Views expressed in this paper are those of the authors only, and do not necessarily represent those of the Federalist Society or its membership.
Michael DeBow is the Professor of Law at Cumberland School of Law, Sanford University, since 1988. He is co-editor of the Federalist Society’s pre-law reading list and bibliography of conservative and libertarian legal scholarship. He was law clerk to Judge Kenneth W. Starr, USCA for the D.C. Circuit, 1983-84. He received his J.D. from Yale in 1980.
Diane Brey is of counsel to the law firm of Bricker & Eckler LLP in Columbus, Ohio. She practices in the areas of education law, election law, constitutional law, and litigation and appellate matters. She served from 1995-97 as the Section Chief of the Ohio Attorney General’s Chief Counsel’s staff.
Erick Kaardal is an attorney at Trimble & Associates, Ltd., in Minnetonka, Minnesota.
John Soroko is a partner in the Philadelphia-based law firm of Duane, Morris & Heckscher LLP. His practice includes corporate and commercial litigation, including class actions. He was a co-founder of the Philadelphia Lawyers Chapter of the Federalist Society.
Frank Strickland is a senior partner in the law firm of Wilson Strickland & Benson in Atlanta, Georgia. He received his undergraduate education at Vanderbilt University and earned his law degree from Emory University. He is a past president of the Atlanta Bar Association and a former chairman of the State Ethics Commission. He has served on several judicial selection committees for the appointment of federal and state court judges.
Michael Wallace is a partner in the Jackson, Mississippi office of Phelps Dunbar. His practice is concentrated in commercial and constitutional litigation, with special emphasis on appeals in both the state and federal courts. He served as a law clerk to Justice William Rehnquist of the United States Supreme Court. Recently, he served as Special Counsel to Senator Lott for the impeachment trial of President Clinton.
What is the best way for states to select judges? The debate over this question is more than 160 years old. This paper summarizes the best arguments in favor of the election of state judges by the citizenry, following partisan election campaigns. Some of the arguments we make have been made many times over this 160-plus year history, and some -- we believe -- are novel.
This paper will not argue that judicial elections are flawless, only that they are better than the alternatives. Nevertheless, we think we can persuade the uncommitted reader that partisan judicial elections have substantial advantages over the alternatives not least in that they provide an additional, significant measure of self-government to voters. We will argue that this additional element of accountability to the public is likely to become even more important in the future: as the legal system comes under increasing destructive pressures from the more aggressive elements of the plaintiffs' bar (as, for example, in the recent tobacco and on-going gun lawsuits brought by private plaintiffs' attorneys on behalf of various states and cities), the public in states which elect judges will be better able to rein in the judiciary and block the continued deterioration of the civil justice system.
I. Historical perspective
State judicial selection occurs by one of two methods, broadly speaking -- either appointment or election. American states have had extensive experience with both. In the early years of the Republic, state judges were appointed by the governor or the legislature. This status quo was challenged in 1832 when Mississippi became the first state to write a constitution decreeing that all state judges were to be selected by the voters. New York followed suit in 1846, setting an example followed by numerous other states:
While every state that entered the Union before 1845 had done so with an appointed judiciary, every state that entered between 1846 and 1912 provided for judicial elections. In the more established states, furthermore, all but two of the sixteen constitutional conventions held between 1846 and 1860 called for the popular election of both appellate and inferior judges. As the nation approached the Civil War, two of every three states elected their lower courts and three of every five states elected their supreme courts.
In the late 19th century the pendulum began to swing back towards appointment, as progressives and various other reformers began to agitate against judicial elections. In 1914, a Northwestern University law professor named Albert M. Kales proposed an alternative Amerit selection model. Under this scheme, a state's governor fills a vacant judgeship by appointing one of the people suggested by a panel containing lawyers and lay persons who assess each candidate's qualifications. Those individuals selected for the bench serve for a short period and then face the electorate in an uncontested Aretention election
that determines whether they will serve a full term.
