State court judges: elect, or appoint?

by Walter Olson on July 17, 2008

I’ve got a lengthy new post up at Point of Law on this topic. Excerpt:

some of our friends in the business community have lately been taking up as one of their big causes the direct voter election of state court judges. They argue in a populist vein that the common people ought to exert control over the judiciary and that methods such as gubernatorial appointment or “Missouri Plan” merit-screening panels are too open to influence behind the scenes from bar insiders, politicians, and trial lawyers. They also appear to believe that litigation outcomes will be fairer and more predictable from a business person’s point of view when judges hold their offices by election than when they are appointed. … I must say that I find it really odd that business groups have gone off on this kick….

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07.18.08 at 2:04 pm

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1 Bob Neal 07.17.08 at 11:11 am

Agree. Elected judges are too easily influenced by attorney contributions and the whims of the electorate (look at WV for crying out loud). Appoint them, for life, or a long, non-renewable term. Thus, they don’t have anyone they have to pay back by way of their rulings.

2 Joe Bingham 07.17.08 at 12:43 pm

Hm… maybe the best way would be some truly ideology-neutral way of selecting them. LSAT scores, maybe?

3 Bumper 07.17.08 at 12:45 pm

The only businesses I know that are in favor of elected judges are the ones who profit from the election process.

Radio and TV stations
Newspapers and magazines
Printers and related Graphic Arts
PR and Ad agencies
Pollsters
and probably a bunch more I haven’t even thought about.

“Thar’s big money in them there elections” and not always where you think.

4 Jim Copland 07.17.08 at 2:05 pm

[To be cross-posted in more detail at Point of Law.]

Readers should also be aware that this topic also came up in last week’s excellent NewTalk.org discussion of judicial activism. (See: http://newtalk.org/2008/07/what-is-the-role-of-the-courts.php.)

Our friend Ted Frank had this to say:

Robert Joffe suggests that the problem with judges is that they are largely selected through “elections or political appointments, rather than true merit selection.” I query what he means by “true merit selection.” Missouri ostensibly has a “merit selection” process that is often held up as a model, but one sees no indication that Missouri judges are superior to other judges. Indeed, the Missouri merit selection process has been notoriously captured by the special interest of the plaintiffs’ bar.

On the Missouri point, Ted linked to the following Federalist Society report: http://www.fed-soc.org/publications/PubID.90/pub_detail.asp.

The report notes in part:

The classic study of the first 25 years of merit selection in Missouri is a book by Richard A. Watson & Rondal G. Downing, The Politics of the Bench and the Bar (1969). A recent textbook summarizes their findings as follows:

[I]n the process of selecting lawyer members of the nominating commissions, attorneys tended to split into two groups [plaintiffs’ lawyers and defense lawyers], much in the manner of a traditional two-party system. Far from bringing more Aprofessional values to bear on the selection process, the attorneys tended to focus on more tangible selection criteria, in particular the socioeconomic interests of their clients . . . . As it turned out, these competing plaintiff and defendant bar interests were about equally successful in obtaining commission seats, the result being a rather well-balanced two-party competition in the Kansas City and St. Louis bars.

Thus, far from taking judicial selection out of politics, the Missouri Plan actually tended to replace politics, wherein the judge faces popular election (or selection by a popularly elected official), with a somewhat subterranean process of bar and bench politics, in which there is little popular control.

It appears that the situation in Missouri has deteriorated even further since Watson and Downidle wrote in 1969. In a recent Rule of Law column in the Wall Street Journal, Elliot Kaplan opined that Missouri is Acreeping up on our famous brethren Alabama and Texas in the adoption of inefficient tort law. According to this Kansas City lawyer, Missouri currently suffers from runaway jury verdicts, a judiciary afraid to make necessary reforms, and a legislature and state government controlled by the plaintiffs’ bar.” Kaplan notes the increase in large damage awards by Missouri juries, explaining that in 1995 four of the six largest jury verdicts in the country were awarded in Missouri.

5 demosthenes.or.locke 07.17.08 at 2:08 pm

West Virginian here. Appointment might not be the ideal solution, but it is a hell of a lot better than electing them. Between the plaintiffs’ bar and business interests, the cost of buying a judge has skyrocketed in this state! Whats an average citizen to do?

6 Shira Goodman 07.17.08 at 2:15 pm

Thanks for this thoughtful examination of the debate over judicial selection. Pennsylvanians for Modern Courts and PMCAction advocate for instituting a merit selection system for Pennsylvania’s appellate courts. Our Coalition of supporters include many business groups and organizations that share your view about the best way to get good judges on fair courts. The escalating “arms race” of fundraising for judicial campaigns is burdensome for businesses and others and undermines public confidence in the judiciary. For more information about the reform effort in Pennsylvania, visit http://www.judgesonmerit.org.

7 K.O. Myers 07.17.08 at 3:51 pm

Bumper, I think it’s worth noting that, at least in Pennsylvania, most of the daily and weekly newspapers that have expressed an opinion about judicial selection have editorialized in favor of a Merit Selection system. Very few of them have written in favor of keeping judicial elections.

8 Timothy E. Harris 07.17.08 at 3:53 pm

A middle road that seems to work well where I have seen it implemented is appointed judges who must periodically pass a retention election.

Retention elections allow us to remove the rare really awful judge from the bench if need be without the downsides of having judges elected in a partisan election.

9 Stop Lembke 07.17.08 at 4:33 pm

Citing his attack on the state’s judiciary and values out of touch with Missourians, the Committee to Stop Lembke was created to oppose the election of Jim Lembke to the State Senate. Rep. Jim Lembke has proposed eliminating the Missouri Nonpartisan Court Plan, which has protected Missouri courts for nearly seven decades by requiring the selection of judges based on merit rather than on political affiliation. Check out this campaign here – http://www.stoplembke.com

10 Christoph 07.18.08 at 5:54 am

I’m an attorney from Germany who worked in California for a few months back in 1999; I’m interested in the differences between the two legal systems – you learn a lot, both ways.

However, electing judges, especially having them elected by the common non-lawyer people, is a thought that all German attorneys, judges, and prosecutors I know can hardly accept as serious possibility to get them on the bench. In Germany, only the best few percent of all graduates of the final law school exams qualify for being judge or prosecutor, and they are simply hired by the states’ departments of interior and/or legal affairs. After a period of two years they are usually finally hired as a kind of state servants “for life”. So they are sure to be independent of the trial’s parties.

Downside: A middle-aged judge who sees himself already at the highest step of his career ladder may be a bit slower and lazy…

11 Ted Frank 07.18.08 at 9:14 am

The fact that trial lawyers are starting Astroturf campaigns to punish Paul Lembke for defying their wishes is reason enough to support him. (The treasurer of the anti-Lembke committee is plaintiffs’ lawyer Paul J. Passanante.) Walter’s support of the Missouri Plan, which, as Jim notes above, has been completely captured by trial lawyers, is mysterious. One can oppose judicial elections in principle without calling for the process to be turned over to the plaintiffs’ lawyers.

12 cowpill 07.18.08 at 9:47 am

I have personaly been on the loosing side when a “Donation” was made to a Judges re-election campaing. But on the flip side when you appoint you get the 9th circut.

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