Is it time to leave filling judicial openings to the experts?

Michigan elects its judges, and the state is hardly alone in this. Thirty-nine states use some type of election – partisan, nonpartisan or uncontested retention elections – to fill their trial court and appellate benches, and 22, including Michigan, use competitive elections for their respective supreme courts. Although this reality likely goes unnoticed by a vast majority of the electorate, lawyers, academics, and political observers have long questioned an elected judiciary, not least because of the incentives for judges to “play politics” from the bench in order to curry favor with donors and voters.

Some fear that judicial campaigning impeaches the integrity of the legal system as a whole, especially when the mud starts flying. Michigan’s 2008 Supreme Court race, for example, featured supporters of former Chief Justice Clifford Taylor* accusing his challenger, the now-disgraced Diane Hathaway, of sympathizing with terrorists while letting sexual predators off the hook. (The Democratic party fought back with their infamous “sleeping justice” ad.) That contest remains one of the dirtiest judicial campaigns in recent history.

A further issue, rarely discussed openly, is that most voters lack the interest, information and sophistication to intelligently select those most suited for the bench. It is unsettling to think that state courts, which collectively resolve 95 percent of the country’s legal issues, should be subject to a popularity contest.

It stands to reason that Justice-elect Richard Bernstein landed a spot on the bench due in no small part to name recognition. The Sam Bernstein Law Firm – of which Richard is a member – funds the studio used during Fox Sports Detroit’s broadcast of Tigers and Red Wings games, and he appeared frequently in the firm’s television ads up until the advent of the election season. None of this is to say that Bernstein won’t prove himself capable for the job; he has, after all, a very accomplished academic and professional record. However, it strains credulity to believe that his election was motivated primarily by those factors.

Except for a handful of high-profile cases, typically involving sex and murder (or potential plot fodder for upcoming episodes of Law & Order: SVU), the bulk of state court proceedings go unreported, thus creating an information deficit which is difficult for most voters to overcome. And though the electorate is likely to retain partisan dispositions concerning how judges ought to carry out their function in the abstract, it’s far from clear that ideologically driven judging is normatively desirable, even in a democracy. As Judge Richard Posner of the Seventh Circuit Court of Appeals points out in his 2005 article, “Judicial Behavior and Performance,” judges beholden to political opinion, particularly where that opinion is uniform, lack the independence required to safeguard minority rights (broadly understood).

The difficulties do not end there. Returning to Posner’s article, he is right to highlight that “most people are temperamentally unsuited for electoral politics and in any event not good at it, though they may have just the suite of abilities required in an excellent judge.” This is where the virtue of judicial appointments comes to light, particularly when appointment authority is vested in multiple actors which can vet a judicial candidate’s qualifications. One possible scheme, modeled on the process set forth by Article II of the U.S. Constitution, is for the governor to appoint judges with the ratification of the state legislature. While this and other appointment methods cannot wholly obviate the role of politics in selecting judges, they have the potential to fill vacancies in a more informed and meritorious manner than the electoral system offers.

An elected judiciary has its defenders. For instance, Posner’s son, Eric (a professor at the University of Chicago), along with two colleagues, published an empirical study in The Journal of Law, Economics, & Organization, finding that elected judges are more productive than their appointed counterparts and that they do not exhibit any less independence. The authors did, however, find that appointed judges had a slight edge with respect to the quality of their written opinions as measured by the number of times they are cited by other judges. Not surprisingly, other scholars remain unpersuaded by these measures.

Moving away from elections does raise some worries over democratic legitimacy, but they are easily addressed. Shifting even part of the judicial selection to one of the available appointment schemas used in other states does not mean excluding voters altogether. Governors who, by the electorate’s lights, appoint bad judges, and the state legislators which endorse them, can be punished at the polls, especially if the public perceives excessive partisanship at work.

Concerns that a dominant political party could create long-lasting headaches for its rivals by packing the benches with judges who share their ideological orientation can be met with the retention of term limits. While the need for consistency and stability on the bench may dictate that these terms run longer than the terms established for other lawmakers, an appointment-based system does not necessarily entail a life-tenured system. Poor judges should lose their posts, and a sensible, but rigorous, method for removing thoroughly inadequate judges from the bench ought to be retained as well.

