The Future of Judicial Selection
The Future of Judicial Selection
Abstract and Keywords
Chapter 7 then brings the book to conclusion by discussing the future of judicial selection. After summarizing the discussions in the previous six chapters, it notes that the ultimate ambition of a legal culture paradigm is to render judges independent enough to follow the law, adhere to the established legal process, and administer justice, without being so independent as to enable them to disregard those objectives in pursuit of their personal agendas. To that end, the chapter indicates that rather than trying to achieve an impossible consensus, the country should embrace the diversity of approaches that allows states to choose for themselves which selection process best suits their individual historical and other circumstances, whether that be appointive, elective, or something in-between such as a qualified election.
The debate over how best to pick judges in the United States has been endless, ever changing, and traditionally bound by a common thread. In the subtitle of his book, Jed Shugerman aptly describes the cycles of judicial selection reform he chronicles in terms of “pursuing judicial independence in America.” When the countervailing impulse for judicial accountability and control has intruded upon judicial independence in ways perceived as problematic, reformers have jumped into the fray. Thus, widespread concern that King George and colonial governors exerted excessive control over the colonial judges they appointed catalyzed a move toward legislative appointment systems. Fears that state legislatures wielded excessive control over the judges they appointed spurred the partisan-election movement in the mid-nineteenth century. Concern that partisan-elected judges were beholden to the political parties that nominated them led to the nonpartisan election movement at the turn of the twentieth century. Worries that an uninformed electorate exerted too much control over the selection of nonpartisan judges, coupled with the (p.160) suspicion that nominally nonpartisan systems did not end political party control but simply drove it underground, contributed to the launch of merit selection systems in the mid-twentieth century.
The Holy Grail in this epic quest has been a selection system in which judges are afforded independence from those who control their selection and tenure. One could spin the new politics critique of merit selection systems in a similar way: Merit selection systems arguably give excessive control over judicial selection to “elites,” including lawyers, who are overrepresented on nominating commissions, and governors who make the appointments.1 But the primary objection to merit selection systems is not that commission-assisted appointment processes put judges under the thrall of lawyers, governors, or anyone else. The primary objection is that appointment processes, including merit selection, render judges too independent and too unaccountable. As Chris Bonneau and Melinda Gann Hall argue, the independence appointed judges enjoy is “the very feature that give[s] rise to their ability to decide cases without sanction based on their personal philosophies of law and public policy, which may or may not correspond with the rule of law. . . .”2
The new politics of judicial elections, as described in chapter 3, add a recent twist to a centuries-old narrative. The new politics are new because the drivers and defenders of the new politics do not seek to promote an independent judiciary, but to constrain it. The core, nineteenth century justification for replacing appointive systems with popular elections—that it would protect judicial independence from encroachment by governors and legislatures—has been replaced with a new one: contested elections thwart rogue judges.3 Against that backdrop, merit selection proponents are less “reformers,” as they are often labeled by social scientists, than traditionalists. They rail against the new politics and the impulse to control judicial decision-making at the ballot box, and favor a system that better promotes an independent judiciary—the traditional justification for every new system of selection introduced since the eighteenth century.
For contemporary proponents, contested elections are legitimizing precisely because they constrain judicial independence and transfer to (p.161) voters a measure of control over judges and the decisions they make. Well-financed, hotly contested judicial races in which a more engaged electorate ousts judges from office for rendering decisions at odds with the public’s policy preferences embody democracy in action. In the modern era, then, those at the forefront of the new politics of judicial elections, who bankroll and defend competitive judicial campaigns, have, effectively, retitled the Shugerman story, “pursuing judicial dependence in America.” To characterize the new politics in this way is not necessarily to condemn them. If judges are insufficiently different from other public officials to justify insulating them from the electoral accountability to which other public officials are subject, then pursuing a more dependent judiciary is a laudable objective. The crucial question is whether judges are different enough to justify a different system of selection.
Looking ahead, one can anticipate a period of calm relative to the recent past. Campaign spending shows signs of leveling off. That is not because the drivers of the new politics are losing steam. It is because they have prevailed. In the South, a period of intense, two-party competition began with upstart Republicans initiating a pitched battle to end a century of Democratic Party control over state supreme courts—a battle that the Republicans have won. Well-financed campaigns waged by the Chamber of Commerce and other business interests to repopulate state supreme courts with business-friendly judges—campaigns that bankrolled the new politics—have, for the most part, succeeded. And with victory, comes peace.
