Monday, 19 September 2011

Should Judges Be Appointed, Elected, or Chosen by a Nonpartisan Commission?

"Missouri: Trial-Lawyer Heaven" at National Review's Bench Memos blog says:
Late last week Missouri’s judicial-nominating commission selected the three nominees from which Gov. Jay Nixon must choose the state’s next supreme-court justice. ...
Three of the commission’s seven members have extremely strong ties to the state’s trial lawyers, and the chairman, Chief Justice Richard Teitelman, is on the board of the Soros-funded American Judicature Society. So it shouldn’t surprise anyone that the commission came through with a trial lawyer’s wish-list.

The Missouri Plan was designed to produce precisely this sort of result. The progressive legal reformers who came up with the idea saw it as the surest way of placing control over judicial selection in the hands of “experts,” left-leaning bar apparatchiks. ... It does so by allowing a commission, usually lawyer-dominated, to make the judicial nominations. Not surprisingly, this structure benefits the special-interest group that dominates the state bar: trial lawyers. Textbook agency-capture.

Justice O’Connor and her allies in various Soros-funded groups have been campaigning across the country on the argument that the Missouri Plan is a non-political method for selecting judges. ... They argue that, unlike the federal model or contested elections, the Missouri Plan removes partisanship and money from the equation and forces “merit” ahead of philosophical considerations.

As the Wall Street Journal documented (see here and here), former Republican governor Matt Blunt was repeatedly sent lists of trial lawyers and Democrats. And Professor Brian Fitzpatrick’s empirical study of the Missouri Plan nominees demonstrates that it would probably be impossible to tilt judicial nominations further to the left without actually having the Democratic party itself pick the judges.


  1. The author complained that the commission is "lawyer-dominated". Whether you agree with the commission or not, why wouldn't you want it to be mostly or entirely lawyers? I feel politicians on committees usually cause more harm than good because they are never experts in the field.

    Our courts don't necessarily represent the people. They are supposed to represent and uphold our laws. The problem touched on in this blog, and I agree, is that this problem of committees and appointment would not be so noticeable if judges were not doing so much legislation from their bench.

  2. Certainly this is not right. Our courts are being shaped by politically connected companies. Companies that pay sums of money, or well connected groups fund those that choose these lists or panels. As with much of government, I believe that anybody can be bought, this is just another example of that.

  3. This is just not fair. Just as the agency capture in our textbook, it will make the court work in the lawyers' favor and lose its impartiality. Besides, it also leans towards the specific party that has control over the commission. Even though appointment and election have their own drawbacks, this is even worse. And as Kyle said, why the commission only has 7 members? The number is just too small to make any significant difference from direct appointment.

  4. I agree with Kyle’s point. The nature of the commission may cause it to be lawyer dominated. The fact that it specifically favors trial lawyers is unfair. The process shouldn’t be partial towards any groups to ensure that certain groups of people don’t have majority control and the commission is balanced.

  5. In answering the question that is the headline of this blog, judges should be elected. Mostly for reasons shown in this article. If a judge is elected, then there is an inherent conflict of interest to side with rulings that favor the party that put them in office. If a nonpartisan commission appoints a judge, then the members of the nonpartisan commission have incentives to appoint judges that will further their cause, rather than judge objectively.

    If a judge is elected by the people, a judge can make objective rulings and be fair to both sides of a case. Also, electing judges allows for a decentralized justice system. This is a benefit, because not all communities are the same, so a judge cannot be expected to perform to the best of his/her ability if appointed by a state legislator who does not know a specific area very well.

  6. The problem here is that the nominating right is centered in the hands of very few people with same interest. I'm an layer in politics but this situation may be similar to monopoly problem in economics. There is no doubt that the minority syndicate will take advantage of their exclusive rights to transfer surplus of others to themselves.

  7. I think the argument is silly. This is no different than if the governor himself where to select the candidate. A republican governor is likely to select a republican candidate for the state's supreme court and vice versa. At the very least with this system there are three candidates from whom he can choose.

    Anytime a selection process is left to one person and is not up for vote, special interests come into the forefront. I can't say that I think having a state's supreme court made up of liberal trial judges is a bad thing. After all, they know the law, and as liberals will probably be more apt to rule in favor of passing case law that will help protect people's individual civil rights.

  8. It is difficult to say which of the choices would lead to the optimal fairness/effectiveness. Anyone can be influenced through networks, lobbying, or money, and everyone have there biases.

    Should they be elected democratically? I think not because voters are too easily manipulated.

    Appointed be agency? Maybe, but its hard to tell how independent it would actually be.

    All these have their drawbacks. If I had to choose one I'd go with the nonpartisan appointment because my belief of its neutrality compared to the others.

  9. The difference from direct appointment by the government comes because the commission has the ability to nominate candidates who are all very similar to each other and are different from what the governor would choose or the voters would elect. The question is whether taking this power from the voters and giving to the lawyers active in the state bar association produces better or worse judges.