Interestingly, no state followed Missouri’s lead for 18 years. Then, in the period 1958-1976, nineteen additional states adopted the Missouri Plan. The reasons for this shift remain unclear to political scientists who have studied the politics of the period.
Significantly, then, both of the broad selection mechanisms -- appointment and election -- have dominated the practice of American states at different times in our history. If history is any guide, then both mechanisms can claim some legitimacy from prior use.
As a result of this back-and-forth movement between appointment and election, the current line-up of states and selection methods is as follows:
Merit selection through nominating commission -- 13 states & D.C.
Gubernatorial or legislative appointment without nominating commission -- 7 states
Partisan election -- 7 states
Nonpartisan election -- 14 states
Combined merit selection and other methods -- 9 states
How should one think about the choice between appointment and election in this context?
II. The selection of judges: rhetoric and the empirical evidence.
The choice between appointment and election is often presented as a choice between judicial Aindependence and judicial Aaccountability, respectively. Obviously, at some level of abstraction, both of these qualities are desirable. We want judges to be Aindependent in the sense that they are not dependent on any individual or group that might exert some influence on their decisions, in the sense that they will apply the law fairly and without favoritism, and the like. We also want judges to be Aaccountable to the public in the sense that they do not exercise their power arbitrarily, or in ways that undermine the judicial and political systems they have sworn to uphold.
Conversely, of course, too much of either virtue is unattractive. Judges who are Atoo independent might, at the limit, make arbitrary and idiosyncratic decisions, while judges who are Atoo accountable might, at the limit, make decisions based on public opinion polls, political party preferences, and the like.
What to do? Ideally, we want a system that selects judges who combine the virtues of independence and accountability in just the right amounts, but perfection is an unlikely result of our choice of judicial selection mechanism. Realistically, the question is which of the two broad alternatives -- appointment or election -- does the better job?
According to political scientist Philip Dubois, the advocates of appointment assert that Ait minimizes political considerations in the selection of judges, improves the quality of the judiciary, ensures judicial independence, and stimulates the adoption of other administrative innovations to make courts more efficient and effective. In particular, the use of a judicial nominating commission composed primarily of lawyers is seen as bringing a degree of expertise to the process of picking judges. As Daniel Shuman and Anthony Champagne put it, AThe main argument in its favor is that, unlike elective systems, the Missouri Plan is more likely to select highly qualified judges because they are selected by experts. The corollary of this argument is that voters, in the main, are not competent to vote on judicial candidates.
On the other hand, supporters of election tout the increased accountability of judges who have to stand for re-election as the most attractive characteristic of the elective system. Supporters tend to overlook the danger that increased political accountability may significantly lessen judicial independence.
As might be expected, the two sides in the debate have had a tendency to talk past one another. But it doesn't have to be this way. Lawyers interested in this subject particularly the opponents of elections tend to overlook the vast amount of research done -- most of it by political scientists -- on the differences between judicial selection mechanisms. Those who are interested in judicial selection have an obligation to consider this research seriously rather than relying simply on appeals to anecdotal evidence and the common desire for Abetter judges. The empirical evidence that has been gathered on different selection mechanisms offers a way out of what is otherwise endless restatements of support for judicial independence (on the one hand) and judicial accountability (on the other).
In Section III, we briefly canvass this literature. While the results of political scientists’ research are not uniformly negative with respect to appointment, it can fairly be said that this body of work supports the overall assessment of Harry Stumpf, one of its most widely-cited contributors:
Where are we then? If the lay, the professional, and even the political inputs built into the Missouri Plan do not work as advertised, and if the plan in general cannot be shown to produce superior judges, what is left of the argument? The answer is, not much.
But while the material presented in Section III undercuts the argument in favor of appointment, it does not make the case for judicial elections. That task is undertaken in Section IV, which focuses on very recent history (as compared with the longer historical sweep of the research described in Section III) to illustrate a more general and forward-looking argument in favor of electing judges. Section V offers a brief overview of questions of judicial campaign finance reform and the regulation of judicial campaign speech.