The ethos of the new politics, however, is likely to be more enduring. The merit selection movement was aided by what I have described elsewhere as the “rule of law paradigm.”4 That centuries-old paradigm postulates that independent judges will set extralegal influences aside and uphold the law. It underlies the law narrative described in chapter 5, which regards appointive systems (including merit selection) as independence promoting and hence more compatible with the rule of law. But the venerable rule of law paradigm is eroding. The vast majority of the public does not think that judges set their personal feelings or ideological preferences aside when deciding cases. And increasingly, (p.162) the public finds that state of affairs unacceptable when its policy preferences deviate too markedly from the policies that judges putatively make in the decisions they render. This engenders skepticism of judicial independence and support for contested elections in the new politics of judicial selection that show no signs of going away.
To date, the judicial selection debate has, with exceptions, pitted two extremes against each other. On the one side, is the law narrative, which adheres to the rule of law paradigm, downplays extralegal influences on judicial decision-making, and regards appointive systems that insulate judges from electoral pressure as necessary to preserve judicial independence and the rule of law. On the other side is the politics narrative, which regards the role of law in judicial decision-making as malleable if not mythical, and conceptualizes judges as politicians in robes who, like other policymakers in a democratic republic, should be held accountable to their constituents in periodic elections. These competing narratives have contributed to a fractious and binary debate summarized in chapter 4.
For those who subscribe to the law narrative, judges uphold and apply rules of law like umpires call balls and strikes. Like umpires, judges cannot be expected to apply the rules of the game impartially if their jobs depend on keeping the fans happy. Hinging judicial tenure on the outcome of contested elections is thus anathema to independent and impartial administration of the law as evidenced by studies showing that judges rule differently to mollify their “constituents” as elections approach. Impact on judicial independence aside, contested elections are ill-advised because voters are incompetent to evaluate judicial candidates intelligently. Judges have specialized legal knowledge and training in law that voters are incompetent to assess. To make matters worse, voters are too apathetic to gather enough information about the candidates and issues to compensate for their incompetence, and so cast uniformed ballots or do not vote at all. Insofar as hotly contested, high-priced supreme court elections blitz the electorate with advertising, the information thereby imparted may have nothing to do with the candidate’s qualifications, experience, diligence, or temperament. Rather, the money devoted to (p.163) judicial campaigns may serve only to foster the perception, if not the reality, that those who bankroll the advertising are seeking to buy influence with the judge.
Proponents of elected judiciaries in contrast, conceptualize judges as policymakers in robes, who like other policymakers in a democratic republic, should be accountable in periodic elections to their constituents. If left to their own devices, judges will make policy that comports with their personal ideologies rather than the preferences of the people that judges ostensibly serve. To the extent that impending elections lead judges to vote differently out of concern for voter backlash, it is evidence of democracy in action. The democracy-enhancing benefits of contested judicial elections are further aided by contentious and well-financed, partisan campaigns, which increase voter knowledge and interest, and decrease roll-off. Moreover, whatever damage big money flowing into judicial races does to the judiciary’s legitimacy (because of the perception that judges are beholden to their supporters) is typically offset by the legitimacy gains that electoral accountability supplies (because electoral accountability ensures that judges are acceptable to the people they serve).
As detailed in chapter 5, these dichotomous arguments are driven to opposite poles by pugnacious disputants who exaggerate their claims and ignore or mischaracterize opposing arguments and data. There are four possible explanations for this phenomenon:
—Path dependence and competing narratives: Those with legal training are acculturated to follow a well-trodden path that favors a law narrative, which begins by conceptualizing judges as umpires and leads to the conclusion that umpire-judges must be buffered from electoral accountability, to preserve the rule of law. Those with backgrounds in politics follow a different, equally well-worn path that begins with a politics narrative, which conceptualizes judges as politicians, and leads to the conclusion that politician-judges should be held accountable to the electorate, consistent with principles of representative democracy.
—Coping with cognitive dissonance: Cognitive psychology teaches us that when people receive new information that contradicts their (p.164) existing beliefs, a common way to alleviate the resulting stress is to ignore or deny the new information. Thus, disputants cling to the judicial selection narrative they have embraced by disregarding or rejecting new information that undermines their arguments on its behalf.
—Motivated reasoning and assimilation bias: People are motivated to assimilate new information in ways compatible with their preexisting views. To the extent that new information in the judicial selection debate is ambiguous enough to tolerate competing interpretations, disputants will construe that information in ways consistent with their entrenched positions.
—Dueling publics: Devotees of elections and appointments both argue that the judiciary’s legitimacy is promoted by their preferred method of selection, but often argue past each other. Proponents of elective systems tout the legitimacy-enhancing benefits of judicial elections for the voting public, while proponents of appointive systems argue that insulating judges from voter and special interest influence inspires confidence for the litigating public.
