The Debate over the Selection and Retention of Judges: How Judges Can Ride the Wave

There is a surge in the debate in the U.S. over the methods of judicial selection and retention, with some rallying for merit-selection plans, others continuing to support judicial elections, and virtually no one proposing lifetime appointments. The impetus for this surge may be related to three recent U.S. Supreme Court cases, Republican Party of Minnesota v. White, Citizens United v. Federal Election Commission, and Caperton v. A.T. Massey Coal Co., and to the exploding amount of campaign funds raised in judicial elections. These factors seem to have once again brought to the forefront the judicial election method and consequently revitalized the merit method, which had been dormant for three decades. Whether this boost in the debate is tantamount to a new movement, a continuation of an old movement, a blip on the radar screen, a wave, or a full-fledged tsunami, remains to be seen. But one thing is clear: since the United States’ inception, there have been periodic movements to change the method of selecting and retaining judges, and the methods have often been complex and convoluted. There were essentially three major movements in the U.S., which I will refer to as the “Original Lifetime Appointment Movement,” the “Jackson Democracy Movement,” and the “Progressive Reform Movement.” Not unlike the present debate, political, legal, social, and cultural factors have all served as the catalysts for these movements. Although there have been some slight variations, these movements essentially involve four different selection methods: lifetime appointment, partisan election, nonpartisan election, and merit selection and retention. These movements have been in a constant state of flux, with many states using constitutional amendments, legislative acts, ballot initiatives, and executive orders to both move in and out of the methods, and to make modifications short of complete overhauls. For example, 9 of 16 states that initially only used the appointment method switched to judicial elections for some level of their judiciary, 14 states changed from partisan to nonpartisan elections, and 15 states have changed from partisan or nonpartisan elections to some form of the merit method. When all is said and done, over the last 234 years, this activity has resulted in 39 states deviating substantially from their initial selection method. Notwithstanding these major changes, there have been far more slight modifications and failed attempts, than an actual change in judicial-selection methods. There were approximately 358 method modifications, including but not limited to, the creation of commissions, change in term lengths and periods, change in the mandatory retirement age, and change in the appointing authority. Additionally, there have been approximately 66 failed attempts to change methods