JUDICIAL INDEPENDENCE IN AMERICA. 238 (2012).
(45.) James Bopp Jr., The Perils of Merit Selection, 46 IND. L. REV. 87 (2013); Seth Andersen, Examining the Decline of Merit Selection in the States, 67 ALB. L. REV. 793 (2004).
(46.) Beverly Gage, How “Elites” Became One of the Nastiest Epithets in American Politics, N.Y. TIMES MAG., Jan. 3, 2017; Magali Sarfatti Larson & Douglas Porpora, The Resistible Rise of Sarah Palin: Continuity and Paradox in the American Right Wing, 26 SOCIOLOGICAL FORUM 754 (2011).