Judicial elections, democratic appointment (e.g., senate confirmation), and the Missouri Plan (a/k/a "merit selection")

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Saturday, February 8, 2020

Utah Judicial Selection in National Perspective

Utah is interesting, and not just for Mitt Romney being the only senator to break from party over removing President Trump from office. A proposed amendment to the Utah Constitution is a chance to note that Utah is also interesting because its method of supreme court selection seems to appeal both to advocates of "merit selection" and to people (like me) who reject that label, and what it often conceals, in favor of "democratic appointment."

The gist of "merit selection" (better called the "Missouri Plan") is that applicants for a judgeship are vetted by a nominating commission that supposedly cares about "merit" rather than "politics". Only the commission's three (or so) finalists may be chosen by the governor to fill the judgeship.

With the commission playing such a key role as gatekeeper to the court, the key is who appoints the commission? Who picks the picker?

Unfortunately, many "merit selection" states allow the bar to pick some members of the commission,  which violates basic democratic equality by privileging lawyers above their fellow citizens in the selection of important public officials. These officials, as every lawyer knows, sometimes move the law in a progressive direction or a conservative direction. State supreme court justices are important lawmakers.

Important lawmakers should, in our democratic society, be exercised by people selected in a democratic manner.

Fortunately, this does not have to mean electing judges. That sort of direct democracy is not as good for judges as the indirect democracy of having the executive and legislative branches select the judicial branch, as we do for federal judges with senate confirmation. In fourteen states (listed below), the governor's judicial nominees to the highest court are confirmed by the senate, whole legislature, or other popularly-elected officials. This is the usual method of "democratic appointment" I support.

But suppose the governor must pick from a commission's finalists before sending the governor's pick to the senate for confirmation? That three-step process (commission to governor to legislature) is  how Utah judges are selected.

This is still "democratic appointment" if the commission is selected in a democratically-legitimate way, as opposed to having commissioners selected by the bar. Fortunately, 4 of the 7 members of the Utah Appellate Nominating Commission are selected in a democratically-legitimate way--by the governor. Two more the governor also gets to appoint but only from a list of nominees submitted by the Utah State Bar. The chief justice appoints another member of the Utah Judicial Council to serve as a nonvoting member of each commission.

So Utah does give the bar a formal role it should not have w/r/t 2 of the 7 commissioners. But that's far from the states that allow the bar to pick (not merely suggest names to the governor) about half the commission. And I wonder whether Utah governors ever reject the bar's suggestions as occurs in Florida, which has a similar system?

Utah calls its system "merit selection" and its constitution says "Selection of judges shall be based solely upon consideration of fitness for office without regard to any partisan political consideration."
Yet it nevertheless manages to be (almost completely?) democratically legitimate. Good for Utah.

The 16 states that select their high courts with a democratic method of appointment are:

New Hampshire
New Jersey
New York
Rhode Island
South Carolina

Wednesday, February 5, 2020

Voting in Judicial Retention Elections

Voter Response to Salient Judicial Decisions in Retention Elections is an interesting article by Yale Professor Allison P. Harris. Among its points:

"Appointed judges are generally accountable to whichever branch of government (executive or legislative) they rely on for appointment and reappointment. Citizens can hold elected judges accountable with their votes. However, most of the factors driving voter participation in judicial elections are associated with partisan and competitive, rather than retention, elections.
Nonpartisan uncontested judicial retention elections occur in many states for a variety of types of courts.
However, they are especially common in states, like Iowa, that have adopted the Missouri Plan, also referred to as merit selection, for the selection and retention of judges."

"High-profile campaigns against judges running for retention, like the one in Iowa in 2010, are not the norm, and most campaigns will not achieve their goal of removing judges from the bench. But justice removal is not the only reason we should be interested in campaigns against retention and shifts in retention race results. If voters are the only ones who can punish or reward Missouri Plan judges after appointment, then it is important to understand the factors related to shifts in participation in these races. The results of analyses presented in this article suggest that we need to take greater care in evaluating the extent to which judges who run in retention elections are independent from voters. Voters do respond to salient decisions and mobilization in retention races. Even if the judges running in these elections are ultimately retained because more of the voters cast yes votes than no votes, they are not as independent from voters as opponents of retention elections often argue."