No selection method is infallible, of course, but there is room for intelligent reform. Even if Michigan currently lacks the political will for overhauling its judicial selection process, it may only take a serious scandal or two to stir the waters of reform. It is no doubt better to begin thinking through these difficult matters now while all of the informed heads can remain relatively cool.

* An earlier version of this column failed to note that claims made in ads in the 2008 Supreme Court race came from supporters of Judge Clifford Taylor, not the justice himself. The sentence has been corrected.

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Fri, 12/12/2014 - 3:08pm
Except for those who died in office, I can't think of a district or circuit judge who waited until her/his term expired before announcing departure from the bench. In everyone of these departures the governor appointed a replacement and it was the replacement, the incumbent, who won the next election. Some of these appointed incumbents had a challenger in the first election cycle but never after that. My point being that most judges are already appointed by partisan governors. The best thing about elections is that if you have real stinker judge, there's a way get rid of the stink. The system we have is probably as good as it gets. It ain't broke, so don't fix it.
Sun, 12/14/2014 - 2:52am
There are problems with elected judges, and there are problems with appointed judges. I've long thought that alternating levels of the court systems should alternate between elected vs appointed judges, in good cop/bad cop fashion. But worse than either of these would be a self-perpetuating priesthood of judges chosen by experts.
Sun, 12/14/2014 - 9:55am
Is the average voter smart enough to elect judges? Or should the selection of judges instead be turned over to a small group of "more knowledgeable" lawyers, academics and political insiders? No system of judicial selection is perfect. However, this column is both arrogant and condescending. If the choice is hand-picked favorites selected by the intelligentsia or a candidates elected by a large numbers of working men & women, farmers, small business owners, students, parents, senior citizens and many other voters from across the state, we should continue to trust Michigan's voters to make these important decisions.
Gabriel Sanchez
Sun, 12/14/2014 - 10:37am
Rich, While I didn't highlight it in the column, I should point out that the United States is virtually alone in the world with respect to allowing such a substantial portion of its judiciary to be selected through the electoral process. Please keep in mind that there is no absence of voter involvement here. As I noted, politicians who appoint and approve bad judges can be booted out of office. Additionally, one of the judicial selection mechanisms I highlighted in this article is modeled on the very mechanism used to select federal judges. Do you believe that process is elitist?
Chuck Lockwood
Sun, 12/14/2014 - 10:39am
Changing to appointments in the midst of our current levels of corruption sounds like a bad idea to me.
Clifford W. Taylor
Sun, 12/14/2014 - 11:52am
I am writing to respond to the incorrect claim in this article that I, in my 2008 campaign for re-election to the Michigan Supreme Court, accused Judge Diane Hathaway, my opponent, of "sympathizing with terrorists while letting sexual predators off the hook". I did not. Indeed, I never mentioned her at all. I had no knowledge of her thoughts on terrorists nor of her actions regarding sexual predators, but, more to the point, I was the incumbent and did not want to bring her to anyone's attention for fear someone might vote for this unknown. As to judicial selection methods, there are currently reform movements that would eliminate all accountability to the people. These are generally described misleadingly as "merit selection" where panels of "experts" submit 3 or 4 names to the governor of a state who must select from the list. This sort of system, sooner or later, is destined to be hijacked by powerful interests. And that is exactly what has happened where these panels exist. In reforming selection, we should never allow a system where in the end the selector isn't politically accountable to the people. Election systems, flawed as they may be, qualify as does the "federal selection" process to which reference was made in Mr. Sanchez's article.
Gabriel Sanchez
Sun, 12/14/2014 - 2:42pm