III. Merit selection, non-partisan elections, and gubernatorial appointment: theories and evidence
A. Missouri's experience under the A Missouri Plan is far from a vindication of Amerit selection.
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 ARule 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 Arunaway 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. His prognosis is quite grim, and deserves to be quoted at length:
Unfortunately, neither the politicians nor the state Supreme Court seems likely to do anything to reverse the course. Former plaintiffs’ lawyers and their supporters include the governor, the attorney general and the chairman and vice chairman of the Senate Judiciary Committee.
In the House, plaintiffs’ lawyers can count on support from the speaker, the chairman and the vice chairman of the Judiciary Committee and theDemocratic whip. No one who has to run for election in Missouri --be it legislators or Supreme Court justices -- would be eager to get on the wrong side of the rich and powerful Missouri Association of Trial Attorneys.
Missouri's crisis is the result of a combination of court rules and state statutes that has turned St. Louis and Jackson County into the litigation equivalent of fly paper: defendants land in Missouri’s courts and cannot escape. Neither the state Supreme Court nor the legislature has the courage to address this issue.
Both supreme court justices and trial judges in St. Louis and Kansas City are chosen through the Amerit selection process. The disappointing results of this process in Missouri the marquee state for Amerit selection -- raises two further questions: How has the Missouri Plan fared in other states? Why has the Missouri Plan failed to live up to its advance billing?
B. Studies of other states fail to show that the Missouri Plan has resulted in the selection of Abetter (or even Adifferent) judges.
As explained above, the basic notion behind the Missouri Plan is that the members of the judicial nominating committees particularly the lawyer members are more competent to choose judges than is the voting public. It would seem that one testable implication of this claim is that the sorts of people chosen to become judges in Missouri Plan states would be somehow better, in a demonstrable way, than those people elected to the bench in non-Missouri Plan states. Much research has been conducted, looking for evidence that Missouri Plan judges are systematically better qualified than elected judges. No evidence of this sort has been found.
Professor Stumpf summarizes this research as follows:
At the very least, one can determine whether different selection mechanisms tend to produce different types of individuals as measured by . . . variables [such as] educational attainments, prior judicial experience, the absence of parochialism, and so on . . . . And if the Missouri Plan is supposed to produce decidedly superior judges, these results might be expected to show up in such data. However, the research reported thus far does not lend much support to this claim.
Not only is there little evidence of the superiority of judges selected by the merit system (although there is some evidence to the contrary), there is in fact little to show that judicial selection mechanisms make any difference at all!
The much smaller body of research into substantive differences among states as a function of judicial selection also fails to find any evidence of improvements in the law as a result of the adoption of the Missouri Plan. Stumpf concludes that "if merit selection produces better judges, social science research has thus far failed to substantiate the claim." In a more recent article, Shuman and Champagne echo Stumpf by describing the conclusions of social science research as follows: "the quality of judges in a merit-selection system are no better than those selected by voters, and . . . the retention-election system is a sham."
C. Why hasn't the Missouri Plan produced Abetter judges?
In spite of the reformers’ best intentions, politics inevitably surrounds the work of the nominating commissions in Missouri Plan states. In operation, the Missouri Plan substitutes committee politics for electoral politics. The appearance of expertise and non-partisanship is largely, if not entirely, a facade -- a fact widely noted in the political science literature.
This should, perhaps, come as no surprise. The interest groups that have a significant stake in the composition of a state's bench will try to promote their interests to the best of their ability, no matter what judicial selection mechanism the state uses. First among these groups is the bar. Within the bar, the plaintiffs’ lawyers and the "defense" lawyers have divergent interests, and can be expected to engage in "political" maneuvers to ensure that "their" candidates gain appointment to the nominating commission. Clearly, as one commentator has pointed out, Philosophical differences between plaintiff and defense bars can . . . lead to tensions in the appointment of lawyer members to the commission and in the actual [judicial] selection process."
