Article Critique

[*73] LIBERTY CANNOT EXIST DIVORCED FROM JUSTICE. This principle was painfully illustrated by the French Revolution, the Reign of Terror, and the rise of one who promised justice in exchange for the people's liberty: Napoleon. Because a people cannot remain free unless there is justice, an impartial judiciary is necessary for a free society

The question for the past century in the United States has been how to ensure that the judiciary, a necessarily human institution and subject to those flaws common to the human race, can be most just. Were the courts judged by perfect persons, rightly discerning and applying the law without corruption, influence, or personal bias, then the ideal judiciary would be completely independent. In such a perfect world, the courts would seek the approval of none and have no risk of being removed because of unpopular decisions.

No human is perfect, however. The best are subject to biases, influences, and mere shortsightedness. Additionally, having been given power, judges are not immune to the corruption, temptations and human frailties that can affect persons in such office. Imperfection requires accountability. People need accountability. Absolute independence can lengthen, or even induce, injustice in the courts. We believe, and research supports the idea, that the system of partisan elections employed in Texas today provides the best balance between the independence of the judiciary from undue influence and the accountability necessary to ensure that judges apply the law neutrally and as the legislature intended.

Judicial Selection Methods Used in America

In the United States today, three systems are widely employed in the selection of judges: the federal system, popular elections, and the Missouri Plan. n1 The key distinction between these three systems is the extent to which the citizenry is involved.

In the federal system, so called because it is the system that is used to appoint judges at the federal level, the executive--usually the governor--selects a person for a judicial appointment, and the legislature confirms that appointment. Citizens elect the governor and the legislature, so there is some citizen involvement in the federal system, but such involvement is only indirect.

The second system that was employed in the United States was that of popular elections: the people vote for whom they would have be their judges. In some states, including Texas, these races are partisan. Other states have non-partisan judicial elections.

The newest system used to appoint judges is the Missouri Plan, which was first used in Missouri in 1940. n2 The Missouri Plan, an outgrowth of the Progressive movement's desire to replace government by the people with government by "experts," n3 attempts to maximize the independence of the judiciary by having an elite panel, usually composed heavily or entirely of lawyers, provide a list of nominees to the governor, who then selects one of the nominees provided by the panel. If the governor does not select one of the nominees that the panel suggested, then the panel is allowed to make the appointment itself, against the wishes of the governor. A certain amount of time after the judge has been in office, the appointment is submitted to the people for them to vote whether to retain the judge. No challenger is permitted in this retention election. The Missouri Plan attempts to maximize the independence of the judiciary by having the judiciary beholden to neither the citizenry nor the other political branches of government.

In practice, both the federal system and the Missouri Plan underestimate the extent to which the judiciary needs to remain accountable to the people. Both produce heightened occurrences of judicial activism. Interestingly, as will be [*74] discussed below, the partisan election system nevertheless seems to produce the judiciary that is the most independent.

Problems with the Missouri Plan

The Missouri Plan, which is designed to ensure the independence of the judiciary by removing politics from the judicial appointment process, merely pushes political considerations out of the public spotlight and into the "smoke-filled rooms" of special interest groups and political power players. At times, however, these back-room political dealing are pushed into the light.

In Missouri itself, the political nature of the Missouri Plan came into the spotlight in 2008 when Missouri's judicial appointment committee provided three undesirable candidates to Missouri Republican Governor Matt Blunt: left-leaning Appeals Court Judge Lisa White Hardwick, former trial lawyer and Appeals Court Judge Ronald Holliger, and conservative Atchison County Associate Circuit Judge Zel Fischer. Governor Blunt had already rejected Judge Fischer for a lower court vacancy. The three candidates were chosen to favor Judge Hardwick, who was favored by Missouri Chief Justice Laura Denvir Stith, a member of the nominating commission. The Wall Street Journal described the situation:

Though the Missouri Plan is supposed to keep politics out of the process, it has instead transferred power from voters to state bar associations and legal groups that control the judicial commission. The result is a system that's contentious and opaque--and has tipped the state courts steadily to the left. The commission presented Governor Blunt with a similarly rigged panel [in 2007]. ... By nominating Zel Fischer as the conservative option, [the commission] dares Mr. Blunt to either select the less-qualified conservative judge, elevate Ms. Hardwick, or send the whole slate back, which means the commission then gets to make the pick. n4

This process was no less political and ideological than a partisan election, but the politics were for the benefit of a very few, elite persons on the nominating committee instead of for the public as a whole. Unfortunately, with so much of the process hidden in the back rooms, the full extent of the politicization of the Missouri Plan is hidden from the public.

