The Future of Judicial Selection

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 New Judicial Selection Landscape

Chapter 3 maps the current judicial selection landscape by describing a series of developments decades in the making that has altered the political environment of judicial elections in fundamental ways. The chapter begins with a table showing the breakdown across all fifty U.S. states regarding which of the five methods of selecting judges are used by each state in selecting its high court judges. An additional table demonstrates how each state treats the reselection of a judge after the judge’s initial appointment or election. The chapter then turns to the contributing causes of the new politics of judicial elections, which include the weakening of the Democratic Party in the southern states, the rise of discretionary Supreme Court Review and the decline of mundane cases, the migration of civil rights and civil liberties campaigns to state courts, the role judges play as enemy combatants in the War on Crime, and the battle for tort reform going on in the state courts, which have resulted in the changing landscape of the American judiciary. The chapter concludes with a discussion of the consequences of these changes.

A Short and Pointed History of Judicial Selection

Chapter 2 places the current state of affairs in context, with a short history of judicial selection in the United States, touching on the five distinct methods of judicial selection that have evolved over time. It begins by discussing colonial rule and gubernatorial appointments, then moves to early statehood and legislative appointments. The Age of Jackson is then examined, in particular Jacksonian democracy and its aftermath, which saw the rise of partisan judicial elections. The chapter then discusses how the Populist-Progressive era ushered in the advent of nonpartisan and recall elections. Finally, it describes the merit selection movement in the twentieth century before concluding that in the modern era, the American judiciary has undergone a political transformation that has placed increasing emphasis on constraining independence and enhancing political control.

Introduction

Chapter 1 introduces the long-standing debate over how best to select judges in the United States and summarizes the positions of the disputants to the end of exposing the interminable and seemingly unresolvable nature of that debate. When a court issues a decision that at least some of the population finds objectionable, the fate of its judges may depend on whether they are appointed or elected. To illustrate, the chapter contrasts the lack of impact on the U.S. Supreme Court justices from any backlash in their upholding same-sex marriage in Obergefell v. Hodges versus the failure in retention elections of Iowa Supreme Court justices following their upholding same-sex marriage in Varnum v. Brien.

The Arguments

Chapter 4 lays out the respective arguments for appointive and elective systems, against the backdrop of the new politics of judicial selection. It describes how gubernatorial appointment and merit selection systems are essentially pitted against partisan and nonpartisan election systems, and there is a peril to this binary approach in that it overlooks important distinctions between partisan and nonpartisan election systems on the one hand, and merit selection and traditional appointive systems on the other. The discussion begins with the role of the judge in American government, and the case that can be made for appointed judiciaries. It then makes the case for elected judiciaries before launching into the case for incremental reform.

Managing the Selection Debate

Chapter 6 argues that we can come closer to consensus in the judicial selection debate by confronting and overcoming the errors and exaggerations that chapter 5 isolates. That said, complete consensus is likely to remain elusive because ultimately, judicial independence from electoral accountability is both in tension with and essential to democracy. As the chapter discusses, appointive systems are a preferable default, but there are circumstances in which electoral accountability can be essential to the judiciary’s perceived legitimacy with the general public. The chapter also suggests ways in which elected judiciaries can be made more impartial and independent, including reforming campaign finance, amending disqualification rules, and lengthening judicial terms, as well as greater accountability, as well as the ways that appointed judiciaries can be made more accountable via publicizing existing accountability-promoting mechanisms, reinvigorating disqualification procedure, and instituting rigorous judicial performance evaluations.

Why Everyone Is Wrong

Chapter 5 revisits the arguments summarized in chapter 4, to the end of showing how and why arguments for and against each system are exaggerated, misleading, and wrong. The focus is on work that seeks to support or refute claims contributing to the binary arguments that dominate the public discussion of judicial selection—work that is most vulnerable to being overstated in the service of winning debates. The discussion begins by deconstructing the arguments, describing the foundational dispute over judges and their roles; the specific arguments for and against elective systems, and for and against appointive systems; and the arguments over incremental reform. The chapter concludes by discussing the topics of why disputants overstate their claims, path dependence and competing narratives, coping with cognitive dissonance, and dueling publics.