Peeking Into The Secret Rooms Where Judges Are Selected
January 30, 2009
Some proponents of “merit” selection argue that ordinary voters lack the sophisticated training and legal expertise to properly evaluate judicial candidates. This is why we’re supposed to rest easy when commissioners – typically appointed by state bars and other legal special interest groups – retire behind closed doors to selflessly wade through all the technical legal documentation that is beyond our understanding.
A recently published report by the Brennan Center provides us a rare peek into those rarified chambers. The Brennan Center interviewed commissioners in different states about how one factor – diversity – plays into their selection of nominees. Here are some of the comments:
“[i]f there are women [in the pool], I’m going to make sure that a woman shows up on the [short] list.” Commissioner Strain (AZ)
“[i]f we don’t have enough diversity among anticipated applicants for a particular vacancy, I may suggest to the Commissioners that they reach out to lawyers they know from diverse backgrounds (who are otherwise qualified) to ask them to apply for a particular vacancy.” Commissioner Sachs (MD)
“[w]e don’t have a scorecard, but diversity is considered along the way. Each commissioner puts whatever weight on the qualities they want.” Commissioner Carlotti (RI)
each Commissioner in Florida is “on their own” to do what they feel is right. Anonymous Commissioner (FL)
As a Commission, he said that they “put the word out” to attract more female applicants. Commissioner Diament (NH)
What strikes me upon reading these comments is how ordinary they are – and how closely they resemble the insights you’d get if you asked a group of folks gathered at the corner diner. Far from applying the distilled wisdom that can only be gained by years of complex study of the law, commissioners just seem to “wing it” when it comes to one important factor in choosing suitable judicial nominees.
Which raises an interesting question. If commissioners really aren’t making decisions based on technical competence alone – and if they are basing their decisions on their own subjective opinions, what exactly is the rationale for keeping ordinary voters locked out of the process? Considering that a variety of factors completely unrelated to a prospective judge’s legal expertise can and should be part of the consideration for deciding who should sit on the bench, isn’t it better in a democracy for those decisions to be made by the people rather than a chosen few?