How does merit selection work

Ruth McGregor of the Arizona Supreme Court, was interviewed by an investigative reporter for a Goldwater Institute paper on the benefits of using a merit selection system for municipal judgeships.

Under merit selection systems, a nonpartisan commission of lawyers and nonlawyers evaluate judgeship applicants and submits the most qualified names to the Governor to make an official appointment. Merit selection helps protect judicial candidates from the pressures typically associated with political elections that could threaten their independence on the bench. This is not just paranoia on the part of the voters.

Ambition for public office has been explored extensively in the electoral context particularly legislative ; however, we know far less about what motivates the decision to apply for judicial vacancies in merit systems.

The decision to run for office entails substantial cost that may dissuade potential candidates. Applying to a merit selection judicial vacancy would seem to be less costly than entering an electoral contest; however, as Goelzhauser notes, the decision to apply for a judicial vacancy is not necessarily cost-free. A distorted pool can lead to distorted merit selection outcomes. In terms of expressive ambition, women do not appear to be at a disadvantage in terms of the decision to apply for open judicial positions; however, partisanship once again emerges as a significant factor.

Specifically, attorneys who are ideologically congruent with the appointing governor are more likely to apply for vacant judgeships p. This once again calls into question the claim that merit selection helps to at least moderate the influence of partisanship in the judicial selection process p.

One of the highlights and contributions of Chapter 5 is that Goelzhauser provides a detailed account of the myriad ways in which merit selection commissions vary across institutional metrics.

Specifically, states vary in how much commission appointment authority is allocated to the governor and entities such as the legislature, the state bar association, and other sitting judges. Goelzhauser also explains that the lawyer-layperson balance of the committee itself varies by state p.

The concern with capture is that it can have deleterious effects on judicial performance as certain interests work to shape a judiciary that aligns with their preferences, as opposed to a focus on merit. Goelzhauser presents a comprehensive analysis of all state supreme court merit selection appointments between and to discern whether institutional design influences the quality and diversity of judicial appointees.

He remarks that there is clear value in allowing all interested parties, especially women and minorities, to apply for judicial vacancies and in constraining executive appointment power. However, he pointedly notes that serious concerns of transparency accompany merit selection systems p. There are of course valid reasons for withholding certain types of information related to judicial applications, given privacy concerns.

Goelzhauser offers useful and practical suggestions for ways in which states can facilitate increased transparency, such as anonymizing applicant data. Greater transparency from states is clearly necessary for continued assessment of merit selection performance. It is also timely, as several states continue to tinker with the way judges are appointed. It is also a misconception.

Some opponents of merit selection argue that it removes from the people the right to elect their judicial representatives. The legislative branch is certainly designed to represent specific constituencies; to a lesser degree, the executive performs a similar function. But judges, who must apply impartially the laws created by the other two branches—laws that affect opposing constituencies—are expected to remain above the fray.

Canons of judicial ethics require them to remain objective, free of political influences, and unfettered by financial concerns.

Yet, what does the process of judicial election demand? It demands a campaign, usually partisan, which in turn demands that the candidate raise campaign funds—funds that are most likely to be contributed by lawyers who may later appear before the judge. In other states, the rules or at least their enforcement are less stringent yet: Judges actively campaign, make promises regarding how they will rule in particular types of cases, and actively solicit the support of interest groups.

However, candidates often do not run in primaries, but are chosen via nominating conventions.