To no small extent, the schism between the election and appointment camps in the judicial selection debate is attributable to a disciplinary divide between law and politics. That schism pits those whose legal training and experience lead them to view independent judges as impartial guardians of law, against those whose training and experience in the rough and tumble of the political process lead them to view independent judges as unaccountable politicians. With exceptions, that has resulted in the law camp favoring appointive systems that promote judicial independence and the rule of law by insulating judges from electoral pressures, and the politics camp favoring elective systems that discourage rogue policymaking by holding judges accountable to the people they serve. These disciplinary ruts are deepened when disputants: hide from contradictory information as a means to avoid cognitive dissonance, assimilate ambiguous information in a manner consistent with their preexisting positions, and gravitate toward promoting the legitimacy of the judiciary for the benefit of whichever public is better accommodated by the disputants’ preferred system of selection.
(p.165) Chapter 6 argues that stridency can be lessened and the distance between the law and politics narratives diminished if academics and opinion leaders take a more deeply interdisciplinary approach to evaluating competing arguments in the judicial selection debate. Deep interdisciplinarity enables disputants to better identify exaggerated claims as such and to reconsider judicial selection alternatives in light of opposing data and claims. Such an approach reveals that neither the law nor the politics camps has gotten it right, and suggests the need for a new paradigm.
The long dominant rule of law paradigm is crumbling because its core premise—that independent judges follow the law and nothing else—is belied by data and rejected by those the paradigm seeks to guide. One can, however, reject the rigid rule of law paradigm and still accept the need for judicial independence. To say that more than law alone influences judicial decision-making is not to say that law is irrelevant. Judges are acculturated to take law seriously from their first days of law school. Studies support the conclusion that law matters in judicial decision-making, even if ideology and other extralegal factors can inform a judge’s understanding of what the law requires—especially in difficult cases, when the law is indeterminate. Independence enables judges to uphold the law as they are acculturated to do, free from electoral intimidation to do otherwise. Independence liberates judges to afford litigants a full and fair hearing, unencumbered by pressure to reach a particular result by any means necessary. And independence creates a buffer that permits judges to set the public mood aside and dispense justice on the basis of case specific facts as applied to operative law—facts that judges are better situated than voters to know.
In an earlier work I argued for moving toward a new “legal culture paradigm,” which proceeds from the premise that independent judges are predisposed to follow the law as they understand it to be written, but that legal indeterminacy requires judges to exercise judgment and discretion that can be influenced by extralegal factors, including their policy predilections. In acknowledging that judges are subject to ideological and other influences, the legal culture paradigm recognizes that judicial (p.166) independence can be abused by judges who flout the judiciary’s cultural norms, disregard the law, and impose their personal preferences. To deter such abuse, the legal culture paradigm appreciates a special need for judicial accountability.
The ultimate ambition of a legal culture paradigm is to render judges independent enough to follow the law, adhere to the established legal process, and administer justice, without being so independent as to enable them to disregard those objectives in pursuit of their personal agendas. The legal culture paradigm thus straddles the fence between the law and politics camps as I have described them here. It posits that judges are acculturated to take the law seriously, but that they are subject to ideological and other extralegal influences when exercising the judgment and discretion necessary to resolve legal disputes in which the law in relation to the facts is indeterminate. Viewed in that light, appointive systems can be defended as necessary to afford judges the independence they require to apply the law as they are acculturated to do. At the same time, elective systems can be defended as necessary to reassure the general public that independent judges can be deterred from succumbing to temptation and abusing their power by disregarding the law and imposing their personal policy preferences. In other words, the legal culture paradigm frames the arguments in the judicial selection debate without resolving them in favor of one selection system to the exclusion of the other.
To say that a final resolution is elusive, however, is not to say that we must throw our hands in the air. The comparative strengths that each system of selection brings to the table imply the presence of relative weaknesses that the rival system lacks. Hence, appointive systems can be criticized for rendering judges unaccountable to the people and free to impose their own biases, while elective systems can be criticized for rendering judges too dependent on majority whim. This state of affairs justifies an incremental reform agenda that renders judges in elective systems more independent and judges in appointive systems more accountable. And so, as chapter 6 argued, elective systems may better protect judicial independence and impartiality via campaign finance reform, disqualification rules requiring recusal for campaign conduct (p.167) that engenders perceptions of bias and dependence, and longer terms of office that diminish the frequency of independence-threatening elections. At the same time, appointive systems can better promote public confidence in the accountability of the judiciary by: publicizing existing accountability-promoting mechanisms, most notably systems of judicial discipline; reinvigorating disqualification procedure to limit the opportunities for unelected judges to inflict their biases on litigants; and instituting rigorous judicial performance evaluations.