Judge Taylor, One of the sources of my information concerning the 2008 campaign -- which was corroborated by other websites -- is the following: further reflection, I should have made a clearer distinction between words which came directly from your mouth and those which emanated from ads which supported your campaign. I will ask that an amendment be made to the article to reflect as much. My apologies for the confusion. As for your second, more substantive, point, given the nature of campaign financing, I am skeptical that the electoral process provides any sure bulwark against judicial selection being "hijacked by powerful interests." The system I suggested in this piece, modeled on (but not identical to) the federal system, does retain democratic accountability to the extent that the governor who appoints a judicial candidate, and the legislative body (or bodies) which approve the appointment, can be punished at the poll. Additionally, my suggestion here has an additional safeguard over and above the federal system: there is no life tenure. Judges who may have found favor under the Democrats may lose it under the Republicans, though I suspect some, perhaps most, judges will be retained from election cycle to election cycle if they prove themselves capable on the bench. I share some of your skepticism toward a system where an "elite panel" selects judges for gubernatorial ratification. I would say such systems can create a democratic deficit and should probably be avoided. As I stated in the article, there is more than one way to approach the judicial selection process without the electorate -- some are no doubt better than others. Once again, my apologies for the confusion in this piece.
Bob Davidow
Sun, 12/14/2014 - 3:16pm
Judicial selection should strive to produce the most competent and representative judiciary possible. Judicial elections provide no assurance of either competence or representativeness. Gubernatorial appointment may increase competency, but can provide no assurance of representativeness, given that the governor is the chief politician in the state and is likely to appoint persons who share the governor's beliefs, attitudes, and values. There is another way, which I have proposed in several articles, the latest of which is "Judicial Selection in Michigan: A Fresh Approach," 58 Wayne Law Review 313 (2012). I advocate the creation of a broadly representative nominating commission, consisting, for example, of two lawyers elected by lawyers, two judges elected by judges, two academics elected by academics, and six persons elected popularly through a system akin to proportional representation. Each of the 12 commissioners would nominate one candidate, and final selection would be by lot from among the 12, by analogy to the way we select jurors, who are neither appointed nor elected. (Each of the 12 commissioners could veto candidates put forth by other commissioners, but my assumption is that each commissioner would say to the other commissioners, I won't veto your well-qualified candidate if you won't veto my well-qualified candidate.) Selection by lot is not a novel concept; judicial officers in 5th and 4th century B.C.E. Athens were selected by lot, which was regarded as an essential ingredient of democracy.
Gabriel Sanchez
Sun, 12/14/2014 - 6:00pm
Mr. Davidow, Thank you for the citation to your article. I will try and take a look at it. I should note here that my suggested model was only one of several possible schemes that could be deployed in order to make judicial selection process more competent and effective. I think there are definitely merits to your suggestion, and they are worth further reflection. I should note, however, that while governors do indeed play politics, that can be accounted by voters when they go to the polls. Similarly, my suggestion (and it was only a suggestion) would still allow the legislative branch its say, allowing it to potentially block judicial appointments it finds unsavory. However, with that stated, I am skeptical that a good judiciary is necessarily a "representative" one if by "representative" you mean qualities which have nothing to do with being an effective judge -- for instance race, gender, and class. To my mind, a more representative bench, particularly at the supreme court level, would include judges with diverse intellectual backgrounds and work experience. One has to understand that there will always be limits. Most judges are either generalists or specialists, and specialist judges tend to be appointed to a narrow handful of federal courts or administrative panels. At the state level, judges are probably all going to be generalists, though that doesn't mean there aren't benefits to be reaped from having a panel of judges where one is, say, an experienced academic with a deep background in empirical research; a trial lawyer who is familiar with the dynamics of how cases make their way through the system; and so forth.
Sun, 12/14/2014 - 3:22pm
I wonder why Mr. Sanchez is so quick to want to change the system and he never mentions the criteria that should be used in a new selection process. I wonder if is it because he lacks confidence in the public, he lacks confidence in himself, to be able to understand how to use a set of criteria. I wonder why if we don't have some idea of the criteria we should trust to legal scholars not to create a system of legal cronyism. We hear so much about transparency in articles on Bridge and yet I wonder why Mr. Sanchez makes no effort for a degree of transparency, how his system would work without a set of criteria that all could see.
Gabriel Sanchez
Sun, 12/14/2014 - 6:09pm