It thus appears impossible to remove "politics" from judicial selection, regardless of the method used, where "politics" is understood as including the agendas of interest groups most notably the bar -- with a particular stake in the judicial selection process.
Professor Stumpf puts the point more forcefully: The most persistent finding that emerges from the research is that the forces and influences at work in the process seem to have a way of making themselves felt irrespective of the specific selection mechanism.
While the debate rages as to form, the underlying reality remains the same: neither those who influence the process nor the substantive outcomes are much affected by a change in method of selection.
Stumpf's claim that the choice of selection mechanism can have no significant effect on the law is seriously short-sighted, as will be demonstrated in Section IV. However, his basic observation about the persistence of interest group politics is unassailable.
D. The bar and the nominating commissions: implications for businesses and consumers.
If one views the nominating commissions as simply politics by other means, the question arises why the introduction of the commissions did not result in the selection of more "pro-business" judges than the allegedly populist election system. Recall the famous, Robin Hood-like explanation of the motivations of elected judges offered by former West Virginia supreme court justice Richard Neely. If fear of this kind of Ahome cooking is a significant motivation for business groups to support the Missouri Plan, what does the general impotence of the Missouri Plan reforms tell us? Was business overly optimistic about the workings of the nominating commissions under merit selection, or were they overly pessimistic about the electoral process?
Consider for a moment that fully informed businesses and consumers should have substantially similar preferences as to the nature of a state's legal system. Inefficient legal rules and costly legal procedures burden businesses but also harm consumers through higher prices.
It follows that Justice Neely's hypothetical Robin Hood judge correctly understood the preferences of the plaintiff-consumer in his court, but overlooked the preferences of all the other consumers/voters in his circuit in issuing a ruling that increased the cost of doing business in the state. If businesses could get this message through to the public -- and there is strong evidence in some states that it is beginning to get through, as described in Section IV, below then the populist bug-bear that some Missouri Plan advocates use to frighten the business establishment into supporting such reforms would prove less fearsome.
Conversely, the nominating commission route has likely failed to live up to businesses’ expectations. For example, key tort reform initiatives have been nullified in a number of merit plan states, including Alaska, Arizona, Colorado, Connecticut, Florida, Indiana, Kansas, Missouri, Oklahoma, South Dakota, Utah, and Wyoming. The best explanation for this may be the fact that the nominating commissions are dominated by lawyers. The plaintiffs’ lawyer-members of the commissions have an obvious interest in helping to place on the bench judges who will facilitate the efforts of the plaintiffs’ bar to expand liability and increase the amount of uncertainty in the legal system. (It bears repeating that both of these sets of changes in the law harm both businesses and consumers.) Perhaps the inability of the nominating commissions to produce more competent judges is explained by the relative strength of the plaintiffs' lawyer voting blocs on those commissions.
Or maybe there is an even deeper reason. While business people are now accustomed to thinking of plaintiffs' lawyers as political actors (ATLA and all that), they are probably not as fearful of the "defense" bar. Surely business can depend on lawyer-members of the nominating commissions that come from "defense firms" to support solid judicial candidates.
But not so fast. Recognize that even defense lawyers have a personal financial stake in the amount of litigation that their firm handles. Further, to the extent that more and more of the Nation's affairs are conducted through the court system (or threats to use that system), the more important and highly-paid all lawyers will be. Finally, it should be noted that law firms that have historically been "defense" firms are more likely today to engage in what would be called "plaintiff's work," and that the very concept of the "defense bar" is under some pressure now from insurance company cost-cutting. Businesses cannot simply assume that in any given state there is a "defense bar" that is coherent and well-organized and that will adequately represent the interests of business and of consumers.
