“Merit” Selection And The Founders
April 24, 2009
Former Supreme Court Justice Sandra Day O’Connor was campaigning in Indiana for “merit” selection earlier this week. Justice O’Connor dismissed the idea that judges should be chosen by the people through democratic elections and trots out the Founding Fathers in support of her cause:
“Our forefathers would be surprised to find they were establishing a tyrannical system when they wrote the Constitution.”
In making this comparison, Justice O’Connor seems to be arguing that “merit” selection is somehow analogous to the federal system of selecting judges. But is this a fair analogy?
Federal judges are chosen by a President who is accountable to the people and confirmed by Senators also accountable the people. Public opinion about everything from the proper role of judges to the judicial philosophy that should guide the decisions of federal judges is so important that presidential and senate candidates devote entire speeches and policy papers to assuring voters their wishes will be taken into account.
Judges who reach the court under “merit” selection, on the other hand, are typically chosen by a small committee that is accountable to no one and is dominated by a single special interest group (lawyers). Neither the state’s governor nor senators can be held responsible by the voters for the ultimate selection because they are bound by the choices of the committee, so the pick isn’t theirs. Judicial selection commissions typically meet in private, making the process even less transparent and less accountable. Once on the bench, judges are “retained” in potemkin elections at rates that would make the old Soviet Politburo members blush.
The Founders believed that judges should be independent, but also accountable, which is why they didn’t concoct a system as undemocratic as “merit” selection. As James Madison wrote in Federalist 39:
“It is essential [Madison’s emphasis] to such a government [a democracy] that it be derived from the great body of the society, not from an inconsiderable proportion, or favored class of it….It is sufficient [Madison’s emphasis] for such a government that the person’s administering it be appointed, either directly or indirectly, by the people….Even the judges [under the Constitution] be the choice, though a remote choice, of the people themselves…”
If the federal system was truly analogous to “merit” selection, federal judges would be chosen by a secret committee chosen by lawyers from interest groups like the American Trial Lawyers Association and the American Bar Association; the President would be bound to choose from the list of nominees anointed by the committee; and Senators would have no confirmation role whatsoever. Viewed in light of Federalist 39, it seems plain that “merit” selection – where judges are chosen not by the “great body of society” (i.e. the people), but by “an inconsiderable proportion, or favored class of it” (i.e. a tiny committee of lawyers) – is exactly the type of system the Founders wanted to avoid.