I received a couple comments questioning my recent post, “JudgesOnMerit Runs Up the White Flag” and my reference to the Federalist Papers.

My point in quoting Madison was that the Founders believed in our democracy all public officials must be accountable to the “great body of the people,” not to a small, elite group, as they would be under “merit selection.” Even federal judges, Madison noted, are indirectly accountable to the people because they are appointed by a President and confirmed by a Senate that are both directly accountable through elections.

Although accountability for judges under the federal system is indirect, it’s evident that both presidential and senate candidates understand the vital role reserved for the people, since in recent years many candidates have run campaigns explicitly on the type of judges they would appoint or confirm to the bench. Republican nominee John McCain has gone so far as to give an entire speech dedicated to informing voters about the judicial philosophy that would guide his appointments. Democrat nominee Barack Obama has made similar statements on the campaign trail. This is not a blanket endorsement of requiring states to adopt the federal system, it’s merely to note how far “merit selection” diverts from the Founders’ democratic vision.

It’s true that elected governors under “merit selection” make the formal nomination for the state bench. The problem, of course, is that none of those nominees are the governor’s choices. Instead, he or she is forced to choose from a list of favorites dictated by an unelected commission comprised primarily of lawyers that meets in secret and has no accountability to the people whatsoever.

Governors from both parties have balked at such an undemocratic means of selecting judges. In Tennessee, where the legislature recently failed to reauthorize the state’s “merit” system, Democrat Governor Phil Bredesen actually sued the judicial selection commission after it kept sending him a list of candidates he found unacceptable. In Missouri, Republican Governor Matt Blunt fought for reforming the nominating commission because it tried to force him to appoint “a justice who didn’t share his principles or those of the voters who elected him.”

If, after reading my post, “merit selection” proponents like JudgesOnMerit.org now support allowing governors full authority to choose judges without the intervention of an unelected, unaccountable, secret commission, maybe there is room for compromise. In my home state of Michigan, for example, the governor selects justices who must then run in contested elections against real opponents to keep their seats on the bench.