The Power of Attorneys: Addressing the Equal Protection Challenge to Merit-Based Judicial Selection

Many states use merit-based judicial selection to limit political influence on state courts. Under merit selection, an independent, nonpartisan commission screens candidates for any open judgeship, sending a slate of finalists to the governor. Because the governor may appoint only from these approved finalists, merit selection constrains the ability of political officials to stack the courts with partisan judges. Yet not all are convinced of merit selection’s merit. Critics of merit selection have assailed the role attorneys play in selecting some of the commission’s members. Though the details vary by state, ordinarily a minority of commissioners must be attorneys, and these attorney commissioners are elected by their fellow members of the state bar. Some argue that, by denying nonattorneys the ability to participate in these closed elections, merit selection violates the Equal Protection Clause of the Fourteenth Amendment. In particular, critics point to the vote-denial aspect of the Supreme Court’s “one person, one vote” principle, which holds that whenever a state charters an election of a public official who exercises general governmental power, all qualified voters must be allowed to participate. This Comment responds to the equal protection challenge to merit selection. It argues that merit selection is constitutional by way of multiple exceptions, both recognized and implicit, to the “one person, one vote” principle. And though critics of merit selection often couch their arguments in prodemocratic terms, this Comment argues that merit selection—like the “one person, one vote” principle—promotes rather than thwarts the will of the people