A False Choice on State Judicial Selection

by Ed Whelan

Today’s New York Times has an ever-so-predictable house editorial decrying Iowa voters’ ejection of three state supreme court justices. (For a sounder perspective, see Thomas Sowell’s NRO essay today.) Lamenting the fundraising on both sides of the unsuccessful campaign to unseat Illinois chief justice Thomas Kilbride, the editorial concludes:

This year’s campaign is one more reminder of why the 39 states that hold judicial elections should scrap them in favor of merit screening and appointment of judges for a long fixed term.

But the choice of methods of state judicial selection is not limited to elections, on the one hand, and, on the other, a mislabeled “merit” system in which the governor is constrained to select among the few candidates who have been proposed by an unaccountable commission of supposed experts. One obvious alternative is the federal model, under which the governor would nominate judges and one house of the legislature would vote whether to confirm. Another alternative would vest sole appointive power in the governor.

My own judgment is that the merit-deception method proposed by the New York Times is probably the worst of all the obvious options—and that the variant of a “long fixed term” would make that option even worse. But in any event any serious consideration of options for state judicial selection ought to include the straight-appointment model and the nominate-and-confirm model.

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