Duane, First, I should thank you for being more thoughtful with this comment than what I receive from your usual offerings. Miracles never cease. Second, my columns for Bridge are subject to size constraints. As such, it's simply not possible for me to spell out in detail what plan (or plans) I have in mind when it comes to selecting judges. As I noted in this piece, there are any number of schemas available; I suggested but one. If you consult Mr. Davidow's remarks in this thread, you will see that there are alternative models available, and a law review is a much better forum for fleshing out the details. Third, I am not suggesting a system of "legal cronyism," nor am I suggesting that such a system be adopted without a good deal of deliberation. And last, it would take another article -- perhaps several articles -- to spell out the criteria for what constitutes a good judge. Such criteria would be different from court to court. A judge of far less depth and breadth than what one would want on the supreme court could likely handle the workload of a district court judge, especially in a small municipality where most of the cases are straightforward civil and criminal matters. Appellate courts would require even more sophistication, and so forth. While I am well aware of the ideological squabbles over "judicial philosophy" which continues to capture too much public attention, at the end of the day I -- and I believe most lawyers and legal academics -- would be satisfied with a judiciary comprised of clear thinking, articulate, and pragmatic individuals who aren't so wedded to some "meta" approach to law that it gets in the way of rendering sensible decisions. Although that may not be the "ideal," one takes what they can get in a liberal democracy.
Mon, 12/15/2014 - 10:52pm
Mr. Sanchez, Thank you for reading my comments, I appreciate you invested your time. I would like to say practice improve perfromance, but the reality is purpose overrides skill. I doubt my comments were different from the past, except I bit less thoughtout. I did not reject or accept your positon, I simply raised questions about the issue at hand. I don't have access to my comments on your other articles, but I suspect that they followd the same theme of identifying points that were not addressed in the article. I past comments may have sparked a bit more emotion, but the theme was the same. It seems you write based on topics that trigger an emotional drive more then on thoughtful consideration for measurable results. If emotion is the driver then then the response is best framed to drawn on emotion, if time permits. However, if the driver were change to achieve a measurable impact then the response should be written accordingly. Even in your response here you have been driven by emotion, making a personal comment rather then addressing what was in the comments. "I am not suggesting a system of “legal cronyism,” " I did not say that was what you wanted. I offer it as a risk if there were no criteria for the selection panel to apply. I am curious how you leaped from my example of a risk to your believing I was ascribing it as a desire you had. I am curious about limits, your article seems shorter than many posted on Bridge. I have to admit I abuse any such limits, I do it because I expect no conversation thus spend more time then maybe necessary to describe my approach. If Bridge does have limits, or word counts they would be more comfortable, please share then and I will make the effort to comfort to them. If not from Bridge, if you have a word count you would prefer please let me know. It make take another article for the criteria, but I believe that would create so much value by helping voters like myself to make more informed choices when we vote. I could see how such an article could change the campaign process, addressing a need voters have that is being overwhelmed by the current campaign ads. Please offer the criteria you have found to be valuable for evaluating judicial candidates. I would hope you could include a bit about why each element of the criteria is important. As an example; you mention breath and depth, without a specific definition/description for each, that would require a voter to assume what they mean and thus they would provide no new information to the voter. As and example, I doubt you feel I have breath or depth and I would have agreed until I started reading Bridge for I thought I had led a sheltered life with a narrow education, but I have come to find out there are many things my experiences apply to beyond the particular situations I learned them in. The importance of well defined criteria to minimize the assumption and inconsistent use of information. Thank you again for the time you have taken to write the article, for it caused me to pause and think and articulate my thoughts, and for you taking the time to read and comment on my remarks.
Mon, 12/15/2014 - 1:36pm
While you are questioning why we have elections for judges and I agree with you, we have to question a whole lot of other offices while we're at it. Drain Commissioners? University Regents? I could go on and on. Remember we live in a world where most people can't name or identify their respective party affiliation of their US Congressman, Senators, and Governor , do we really think they have a clue about judges, Dog Catchers and Etc.? Michigan is at the top of the list for number of elected offices we have, (Do we really need Townships?) and we're not getting our money's worth!