A Plea for Reality

Legend has it that a long-ago Chief Justice of Texas said, “No judicial selection system is worth a damn.” This view has been all but proven by American experience; nothing else in American law matches this subject in terms of the volume of written debate and endless sweat spent working for change. The selection system for federal judges is unchanged but far from untroubled, and the States have never used a common method . . . . [O]ne can identify almost as many different methods . . . as there are States in the Union . . . . Moreover, most States have changed the way they choose judges at some point in their history, often more than once. My focus is on judicial elections. Since I began work on them, I have adhered to agnosticism about methods of selection. One reason is this: My writing and work aim at making a difference, but to say anything new on this subject seems almost impossible, and for the last generation the battles to change selection methods have been futile. Of course past performance is no predictor of the future, but, as the chief justices formally resolved two years ago, “elections will stay in many and perhaps all of the states that have that system.” People who advocate ending contestable elections always point to some pending bill in some state (lately, Nevada), but for over one hundred years, the hurdles in turning proposals into constitutional amendments have been all but insuperable. The endless debate does have new elements. Some “merit” systems have recently suffered unusual confrontations between governors and nominating committees. Also, we have new analyses drawing upon the actual operation of “merit” systems to argue that some are dominated (or even controlled) by the organized bar and that at least some actions have been partisan. Further, unless the Tennessee legislature does this spring what it refused to do in 2008, its “merit” system for appellate judges will terminate in June 2009. This would be the first time for any jurisdiction to return to contestable elections after ending them