Saturday, September 23, 2017

excerpted from:  Merit Selection:  Review of the Social Scientific Literature, 106 Dickinson Law Review 729-745, 729-732, 739-741, 744-745 (Spring 2002) (110 Footnotes)

As one judicial selection scholar noted, "It is fairly certain that no single subject has consumed as many pages in law reviews and law-related publications over the past 50 years as the subject of judicial selection." Central to the judicial selection debate is the appropriate balance between judicial independence and judicial accountability. Generally, judicial independence refers to the common law tradition of a judiciary that is institutionally immune from outside political pressures in the resolution of individual cases, whereas judicial accountability comports with democratic principles and allows the judiciary to be responsive to changes in public opinion. Lifetime appointment systems are said to ensure judicial independence; popular elections at frequent intervals are favored by those who value judicial accountability.

The so-called "merit plan" for selecting judges was introduced in the 1930s as a means of promoting both independence and accountability. Merit selection calls for gubernatorial appointment of judges from a list of names submitted by an independent nominating commission. After a brief period in office, judges run in retention elections where only one question is posed to voters--should the judge be retained in office. In addition to balancing judicial independence and accountability, merit selection systems are said to produce highly qualified judges, since candidates are screened by nonpartisan commissions.

A large body of social scientific research has developed that seeks to evaluate the claims made by proponents of merit selection. Specifically, researchers have examined the extent to which nominating commissions insulate judicial selection from the political process, whether retention elections make judges accountable to the public, and whether merit-selected judges are distinguishable from judges selected through other means. I consider that research here, summarizing the qualitative and quantitative studies that have attempted to measure the actual effects of merit selection of judges.

This review takes three parts. In the first two, I consider the key features of merit selection systems--judicial nominating commissions and retention elections. In the third part, I compare the products of merit systems--the judges themselves--to the products of other selection systems.

II. Judicial Nominating Commissions

Allan Ashman and James Alfini describe judicial nominating commissions as "the cornerstone of the merit selection plan." Empirical research has focused on two aspects of judicial nominating commissions: the extent to which commission members and their nominees reflect the diversity of the larger community and the role of politics in the nominating process.

A. Diversity and Judicial Nominating Commissions

Because the composition of judicial nominating commissions may affect who the nominees will ultimately be, three major studies have explored the gender and racial diversity of these commissions. In 1973, Allan Ashman and James Alfini surveyed members of nominating commissions in thirteen states. Beth Henschen, Robert Moog, and Steven Davis conducted a similar survey of nominating commissioners in thirty-four states in 1989. The most recent study of the racial and gender makeup of nominating commissions was conducted by Kevin Esterling and Seth Andersen, who gathered demographic information on nominating commissioners in eight states in the 1990s.

In the first major study, Ashman and Alfini found that nominating commissioners were overwhelmingly white and male. More specifically, nominating commissioners were 97.8 percent white and 89.6 percent male. This study also compared the characteristics of lawyer and non-lawyer commissioners. Only two of 194 lawyer members were non-white, and only one was a woman. Of the 153 lay members, 3.3 percent were non-white, and 22.3 percent were women.

Sixteen years later, Henschen, Moog and Davis reported notable gains in the representation of women on judicial nominating commissions. Twenty- five percent of commissioner respondents were women, and the percentage of women among attorney commissioners had increased to 10 percent. This study showed only slight increases in the proportion of minority commissioners, with7 percent of commissioners being non-white. As in the Ashman and Alfini study, there were fewer minorities among lawyer members, 5 percent, than lay members, 14 percent. The Henschen study also reported significant variation in the racial and gender composition of nominating commissions across states. This variation was later confirmed in the data collected by Esterling and Andersen. States with a significant proportion of Hispanic commissioners included New Mexico, at 30.9 percent, and Arizona, at 25.8 percent, while states with substantial African-American representation were Tennessee, at 20 percent, and Florida, at 18.1 percent. The extent of gender diversity on these commissions ranged from 22 percent in Alabama to nearly 47 percent in Tennessee.

Esterling and Andersen examined the effects of gender and racial diversity within nominating commissions on the gender and racial diversity of applicants and nominees. In the five states for which data was available, there was some evidence that diverse commissions attracted more diverse applicants and selected more diverse nominees.

. . .

IV. Comparisons of Merit Selection with Other Selection Systems

A number of scholars have addressed the question of whether merit-selected judges differ in significant ways from judges selected through other means. Comparisons of the products of judicial selection systems have focused on three dimensions: gender and racial diversity, background characteristics, and behavior on the bench.

A. Gender and Racial Diversity

What influence, if any, the method of judicial selection has on the success of women and minorities attaining judgeships is a point of contention between those seeking to diversify the bench and those who advocate merit selection. Proponents of a diverse bench argue that merit selection prevents women and minorities from reaching the bench by entrenching a system dominated "by state and local bar associations whose members overwhelmingly are white, male, Protestant, conservative 'establishment' attorneys." Some empirical studies of the relationship between judicial diversity on state courts and judicial selection methods validate this assertion. At the same time, several studies find no correlation between selection method and diversity, and others show a positive correlation between merit selection and the diversity of the bench.

The most recent study of selection systems and judicial diversity finds no evidence that women and minorities are more likely to become state appellate judges under merit systems than they are under non-merit systems. Their findings indicate that the proportion of minorities selected under merit systems was slightly less than the proportion of minorities on state courts nationwide.

V. Conclusion

This review of social scientific research on merit selection systems does not lend much credence to proponents' claims that merit selection insulates judicial selection from political forces, makes judges accountable to the public, and identifies judges who are substantially different from judges chosen through other systems. Evidence shows that many nominating commissioners have held political and public offices and that political considerations figure into at least some of their deliberations. Bar associations are able to influence the process through identifying commission members and evaluating judges.

In addition, support for the effectiveness of retention elections in holding judges accountable to the public is limited. Judges rarely fail in their bids for retention, and approximately one-third of those who cast votes in other races do not vote in retention elections. There is some evidence, however, that judicial evaluation programs are effective in informing and influencing voters.

Finally, there are no significant, systematic differences between merit- selected judges and other judges. Some evidence suggests that merit plans may place fewer racial and religious minorities on the bench. The finding that merit plans may prevent the selection of bad judges is noteworthy, but this appears to be an isolated result.

Lest this review be interpreted as a call to abandon merit selection, I would suggest an additional criterion on which judicial selection systems should be judged--their impact upon the public's trust and confidence in the courts. By this standard, merit selection is preferable to judicial elections. As we saw in the 2000 judicial elections in states such as Alabama, Michigan, and Ohio, campaigning for office can transform judicial candidates into ordinary politicians, giving sound bites and raising campaign funds. Judicial elections tend to politicize the judiciary in the eyes of the public. To foster the appearance of an independent and impartial judiciary, we need a system that emphasizes judicial qualifications, opens the process to all who meet the legal requirements, and in most instances, eliminates the need for political campaigning. Merit selection is such a system.

[a1]. Malia Reddick, Ph.D., Director of Research, American Judicature Society. This literature review is one component of a larger product funded by the Open Society Institute. To view the project web site, visit http://www.ajs.org/js/.

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