Beyond simple lawyer self-interest, there is an ideological reason why a "defense" lawyer may prove an unreliable representative of business (and, hence, consumer) interests in the deliberations of a judicial nominating commission. The practicing bar, as a whole, is well to the left of the American public as a whole. This should not be surprising, given that the law schools through which the vast majority of them passed were and are to the left-of-center. The leftward tilt of the bar is reflected in the increasingly politicized nature of the American Bar Association, now widely associated with leftist stances on a wide range of political issues -- as explained regularly in the Federalist Society's publication, "ABA Watch."
Lawyers thus tend to believe in the primacy of law, and the efficacy of the law and its processes -- to a much greater degree than do non-lawyers. How else to account for their veneration of "the adversary system," for example? It follows that lawyers may have trouble seeing when complaints lodged against the legal system by non-lawyers have real merit. So a powerful combination of self-interest and ideology lead the average lawyer to prefer the expansion of the reach of law and the legal system -- an expansion not nearly as widely supported by non-lawyers (read: voters).
This preference for legal over non-legal processes may well have manifested itself in defense lawyers on nominating commissions supporting judicial candidates that were sub-optimal, from the point of view of businesses and consumers. There is no study we are aware of that offers any evidence on this point, pro or con. We raise it here to suggest why defense lawyers should not be automatically seen as faithful protectors of the interests of businesses and consumers on the nominating commissions of Missouri Plan states.
E. Problems with retention elections.
The retention elections conducted in Missouri Plan states compare poorly with partisan election contests as a means of ensuring judicial accountability to the public. As a result, judges enjoy higher retention rates in Missouri Plan states as compared to states using partisan elections.
F. Concluding observations about the Missouri Plan.
Low voter turnout is typical of judicial elections; turnout is even lower in retention elections. Because the judge runs only on his or her "record," and not against a live opponent, retention elections do not generate the publicity necessary to allow the public to cast an informed vote. Additionally, because the judge is not identified by party affiliation, voters cannot use party as a "cue" to vote for or against a candidate, as they do in other elections.
Political scientist Mary Volcansek offers this summary of research findings:
Prominent characteristics of retention elections are low voter interest, knowledge, and turnout. The absence of voter cues [i.e., party identification] in retention elections is more striking than in other judicial elections. Voters thus choose to support incumbents, even in the presence of active media campaigns detailing deeds of misconduct or incompetence. Less than one percent of all judges standing for retention elections have been removed through that process [citing a 1980 study].
This is a significantly smaller proportion of removals than is found among incumbent judges in elective systems.
It is hard to conceive of a system more likely to protect incumbent judges than the retention election system. We do not view this as a positive aspect of the Missouri Plan. Instead, we count it as a critical loss of public debate and self-government.
The Missouri Plan's combination of committee-level politics and limited voter participation in retention elections has the effect of obscuring the judicial selection process from public scrutiny and debate. This is probably the most significant effect the Missouri Plan has on our political and legal system, and it is hard to see how this obscuring of the issues is supposed to improve the legal system.
G. Non-partisan judicial elections do not compare favorably with partisan judicial elections.
Political scientists have determined that party label is probably the most important factor in voters' decisions in judicial races. According to Stumpf and Culver, "In partisan [judicial] races, the political party label may give most voters all the information they seek." Philip Dubois puts it this way: "when judicial elections are highly competitive and controversial, voters demonstrate a remarkable ability to learn about candidates, to correctly match them with their positions [on issues], and to vote accordingly."
There is much empirical support for this common-sense approach taken by most voters in casting votes for judicial candidates. Nationwide, Republican state judges are different from Democratic state judges. "[R]esearch has repeatedly confirmed that there are basic differences between the Democratic and Republican judges who sit on state appellate courts" - - namely, that "Democratic judges (tend) to support a liberal viewpoint compared to their Republican brethren."
