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The Meritlessness of So-Called "Merit Selection"

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The WSJ has an editorial titled "Judges, Politics, and George Soros."

Of all the ways to select judges, among the worst is to restrict the chief executive to choosing from a short list given to him by a committee dominated by the state bar.  This method is sometimes called the "Missouri plan."  A common and grossly misleading name is "merit selection."  The theory is that the commission is made up of fine, nonpartisan, upstanding people who will select on the basis of merit, free from political considerations.  The reality is that the commissions come to be dominated by the political left, and the governor is forced to choose the least bad of a short list of judicial activists.  So-called "merit selection" actually just substitutes bar politics for general politics, a change from bad to worse.

Another bad way to choose judges is to have them run for election like other elected officials, with political party nominations and named opponents on the ballot.  Pennsylvania has had some bad experience with this lately.  The editorial notes that three former governors are now pushing for the state to change from bad to worse.

Meanwhile, states that have tried the "Missouri plan" and are fed up with it are moving in the other direction, according to the editorial.
In Tennessee, the proposal is to adopt a novel idea from 1787: executive nomination with Senate confirmation.  In Kansas, this change has been made for the intermediate appellate court by legislation.  Apparently a constitutional amendment is not needed at this level.  (See Gov. Brownback's press release.)  The biggest problem in Kansas, though, is the state supreme court.  A constitutional amendment dumping the state bar from its domination of the process has passed the Senate but is stalled in the House.

The federal model is an improvement over the Missouri plan, but it has its problems as well.  The judicial confirmation battles in the U.S. Senate are hardly ideal.  The worst part of the federal system, though, is that once a bad nomination gets through there is no way to correct the error.  Out here in the West, we still suffer from bad nominations made by Jimmy Carter a third of a century ago.

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I can't say which method is best, though I think in general (my experience) is that federal district court judges are far superior than superior court judges, at least in California. That being said, if I was king for a day, I'd appoint / elect trial court judges by speciality like Article I Judges in bankruptcy, tax etc... and how Texas does it with the Court of Criminal Appeals. I think that'd have a much more competent judiciary than we see now.

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