Lund on Judicial Elections and Merit Selections

November 15th, 2010

Professor Nelson Lund (one of my faves at GMU) has an interesting article titled “May Lawyers be Given the Power to Elect Those Who Choose Our Judges? ‘Merit Selection’ and Constitutional Law.” Here is the abstracT:

“Missouri Plan” judicial selection mechanisms, which many states have adopted, seek to ensure that judges are appointed on the basis of “merit” rather than “politics.” These devices typically feature a judicial nominating commission comprising some lawyers and some lay members. The lay members are usually chosen by the governor, and the lawyers are frequently elected by the state bar.

Laws giving lawyers a legally preferred role in judicial selection sit very uneasily with basic tenets of republican government and political economy, though principles of federalism might counsel against federal interference with these state decisions about the structure of government. Whatever one thinks about those contending principles, however, the states are now governed by a well-settled body of equal protection doctrine that sharply limits their authority to hold elections from which some voters are excluded.

The inferior federal courts have uniformly upheld Missouri Plan devices against equal protection challenges, but all of the opinions have been poorly reasoned. This paper focuses on the Kansas version of merit selection, which gives lawyers a uniquely powerful role in selecting that state’s supreme court. The paper concludes that the Kansas system, which is now being challenged in federal court, is almost certainly unconstitutional under existing precedent.

Professor Lund really hits the nail on the head.

From the article:

More generally, there are countless other mechanisms through which gubernatorial abuses can be checked.
The most obvious is a requirement, on the federal model, that gubernatorial nominees by confirmed by one or both houses of the legislature, but others could easily be imagined. And there are also many other ways in which a state’s lawyers could be given a significant advisory role in judicial selection. The governor, for example, might be required to give the bar an opportunity, before he made an appointment, to comment on candidates he was considering. If a stronger control were desired, the governor might be required to provide a written explanation for any decision to appoint a supreme court justice who had not been recommended by the bar.75
What Kansas may not do is delegate to a private interest group the authority to hold elections that virtually
determine who will exercise the significant and wideranging power of its supreme court. Such a delegation sits
very uneasily with basic principles of republican government and with common sense principles of political economy. Individual lawyers have many virtues and many uses, but when gathered into a guild they also have the usual exploitive tendencies of other such interest groups.

I arrived at a similar same conclusion while debating judicial elections with my grandfather. He proposed that a group of “learned lawyers” select judges. I asked him how would this group be selected, and how do you know that those lawyers are not going to simply select judges who are partial to their beliefs. No real answer.

The rent seeking implications of merit selections are staggering. Imagine if all of the members of the selection committee are members of the plaintiffs bar, or perhaps, members of the defense bar. That will certainly impact how the candidates are slated. Would that be much different than allowing direct election of Judges? Who knows. Lund raises some serious constitutional issues here that many proponents of merit selection should consider.

And I quote a VC Post from another awesome GMU Professor, Todd Zwyicki that is on point:

As for me, I don’t claim to be a democrat.  I am a constitutional republican.  And by that measure I am completely untroubled by the way in which the federal Constitution provided for the appointment of judges as well as the way it originally provided for selection of Senators as systems designed to fit within the constitutional scheme of protecting individual liberty and limiting rent-seeking by special interests and agency costs by politicians.