At the end of the day, however, incremental reform can shorten the divide between elective and appointive systems, but cannot eliminate it. Judges must either be subjected to contested elections or not. Retention elections, in which judges run against their records rather than opposing candidates may appear to steer a middle course but in practice, do not. The vast majority of the time, retention elections are rubber stamps that do not promote electoral accountability in any meaningful way. On those rare occasions in which opposition campaigns become meaningful affairs, retention elections threaten independence by rendering incumbents helpless to defend themselves in ways that contested elections do not.
The ultimately irreducible, either-or nature of the election versus appointment choice has never been resolved in favor of one over the other because neither system (nor any of their sub-variations) has established itself as universally optimal. Different states have different histories, different political cultures, and different problems with their courts that can be perceived in different ways at different times. Researchers have taken pains to emphasize the differences in experience with judicial elections that arise state-to -state and election-to-election. Those differences have rendered the judicial selection debate perpetual, and for good reason. Keeping different selection options on the table enables states to tailor selection systems to meet the particular needs of their respective jurisdictions at particular moments in time.
To say that no one system of selection is perfect or always optimal, however, is not to say that a state’s choice between systems must be haphazard or unguided. Chapter 6 makes the case for a default in favor of (p.168) appointive systems, for three reasons. First, appointive systems are more compatible with constitutional theory, which calls upon independent judges to keep the legislative and executive branches of government in check via (sometimes) countermajoritarian judicial review. Second, appointive systems are preferable as a matter of institutional design. They enable the judiciary to bring a unique perspective to its analysis of legal issues by virtue of the fact that it is not subject to the same majoritarian pressures that shape the thinking of the other departments of government. That enriches the inter-branch dialogue and improves deliberative democracy. Third, appointive systems are better suited to promote a sounder judicial process for the benefit of the litigating public by eliminating the influence of impending elections and campaign support on judicial decision-making.
Ultimately, a default in favor of appointive systems makes the most sense in light of the legal culture paradigm that I advocate. The starting point in that paradigm is with the defensible and documented premise that judges are acculturated to take law seriously. An appointive system proceeds from a similar premise—that judges who are independent from electoral pressure are predisposed to follow the law, and do not require voters breathing down their necks to do their jobs properly. Elections, in contrast, put judges under pressure to disregard the law whenever an outcome that the law requires is different from the outcome that the voters prefer.
That said, the legal culture paradigm does not suggest that the default in favor of appointive systems should be hard and fast. The new paradigm recognizes that judges are human, that they are subject to ideological and other influences that can get the best of them, and that more robust mechanisms for promoting judicial accountability may be necessary. For these reasons, there may be times when elective systems of judicial selection are needed to restore or preserve the general public’s confidence in the legitimacy of a judiciary whose judges would otherwise be distrusted as unaccountable political actors promoting ideological (or other extralegal) agendas. At that tipping point, appointive systems must yield to elective.
(p.169) Some readers are likely to quarrel with my conclusion that an appointive model is the better default, because they remain wedded to the politics narrative, because they do not buy into the legal culture paradigm, or because they do not think that a legal culture paradigm dictates a default in favor of appointive systems. Given the overarching point of chapter 6, that disagreement over the relative merits of elections and appointments can be diminished but not eliminated, I can live with the inevitability that some will deem contested elections a preferable default for all the reasons that chapter 4 offers in support of elective systems. But that inevitability does not contradict my more central point that whichever system is deemed a better default, it is nonetheless just a default. The centuries-old failure to reach consensus as to the optimal method of selection is both explained and justified in terms of a perpetual tension that will and should be resolved in favor of adopting different selection systems to meet the needs of changing times, circumstances, and priorities.
For states that are alert to the disadvantages of whichever system they have, but are loath to trade those drawbacks for different disadvantages that encumber the alternative, the “qualified election” model that I proposed in chapter 6 may be the best they can do. I do not make the case for a qualified election system being ideal (or preferable to the appointive system default that I recommend), but once you have determined that the food sources on your desert island are limited to lizards and seaweed, it is time to call off the search for ambrosia. The appeal of a qualified election approach lies in retaining the legitimacy-enhancing virtues of contested elections among qualified candidates, while rejecting the independence-threatening vices of reselection processes. In this way, a qualified election system seeks a middle ground that promotes general public confidence in the judiciary without sacrificing the litigating public’s interest in a fair hearing. In jurisdictions where traditional contested elections and merit selection are regarded as unappealing choices akin to reptile slurry and algae surprise on the island menu, perhaps a qualified election system is iguana loin in kelp pesto: a welcome, if less than ideal alternative that may be the best under the circumstances.
