Sandra Day O’Connor distinguished herself on the Supreme Court with one overarching theme that animated her jurisprudence: the aggrandizement of judicial power at the expense of republicanism. She was ever The Nation’s Nanny. Now in retirement–for which we can all be grateful–she continues to fret that America has too much democracy, and not enough respect for the wisdom of judges to solve all our problems. Gallivanting around the country giving speeches on imaginary “threats” to “judicial independence,” starting up websites that teach young kids about the virtues of government by judiciary, and now teaming up with something soothingly called the Institute for the Advancement of the American Legal System in order to persuade state legislatures to exchange judicial elections for “merit selection” of judges. This is a system in which what typically happens is that an appointed commission supplies the governor with a short list of names from which he chooses a judge to appoint; some years later there is usually a “retention election” in which the judge’s continuance in office is decided, but he faces no opponent.
The Institute’s founder Rebecca Love Kourlis, a former state judge who was chosen by such a method herself, tells the New York Times that “a better caliber of judge” results from such “merit selection.” This is a wholly unproven proposition. There are virtues and vices of every method of judicial selection. But there is at least as much evidence that “merit selection” is favored by the organized bar for its protection of judicial power from public accountability, as that judicial elections result in the compromising of judicial impartiality thanks to the pressures of fundraising. It is perhaps worth noting that the same Times story refers to last spring’s Supreme Court decision in Caperton v. Massey Coal, in which the majority made incoherent new law that will make it hard for elected state judges to tell whether or when they have to recuse themselves from cases in which the parties to the litigation exercised their democratic rights to influence state judicial elections. (See here for my comments on the case last spring.) This was a 5-4 ruling that would surely have been 6-3 if Justice O’Connor were still on the Court, so Justice Kourlis’s applause of it is not surprising, and she may be right that the timing is good for this new pushback against democracy and judicial accountability. Let’s hope she is also right about how hard it is to get people in a democracy to give up a measure of direct control over the judges who arrogate more and more power to themselves.