If anything, this disparity between Republican and Democratic judges has gotten more pronounced in recent years, as the trial bar's influence within the Democratic Party has grown significantly. With one activist segment of the trial bar now receiving gigantic attorneys’ fees from the states’ suits against the tobacco industry, we may predict a further ATLA-ization of Democratic judicial candidates. Under the circumstances, informed voters will more than ever want to know the party affiliations of judicial candidates, so as to avoid those candidates whose rulings would be more likely to result in price increases, restrictions on product availability, and less innovation.
Adamany and Dubois provides the following bottom-line for the political science research on nonpartisan judicial elections:
Modern legal scholars and social scientists no longer deny that judges make policy. In a republican system, policymakers must be accountable to the people, either directly or indirectly . . . . Accountability requires institutional arrangements that strengthen voters' ability to select officials who will, in the main, govern consistently with the majority's policy preferences. Concurrently scheduled partisan judicial elections more readily allow voters to hold judicial policymakers accountable than do nonconcurrent or nonpartisan voting arrangements, separately or combined
H. A strong-governor system of appointments does not compare favorably with partisan elections.
Both the pro-appointment paper and other observers have recently dusted off the idea of a state judicial appointment mechanism modeled on the one used at the Federal level. In it, the governor would play the same role as the president, sending a judicial nomination forward to the senate for confirmation, but without the governor’s being subjected to formal processes that limit his discretion (such as a nominating commission).
Wouldn't this bring the issue of judicial selection sufficiently into the political arena? No. The issues of judicial selection and judicial conduct, and of legal reform generally, are large issues that deserve a thorough public debate. In the context of a campaign for governor, however, these issues would have to share the stage with the more traditional statewide issues of tax policy, education reform, highway construction, and so on. Debated at the level of the race for governor, judicial selection and legal reform would be just one issue among many that voters consider in choosing which gubernatorial candidate to support. The issue of the courts would likely be obscured, if not completely eclipsed, by other issues important to voters.
In contrast, the only issues in judicial elections are those over which judges have some influence. Judicial elections provide a much more direct means of expression for voters.
Furthermore, the Federal judicial appointment process has shown signs of severe strain in the past decade or so. Certainly the Senate’s performance in acting on the nominations of Robert Bork (1987) and Clarence Thomas (1991) sparked intense debate, with many commentators pronouncing the confirmation process in need of overhaul. The increasingly combative and acrimonious nature of U.S. Supreme Court confirmation hearings appears to be traceable to the increased activity of organized interest groups in the process (particularly groups devoted to the cause of abortion).
Since no state currently uses the Federal "model" as a guide for its own judicial selection mechanism, we do not have any evidence of how the model would work at the state level -- in particular, whether gubernatorialappointment with the advice and consent of the state senate would generate the sort of intense interest group activity that we have seen at the Federal level. However, it is reasonable to assume that the interest groups that are now active in state judicial selection whether through elections or through "merit selection" processes would adapt to the adoption of the Federal model by a state government. Inasmuch as tort reform is a "litmus test" issue at the state level, we might expect that the anti-tort reform forces (i.e, the plaintiffs’ bar) would work to block the confirmation of a pro-tort reform state supreme court justice. The public relations campaigns, smear tactics, and character assassination familiar to observers of some recent Federal judicial confirmation hearings (not limited to the Bork and Thomas hearings) might well inspire state-level analogues if a state adopted the Federal judicial selection mechanism. The idea that these "politicized" proceedings would be a large improvement over the current system of judicial elections is quite a leap of faith.
Finally, we might consider whether the Federal selection mechanism does not promote a dangerously high level of judicial overreaching on the Federal bench. If the Federal process has had this effect on the Federal bench, might it not also result in increased overreaching by state judges chosen in a similar fashion? Keep in mind that activist state supreme courts have been a recurring dream of Warren Court devotees for many years now. Indeed, in a 1977 speech Justice William Brennan famously urged state supreme courts to keep the Warren Court's agenda alive and growing. Such overreaching is not far removed from the type of judicial usurpation one witnesses when a state supreme court strikes down comprehensive tort reform legislation on specious state constitutional grounds – something which has happened on more than 80 occasions since the early 1980s.
