Choosing the Judges Who Choose the President

The stakes for the selection of judges have never been so high. Federal and state court judges have ruled on such divisive issues as education funding, exclusionary zoning, capital punishment, same-sex marriages, school prayer, affirmative action, partial birth abortion, and legislative redistricting. The selection of those who possess such awesome powers is bound to be contested. But the mode of choosing judges is a secondary question. The debate concerning the selection of judges is fueled by a broader debate about the appropriate role of judges. The procedures for choosing those judges are caught up in this larger substantive debate, and rightly so. Any effort to identify the best candidates for judicial office presupposes a vision of an ideal judge or an ideal judiciary. For some, that vision seeks a diversity of life experiences and individual characteristics. For others, the vision focuses on how the legal expertise that a prospective judge brings to the judicial office. But those profound questions begin to fade when selecting a judge who must decide presidential election contests or questions of life and death. Then judicial philosophy becomes paramount. The primary importance of judicial philosophy only begins the debate on the best mode of judicial selection. Neither judicial elections, nor merit based systems, nor executive appointments, nor a hybrid combination of those means can claim to consistently produce judges who possess the preferred judicial philosophy. Instead, the effectiveness of each method depends how they are employed. A variety of innovative responses like those proposed by Paul Carrington, and the creative application of the diverse existing systems, holds the most promise of ensuring the accountability of judges to both the rule of law and to the People