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Merit Selection, Not

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"What's in a name?" asked Juliet. "That which we call a rose by any other name would smell as sweet." Actually, quite a lot is in a name. If you can succeed in getting a proposal called by a wholesome-sounding name, it's a lot easier to sell, even if that name bears little relation to the proposal.

"Merit selection" of judges sounds like a great idea, but the schemes that go under that name typically involve transfer of some portion of the appointment power to the State Bar. One would have to be astonishingly naive to think that the bar is going to choose judges on the basis of merit and not bar politics. Far from getting politics out of the selection process, these schemes merely replace general electoral politics with bar politics, and that is a step down, not up. The Wall Street Journal has this editorial today on the goings-on in Missouri. Under the "Missouri Plan," the governor is limited to choosing between three nominees picked by a commission, and 3 of the 7 members of the commission are chosen by the State Bar.

Handing such power over the third branch of government to the state's lawyers is an exceptionally bad idea. The overwhelming problem with the judiciary in America today is judicial activism. An activist court is one that usurps to itself decisions of policy that the Constitution actually vests in the people through the democratic process. Every time a court usurps such a power it violates the Constitution on the pretense of defending it. Regrettably, both state and federal constitutions in the United States have insufficient checks against judicial activism. The best check is to appoint only judges who are solidly committed against such violations of the people's constitutional right of self-government.

Is the State Bar likely to nominate such judges? Hardly. The legal profession has a vested interest in judicial activism. It makes our profession more important and more powerful relative to everyone else. With activist courts, legislation and democracy are relegated to minor matters. For all really important decisions, an act of Congress or of the State Legislature is little more than a staff recommendation to the real decision maker: the judiciary. The bench, and by extension the bar, loom much larger in the governmental picture in such a regime.

How should judges be appointed and retained? The California system of executive appointment with periodic yes/no confirmation by the people is not perfect, but it is the least bad of the available choices. The federal system of executive nomination, legislative confirmation, and life tenure has its merits, but mistakes on the front end have left us with some insufferable autocrats and no good way to get rid of them. Partisan elections, with named opponents on the ballot, are worse. And dead last of all the ways to select judges is to hand the power to the State Bar. That which we call a skunk still stinks, even if you call it "merit selection."

1 Comment

They have merit selection in Indiana. It has produced some good choices and some hacks.

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