Originalism, Balanced Legal Realism and Judicial Selection: A Case Study

Originalism, Balanced Legal Realism and Judicial Selection: A Case Study

The "balanced realist" view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

New Missouri Constitutional Amendments Would Elect State Supreme Court Judges

Selecting judges through a nominating commission that gives special powers to the bar is the core of  "Missouri Plan" systems used in several states and called "merit selection" by those who favor it.  The first state to enact such a system, Missouri, has in recent years seen many proposals for change.  Just this month, the Missouri secretary of state’s office has approved for circulation two initiative-petition ballot proposals that would have partisan elections for the state’s Supreme Court.
Either measure would be a proposed constitutional amendment if it gets signatures from at least 157,788 Missouri voters.

 More on the Missouri Plan here in an article in the Missouri Law Review.

Defenders of Missouri's current judicial selection system are here

Advocates of change are discussed here with a video of James Harris here

Republican Judicial Nominees from the Federalist Society

Writing on the US Senate's end to the filibuster for federal judicial nominees (except the Supreme Court), The Wall Street Journal's editorial board says "The next GOP President should line up Federalist Society alumni for judicial nominations like planes waiting to take off at O'Hare International Airport."

Senate Democrats Trigger 'Nuclear' Option to End Filibuster of Judicial Nominees

As the Washington Post explains, "Democrats used a rare parliamentary move to change the rules so that federal judicial nominees and executive-office appointments can advance to confirmation votes by a simple majority of senators, rather than the 60-vote supermajority that has been the standard for nearly four decades."

Video here

Tennessee Bar Association Supports Proposed Constitutional Amendment

The Tennessee legislature approved a proposed constitutional amendment to select its supreme court through a federal model system of  gubernatorial appointment subject to legislative confirmation. 
In November 2014, the states voters will decide whether to adopt this amendment. It recently gained the support of the Tennessee Bar Association.   Below the judicial selection amendment is discussed by Tennessee Lt. Governor Ron Ramsey

Judicial Elections in Alabama Criticized by the New York Times

A very strongly worded editorial,  entitled "Death Meted Out by Politicians in Robes."  the Times' editors write "In nearly all of the 32 states that permit capital punishment, a jury makes the final decision on whether a defendant will live or die. Not so in Alabama, where elected judges may override a jury verdict of life in prison and unilaterally impose a death sentence."  "Justice Sotomayor rightly identified the reason Alabama’s judges impose more death sentences per capita than any other state. The judges, she wrote, 'who are elected in partisan proceedings, appear to have succumbed to electoral pressures.'”

Of course, a candidate running for office in Alabama may benefit from the opposition of the New York Times.  I recall that when I first moved from New York City to Alabama, I saw a bumper sticker that read "If you love New York, take I-95 North."

My own writing on judicial elections in Alabama is here.

Oklahoma Supreme Court Judicial Selection Reform

An earlier post noted that Oklahoma is considering changes to its judicial selection system.  This upcoming event in Tulsa looks very good because it features a member of the Oklahoma Judicial Nominating Commission and two bright and interesting academic experts, Professors Brian Fitzpatrick (Vanderbilt Law) and Chris Bonneau (U. Pittsburgh).

Another reason to expect this will be a good event: it promises discussion of all three of the common judicial selection methods in the country: "Oklahoma Supreme Court Judicial Selection Reform: Elections vs. Appointment vs. Nominating Committee."  These tend to be much better discussions than discussions considering only two of the three.

Good of the Federalist Society, particularly its Tulsa Lawyers Chapter, to host it.

Pennsylvania Amendment to Replace Judicial Elections

Malia Reddick writes the "proposed constitutional amendment would replace partisan elections with a commission-based gubernatorial appointment and senate confirmation process."  I encourage Malia to stick with that phrase "commission-based" rather the term "merit selection" which Prof. Michael Dimino calls "propagandistic".  For more about the problems with the term "merit selection," see this.

Caperton and Money in Judicial Races

After teaching the Caperton case, Stetson Law Professor Ciara Torres-Spelliscy asks "whether electing judges with private funds makes for a respectable and functional justice system."  One of her answers "more than any other elective office, judicial elections would benefit from public financing."

Pennsylvania Group Seeking to Replace Judicial Elections

 Pennsylvania Group Seeking to Replace Judicial Elections with a nominating commission that would send a list of nominees to the governor, who then appoints one of them, subject to Senate confirmation. 

Oklahoma Legislators Considering Switch From Missouri Plan to Federal Model or Elections

Oklahoma Considering Switch From Missouri Plan to Federal Model or Elections

"advocating for the current selection process to be changed to a federal system, in which the governor would nominate a candidate to be approved by the senate, or judicial elections"

State Supreme Court Selection Around the United States: The Missouri Plan in National Perspective

The Missouri Plan in National Perspective

We should distinguish the process that initially selects a judge from the process that determines whether to retain that judge on the court. Judicial selection and judicial retention raise different issues. In this article, I primarily focus on selection. I summarize the fifty states’ methods of supreme court selection and place them on a continuum from the most populist to the most elitist. Doing so reveals that the Missouri Plan is the most elitist (and least democratic) of the three common methods of selecting judges in the United States. After highlighting this troubling characteristic of the Missouri Plan’s process of selecting judges, I turn briefly to the retention of judges and caution against the dangers posed by subjecting sitting judges to elections, including the retention elections of the Missouri Plan. I conclude with support for a system that, in initially selecting judges, avoids the undemocratic elitism of the Missouri Plan and, in retaining judges, avoids the dangers (populist and otherwise) of judicial elections.