(p.170) Now is an important time to be thinking about the American judiciary, its judges, and how those judges should be selected. First, in the modern era, the judicial selection debate has pivoted away from its traditional focus on which system of selection is best suited to promote the rule of law by insulating judges from external interference with their impartial judgment. In its stead is a new focus on whether the rule of law is better promoted by elective systems that constrain—rather than promote—judicial independence, by deterring putatively rogue judges who disregard the law and impose their own idiosyncratic, ideological predilections. The outcome of this contemporary debate could redefine the role of American judges and courts for generations to come.
Second, it would be a mistake to think about state judicial selection independently of recent developments in American politics generally. In the United States, representative democracies with tripartite systems of government have long positioned their judiciaries as bulwarks against unconstitutional overreach by the legislative and executive branches of government. At the national level, that traditional role has been challenged by a new administration that regards as illegitimate judicial review adverse to its political agenda. As a traditionalist who has long defended the importance of a strong and independent judiciary, I confess to finding this development alarming. But that is beside a larger point to the extent that President Trump’s impatience with an independent judiciary that is free to impose its “political” views is widely shared by those who propelled him into office. To the extent that significant segments of the public are becoming more skeptical of judicial systems operating independently of popular will, the debate over whether judges should be answerable to voters in contested elections acquires added urgency.
Finally, judicial selection reform has come and gone in waves. The last great reform movement—merit selection—stalled in the 1980s. The new politics of judicial elections that arose in the decades that followed was not a new selection reform movement, but a repurposing of existing selection processes for new(ish) ends, namely, to constrain at the ballot box the decision-making independence of the American judiciary. The new politics have, in effect, created a contentious lull, in (p.171) which entrenched interests have doubled down on their binary positions in a perennial independence-versus-accountability debate over whether American judges should be elected or appointed.
History suggests that this current lull will precede a new reform movement to follow. One possibility is that a new movement could be prompted by a backlash against merit selection systems. States may tire of delegating selection to unelected “elites” on nominating commissions and return to a quasi-federal model (as some states have recently done) in which gubernatorial nomination is paired with legislative confirmation. Alternatively, disenchantment with merit selection may spark a new movement back to partisan election systems (as some leading political scientists recommend), if states accept the argument that judges are not different enough from other public officials to warrant insulating judges from the partisan electoral processes.
Conversely, the handful of jurisdictions that have moved from partisan to nonpartisan systems in recent decades could snowball and effectively eliminate partisan systems altogether, if such a move is bought and sold as a way to diminish the corrosive new politics of judicial elections in jurisdictions loath to end contested elections altogether. Alternativey, state courts could decide a new wave of hotly contested issues, prompting a resurgence of big money in judicial races and a concomitant concern about the legitimacy of courts under the thrall of special interests that is sufficient to reinvigorate the merit selection movement. Or generalized disenchantment with the existing menu of selection systems generally, and reselection processes in particular, could spark a movement toward something new, such as the qualified election model that I have proposed (without really proposing). In short, the current lull between reform movements affords an important opportunity to reflect on next steps.
The essential thrust of this book is to make peace with the prospect of approaching without achieving consensus. Disuniformity is both inevitable and desirable. It is inevitable as long as state and regional histories, political cultures, and current events, differ significantly enough to cultivate competing views as to whether judges can be counted on to uphold the law without voter supervision. It is desirable, because a menu (p.172) of viable, alternative selection systems enables states to address the legitimacy problems that their courts encounter over time, without devolving into constitutional crises. There are good reasons to default in favor of appointive systems that keep the influence of interest group money at bay, and enable judges to apply the law, as they understand it to be written, without fear or favor. And there are circumstances in which that default should yield. Rather than fight the perpetual dynamism of diverse judicial selection alternatives in endless debates, perhaps the time has come to accept, and even celebrate that diversity.
(1.) See, e.g., Brian T. Fitzpatrick, The Politics of Merit Selection, 74 MO. L. REV. 675 (2009).
(2.) Chris W. Bonneau & Melinda Gann Hall, IN DEFENSE OF JUDICIAL ELECTIONS 138 (2009).
(3.) As discussed in chapter 2, the partisan election movement did not take flight during the Jacksonian era, when calls to hold judges accountable to the people were common. Rather, the movement was launched a decade later, as a means to end cronyism by severing gubernatorial control over judicial selection, and enabling judges to keep legislatures in check by ending legislative control over judicial selection and retention.
(4.) Charles Gardner Geyh, COURTING PERIL: THE POLITICAL TRANSFORMATION OF THE AMERICAN JUDICIARY (2016).