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Is there a better way to choose state Supreme Court justices?

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Todd A. Berry
October 1, 2011
— Is it any wonder that Wisconsin citizens ask whether there is a better way to choose state Supreme Court justices? Colonists objected to George III’s appointing and removing judges at will, and Americans have fought over judicial selection ever since.

Despite multiple reform attempts over 200 years—life appointment, partisan and nonpartisan election, and merit selection—state practice and recent experience suggest none is ideal, particularly in today’s political environment.


Our nation’s Founders thought naming federal judges for life would correct the flaws of royal appointment. The first 13 states authorized governors (or legislatures) to name Supreme Court justices. With opposition to patronage appointments, states began shifting to partisan election in the 1800s.


Public dissatisfaction with partisan bias led to nonpartisan elections, replacing partisan ones in several states in the 1900s. In 1940, Missouri introduced merit selection: An appointed commission submits names to a governor, who selects a justice, who must later face a retention election.


Today, states use many forms of judicial selection. None appears superior. Twelve states use some form of appointment. Twenty-two use elections—eight partisan and 14 nonpartisan. Sixteen states follow the Missouri plan.


Now, merit is getting attention. Advocates say merit combines the best of appointment and election. A commission that screens and recommends candidates for appointment, advocates say, is likely to produce more high-quality, independent applicants and eventual nominees than other, more political methods. Supporters also say no state has repealed the Missouri plan, once adopted.


Critics counter that no state has adopted Missouri’s approach in 25 years. They call merit elitist because judges and lawyers dominate nominating panels. And, as an ongoing dispute in Missouri shows, merit can be partisan because appointment panels are often partisan. Critics also say merit is undemocratic and favors incumbents because retention elections offer voters no choice.


The greatest challenge to merit selection, however, may be nasty and costly campaigns. As a Rutgers political scientist told an American Bar Association (ABA) judicial reform commission, merit retention races are “indistinguishable from partisan contests.”


Why? Experts point to a “new politics” characterized by polarized, two-party competition; the emergence of massive, independent expenditures funding attack ads; and uncompromising single-issue advocates.


These trends are unlikely to abate. Competing activists press state supreme courts, as never before, to settle fundamental legal questions.


That there’s no “silver bullet” to judicial selection is no surprise. Debate over the issue predates the nation. It hinges on the irreconcilable tension between the public’s desire for justices who are both accountable to them and fair and impartial in decision-making.


However, a few suggestions to the ABA panel deserve discussion. One would professionalize elected state courts with “a program of training for aspiring judges that would lead to a credential.” Because almost 90 percent of state judges are already elected, another idea promotes longer elective terms. Another goes further—one long, nonrenewable term (or even life tenure with a set retirement age). This approach would balance the public’s desire to elect judges with the hope for judicial independence.


Todd A. Berry is president of the Wisconsin Taxpayers Alliance. Contact him at (608) 241-9789 or wistax@wistax.org. The nonprofit, nonpartisan government-research organization was founded in 1932. It aims to improve Wisconsin’s government through citizen education.

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