A second recent controversy surrounding the Missouri Plan occurred in Iowa and demonstrates that the Missouri Plan is as political as other systems of judicial selection. When the Iowa Supreme Court overturned Iowa's ban on same-sex marriage, a movement was started to remove three of the Iowa Supreme Court Justices from office in their upcoming retention election. The District Court judge whose opinion the Supreme Court justices upheld in the same-sex case has stated that removing the justices through the retention election is either misguided or an abuse of the system. The mindset of judges has thus reached the point where some are telling citizens that they are abusing the system if they vote no on retention of a judge. Citizens are outraged by such elitism, as they should be. Organizations are now coalescing around both sides of this retention battle. n5

Interestingly, in a study of the extent to which judges vote with other judges of their same party, judges in states with the Missouri Plan are more likely to vote in line with other judges of the same party than in partisan election states. n6 This would indicate that the Missouri Plan actually discourages independence compared to partisan elections.

The Missouri Plan does not remove politics--or even partisan politics--from the judicial appointment process. Instead, the Missouri Plan hides the politicization in the back rooms, granting all of the political advantage to a select few who control the nominating committees, instead of the public at large. Hiding the influences on government officials instead of exposing them is never a benefit.

Benefits of Selecting Judges with the Partisan Election

No system of judicial appointment is or can be perfect. So long as the judges and the persons appointing the judges are self-interested, biased, and imperfect themselves, any system put in place will have flaws. As we have seen, the Missouri Plan, which attempted to solve some of these problems by maximizing the independence and the quality of the judiciary, still yields partisan conflict and self-interested maneuvering among the judges and the persons appointing the judges. Having open elections at least exposes these political maneuverings to the light and ensures that the political maneuvering favors the many instead of the elite few on the nominating commissions and in backroom appointment discussions with top donors. But what about elections? Do they produce mere politicians instead of judges, and do they erode public confidence in the judiciary? Evidence shows that partisan elections do neither.

A recent study that reviewed judges between 1998 and 2000 found that elected judges wrote more opinions than non-elected judges and were more independent (defined as ruling against the interests of the judge's political party) than non-elected judges. n7 At first blush this may seem surprising.

[*75] Why would a system that promotes accountability to the people via partisan politics produce less partisan and harder working judges than a system designed to appoint the most "meritorious" judges and insulate them from partisan politics? While the mechanism was not studied, this result makes sense when the accountability of the judge is taken into account. As has been mentioned, judges are, like everyone, human beings. The absence of any accountability can encourage laziness and self-interested actions in even the best person. While the Missouri Plan does have the retention election to attempt to provide some accountability, judges are retained ninety-nine percent of the time because, except in the most egregious cases, with no opposing candidate to make a case for why the incumbent judge should not be elected, the voters lack the required information to make an informed decision about whether the judge is qualified or not.

While the evidence suggests that elected judges are more independent and decide more cases, what about partisan elections? Other studies found that removing partisan labels "suppresses voting, produces idiosyncratic outcomes, and raises the cost of seeking office." n8 This outcome is not surprising. Voters need information to vote well, and one of the most important pieces on information about a judge's likely judicial philosophy is the judge's party affiliation. Critics charge that attaching a party name to the judge erodes public confidence in the judiciary. Two recent studies, however, found that neither policy talk nor attack advertising has any adverse effect of public confidence in the judiciary and that there are no discernible differences in public confidence between states using partisan elections and states using other systems of judicial selection. n9 While partisan elections do not erode public confidence in the judiciary, they do expose the judicial candidates' ideology to the public. Again, exposing the politics to the public produces better results than hiding the politics in the political shadows in back room appointments and where decisions are made by an elite few with special access.

Because we live in an imperfect world, with imperfect people, accountability is necessary to inhibit self-interest and to encourage hard work. Judicial selection systems based on appointment do not provide enough accountability. Elections without partisan labels provide accountability but not enough information for the voters. By refusing to hide the politics in the shadows and instead bringing the politics and attending philosophies into the light, partisan elections promote transparency and accountability; and partisan elections empirically produce the best judges.

Conclusion

As has been said, in an imperfect world, no system of judicial appointment--and no judge--can be perfect. While partisan elections provide the most accountability, produce the best opinions, and lead to the most independence among the judiciary, there are still flaws and bad actors. Were the system perfect, there would not have been a push in the mid twentieth century to implement the Missouri Plan as a reform of judicial elections. The flaws in the system of partisan elections do not require a new system of judicial selection, however. As more accountability produces better results than more insulation, ensuring that more information about each judge is available to the voters will promote a better judiciary. Entitlement mentalities and elitism should be discouraged. When the people believe that a judge has strayed from applying the law into making the law, the people should not be chastised for attempting to vote the errant judge out of office as happened in Iowa. Additionally, properly applied, codes of judicial ethics and recusal rules are a restraint on self-interest and any appearance of impropriety. Taking power and self-governance from the hands of the people and putting it in the hands of a few is usually a bad idea. Elected officials tend to remember more often that they are public servants, not servants of some power figure who caused their appointment. Let us not forget that the judiciary no less derives its powers from the just consent of the governed than any other branch of government. The Texas system is simply the best approach.

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For related research and practice materials, see the following legal topics:

Civil ProcedureJudicial OfficersJudgesDisqualifications & RecusalsGroundsAppearance of ImproprietyGovernmentsCourtsJudgesTortsPublic Entity LiabilityImmunityJudicial Immunity

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