Of course, the degree to which state judges appointed in the same fashion as Federal judges might feel similarly empowered to act in an inappropriately activist fashion would also depend on the length of the state judges’ terms in office. If the state judges had a shorter term than the Federal judges (who are appointed for life), and particularly if the state judges had to face the voters in some fashion in order to stay on the bench, then their opportunity for activism would be constrained thereby. Nonetheless, some skepticism seems in order for any plan that is modeled even in part on the Federal selection process a process that has brought us substantial amounts of judicial overreaching for a significant period of time.
I. Competitive judicial elections in Alabama and Texas: One road to legal reform.
The material presented in Section III puts the alternatives to partisan judicial elections in a bad light. But what can be said affirmatively about partisan judicial elections? Simply stated, two of the seven states that have a partisan judicial election system -- Alabama and Texas -- have recently seen successful voter revolts against trial lawyer-inclined judiciaries. These developments are so recent that they are not picked up in any of the studies mentioned earlier, and it can be argued that these voter revolts are more important than all the other considerations put together. Voters in these two states are in the process of reclaiming their judiciaries from the excesses of the trial bar.
Could this have happened in Missouri Plan states? Or in states with nonpartisan elections? Probably not as quickly. And, to be fair, perhaps the problems would never have reached the critical mass in other states that they reached in the elective states of Alabama and Texas. Nonetheless, it is a significant thing for voters to assert themselves as dramatically as they did in these two states. It strongly supports the view that voters are not incompetent to vote on judicial races, and lends aid and comfort to those working to effect legal reform.
In a recent newspaper column, a Texas appellate judge reflected on the recent events there:
60 Minutes once asked if justice in Texas was for sale. It is instructive to note that all of the justices who were on the Supreme Court of Texas then aren’t now. They have been replaced by some very fine men and women by the people of Texas in partisan elections. All but one of the justices is currently serving after being elected to office.
As Texans in the past surely knew, you cannot take the politics out of decisions about who is going to hold what office, but you can take the people out of the politics. This democracy business can be a little messy at times, certainly inefficient and occasionally some bad mistakes are made, but you can trust Texans to get it right most of the time. The secret of our success to date is the dispersal of power, with Texans reserving the last word for themselves.
In Alabama, voters elected a Republican majority to the state supreme court, which has resulted in that court’s making significant headway in cleaning up the "tort hell" reputation generated by their predecessors. The degree to which the voter revolt has succeeded in Alabama can be gauged by the fact that the trial-lawyer-backed Democratic governor recently called on the Legislature to adopt non-partisan elections for judges.
While the historical, empirical case against the Missouri Plan is substantial, a forward-looking appreciation of the events in Alabama and Texas probably makes the case for judicial elections more effectively. Certainly it argues against legislative "reform" of judicial selection in those states. Moreover, it suggests that the entire country may well benefit if a few states cling to the partisan election model, and thus provide federalism's "laboratory of the states" for further testing of the rival theories of judicial selection. Hard as it may be to imagine today, Alabama and Texas law may one day be an example to the rest of the country, if the voters continue to evaluate the arguments put forward by the trial bar and the business community in the way they have in the past couple of election cycles.
The pro-appointment White Paper points out that the "partisan tide" may turn yet again in Alabama and Texas, wiping out recent gains in these two states. This worry cannot, of course, be completely dismissed. For example, in Alabama five of the nine supreme court seats will be at stake in the 2000 elections.
However, it should be noted that Alabama and Texas are, relatively speaking, quite conservative states. In fact, most of the states that elect judges are relatively conservative. If the case for the rule of law and judicial restraint cannot be made successfully to voters in these states, then the prognosis for these two ideals nationwide would be dim indeed. These states’ judicial election campaigns provide the best possible battleground for business to articulate the ideals of stability and predictability in our legal system, in a way that voters finally can understand and choose over the trial bar's dark vision of American life and law.
