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Justice O'Connor on Judicial Selection and Retention

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Retired Justice Sandra Day O'Connor has this op-ed in the NYT. It is more balanced than her past efforts in the area, but I am not sure she yet appreciates how the "merit selection" cure can be worse than the disease.
Each state has its own method of choosing judges, from lifetime appointments to partisan elections. But judges with a lifetime appointment are not accountable to voters. And elected judges are susceptible to influence by political or ideological constituencies.
Okay, good that she is recognizing the double-edged nature of the problem.

A better system is one that strikes a balance between lifetime appointment and partisan election by providing for the open, public nomination and appointment of judges, followed in due course by a standardized judicial performance evaluation and, finally, a yes/no vote in which citizens either approve the judge or vote him out. This kind of merit selection system -- now used in some form in two-thirds of states -- protects the impartiality of the judiciary without sacrificing accountability.
Yes, nomination followed by yes/no retention votes, the system we have for appellate judges in California, is better than either directly contested elections or life tenure. But how exactly is the "nomination" part done?

In a merit selection system, a nonpartisan nominating commission interviews and investigates applicants for judicial vacancies, and ultimately recommends a few candidates to the governor. The governor appoints one from the list. Regular "retention" elections are held to allow voters to decide whether to keep the judge in office.

There are those who assert that this system benefits legal insiders, because lawyers will inevitably dominate the nominating commissions, which would hold their meetings in secret. But to the extent that this could be a real problem, Arizona has already demonstrated how to avoid it. In that state, nominating commissions are dominated by non-lawyers, and their meetings are open. Candidates' applications are available online, and the public is invited to comment.

"Could be a real problem"? It is a huge problem. In most states with so-called "merit" selection, the cure is worse than the disease. Rather than removing politics from the system, it substitutes bar politics for general politics, out of the frying pan and into the molten lava.

Can the problem of nominating commissions be fixed, as Justice O'Connor says Arizona has done? I'm not familiar with the situation there. I would be interested hearing from anyone in a state that actually has fixed the problem.

My own view is that nomination by an unfettered executive, elected by and directly responsible to the people, is the least bad of the available options. That is, after all, how Justice O'Connor herself was selected. To be sure, the system has produced some immensely bad choices as well, but I am very skeptical of the claim that any commission is actually better. Any thoughts, readers?

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The lawyer hierarchy does not like the tastes of the voting public.

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