Since retiring from the Supreme Court, Justice O'Connor has been advocating the elimination of elections for judges. I agree with her up to a point. The point of disagreement is that she advocates the adoption of so-called "merit selection" systems instead. Today, in Arizona, Howard Fischer reports for Capitol Media Services,
To illustrate why, let us do a little "thought experiment." Let us go back to 1981. Justice Potter Stewart has announced his retirement. Now let us suppose that President Reagan is constitutionally constrained to appoint from a list of 3 names prepared by the American Bar Association. Who is on the list? Rose Bird, Laurence Tribe, and Alan Dershowitz, perhaps. Who would not have had a snowball's chance in hell of being on that list? An intermediate state appellate court judge from "flyover country."
On a 4-3 party-line vote, the Senate Judiciary Committee approved a measure that would scrap the "merit selection" process now used to choose the judges for the state Supreme Court, the Court of Appeals and the superior courts in Pima and Maricopa counties.* Instead it would mirror the federal system, with the governor getting to name who she or he wants, subject only to Senate confirmation."Merit selection" sounds great, but the devil is in the details, as it so often is. Who decides merit? In most states having a system with that label, the governor is constrained to choose from a short list prepared by a commission. Also, in most states, the state bar dominates the commission. So instead of replacing politics with merit, so-called "merit selection" just replaces general politics with bar politics. Given that choice, general politics is the better of the two.
To illustrate why, let us do a little "thought experiment." Let us go back to 1981. Justice Potter Stewart has announced his retirement. Now let us suppose that President Reagan is constitutionally constrained to appoint from a list of 3 names prepared by the American Bar Association. Who is on the list? Rose Bird, Laurence Tribe, and Alan Dershowitz, perhaps. Who would not have had a snowball's chance in hell of being on that list? An intermediate state appellate court judge from "flyover country."
I have a high regard for Justice O'Connor's contributions to jurisprudence. I am particularly fond of Teague v. Lane, 489 U.S. 288 (1989), and Coleman v. Thompson, 501 U.S. 722
(1991) (admittedly a somewhat less than completely objective opinion). There is not
the slightest doubt in my mind that those cases would have been decided
differently and far worse if the federal government had had "merit
selection" of judges in the 1980s.
Of all the people we might choose as gatekeepers to the bench, I would rate the state bar dead last. Lawyers as a profession have an interest in judicial activism. When all important decisions are made by the courts, and statutes democratically enacted are little more than staff recommendations, lawyers as a group become more important in society. But the system of checks and balances is already deficient for having insufficient checks on a runaway judiciary. A selection system that tilts the courts even further in the direction of their own aggrandizement is the last thing we need. Lawyers should have no more say in the selection of judges than any other citizens.
"Merit selection" is nothing of the sort. States that have it should dump it. Those that want to get rid of contested elections, with a named opponent on the ballot, should look to California's appellate judge system for an example -- appointment by the governor with yes/no confirmation by the people at long intervals. The system has proved as close to optimum as any. It provides close to life tenure with a safety valve we have only used once, exactly when it should have been used. In 1986, we dumped a set of judicial autocrats and produced a vast improvement in the quality of jurisprudence. No other system does it better.
* Maricopa and Pima Counties are Arizona's two largest counties, Phoenix and Tucson, respectively, and their vicinities.
Of all the people we might choose as gatekeepers to the bench, I would rate the state bar dead last. Lawyers as a profession have an interest in judicial activism. When all important decisions are made by the courts, and statutes democratically enacted are little more than staff recommendations, lawyers as a group become more important in society. But the system of checks and balances is already deficient for having insufficient checks on a runaway judiciary. A selection system that tilts the courts even further in the direction of their own aggrandizement is the last thing we need. Lawyers should have no more say in the selection of judges than any other citizens.
"Merit selection" is nothing of the sort. States that have it should dump it. Those that want to get rid of contested elections, with a named opponent on the ballot, should look to California's appellate judge system for an example -- appointment by the governor with yes/no confirmation by the people at long intervals. The system has proved as close to optimum as any. It provides close to life tenure with a safety valve we have only used once, exactly when it should have been used. In 1986, we dumped a set of judicial autocrats and produced a vast improvement in the quality of jurisprudence. No other system does it better.
* Maricopa and Pima Counties are Arizona's two largest counties, Phoenix and Tucson, respectively, and their vicinities.
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