For this reason alone, the business world should resist the blandishments of the organized bar and other self-proclaiming "good government" advocates in the elective states, and work instead to protect and invigorate these states' experiment with elective judiciaries. The fact that the battle has been won, at least preliminarily, in two states that until recently were notoriously under the sway of the trial lawyers should be tremendously encouraging to business leaders.
In the final analysis the most important reason for supporting partisan judicial elections may well be that this mechanism reinforces the ideal of self-government. Judges are not treated as somehow apart from, and superior to, mere mortals such as voters and taxpayers. Instead, judges are selected directly by the public they are to serve (rather than rule). Contrarily, much of the animus directed at judicial elections in the law review literature seems to stem from a strong preference for "government by judiciary". Professor Dubois makes the anti-elitist point nicely:
[J]udges must often exercise their discretion and in so doing are influenced by their own political, economic, social, and moral viewpoints. And, in a democratic political system, voters are entitled to periodically select those who make law and public policy, including those who interpret their laws and give meaning to their constitution.
V. Judicial campaign finance and judicial campaign speech: Unresolved issues.
The pro-appointment White Paper, following a venerable tradition of anti-election argument, provides many examples of questionable campaign fund-raising tactics by judicial candidates. Because of the high standard of impartiality expected of judges, fund-raising abuses by judicial candidates seem to be even more damaging to the public's regard for government than similar abuses by candidates for legislative or executive posts. Of course, any regulation of judicial campaign fund-raising must meet the First Amendment standards set out in Buckley v. Valeo and its progeny.
In addition, campaigning for judicial posts can raise tricky questions about the propriety of a candidate's discussion of a legal issue take publicly-funded school vouchers as an example that might well come before the candidate if he wins his race and takes the bench. Which value is paramount the candidate's First Amendment right to speak and the public's First Amendment right to hear him speak, or the public's expectation that the people to whom the task of judging is entrusted will hear every case impartially, without having pre-committed themselves to ruling one way or the other?
There is no shortage of proposals to address these problems, at least in part. The American Judicature Society (AAJS) which is primarily in the business of agitating for adoption of merit selection published two volumes in 1990 dealing with judicial elections. Electing Justice: The Law and Ethics of Judicial Election Campaigns by Patrick M. McFadden, and Electing Justice: A Handbook of Judicial Election Reforms by Sara Mathias, provide an overview of the existing rules and suggest reforms with respect to both campaign finance and campaign speech.
With regard to finance issues, the AJS offers both legal reforms and voluntary, nonlegal solutions. Included in the first category, among others, are 1) public funding of campaigns, 2) caps on contributions and expenditures, 3) strengthening disqualification rules in cases involving the appearance of impropriety, 4) prohibiting fund-raising in uncontested elections, 5) barring contributions from certain groups, and 6) prohibiting personal fund-raising by the candidate himself. With regard to campaign speech, the AJS is sensitive to the First Amendment problems raised by any attempt to muzzle discussion of controversial legal topics by judicial candidates, and in fact recommends that the state codes of judicial conduct be liberalized, where necessary, to afford judicial candidates their full First Amendment freedoms.
In general, businesses should be very skeptical of proposals to regulate the types of speech that judicial candidates may utter, and should be wary of proposals to further regulate judicial campaign finance. As to the latter, consider the source of the proposal (friend or foe?) and whether the proposal would have the effect, directly or indirectly, of putting business and consumer interests at a disadvantage, relative to the trial bar, in fund-raising. It may be that, as a practical matter, full public disclosure of contributors and the amount of their contributions provides the public with all the protection they need in evaluating the judicial candidates on offer. Voters in Alabama and Texas seem to understand pretty clearly who supports whom in the judicial races. The key would seem to be for business to offer a clearer explanation to the voters why they should prefer candidates backed by business to those backed by the plaintiffs' bar.