Why Merit Selection?

Proponents of judicial elections believe that they are appropriate to our democratic method of government.

In fact, many criticize the very concept of merit selection as fundamentally flawed and elitist. Given the fact that we adhere mostly to a representative form of government, such a reaction is understandable. It is also a misconception.

Some opponents of merit selection argue that it removes from the people the right to elect their judicial representatives. This language begs a very fundamental question: Under our system of government, are judges truly “representatives,” in the sense that members of the legislative and executive branches are? The legislative branch is certainly designed to represent specific constituencies; to a lesser degree, the executive performs a similar function. But judges, who must apply impartially the laws created by the other two branches—laws that affect opposing constituencies—are expected to remain above the fray. Canons of judicial ethics require them to remain objective, free of political influences, and unfettered by financial concerns.

Yet, what does the process of judicial election demand? It demands a campaign, usually partisan, which in turn demands that the candidate raise campaign funds—funds that are most likely to be contributed by lawyers who may later appear before the judge. Although judges in New York are barred from “knowing” the identity of their contributors, as a practical matter, it often is virtually impossible for them not to know. In other states, the rules (or at least their enforcement) are less stringent yet: Judges actively campaign, make promises regarding how they will rule in particular types of cases, and actively solicit the support of interest groups.

Opponents of merit selection argue that elections give the people a voice.

However, candidates often do not run in primaries, but are chosen via nominating conventions. As a practical matter, the nominating conventions generally serve as mere rubber stamps for the edicts of the local party leadership. “The people” never really have a choice, because the party’s [sole] candidate is predetermined well in advance of the election. Moreover, New York permits cross-endorsements—deals made between the political parties which permit an unusual kind of partisan horse-trading. For example, if a particularly strong Republican judge, with the advantage of incumbency, intends to run for re-election in a particular county, that county’s Democratic leadership may decide to “cross-endorse” the Republican candidate, in exchange for a similar consideration in a future race. In the case of cross-endorsements, one candidate sometimes appears on the ballot line of every party—thus depriving voters of even the limited choice based on party affiliation.

In addition, studies repeatedly show that the voting public is far less knowledgeable about its judicial candidates than it is about candidates for other offices—indeed, many don’t even realize that their state and local judges are elected, instead confusing them with appointed federal judges. Even when voters do realize that their judges are elected, the odds that they know who their incumbent judges—much less their opposing candidates—are tend to be very slim. Voter turnout also tends to be especially low for judicial elections. None of these phenomena are new, nor are they confined to New York.

Finally, while opponents of merit selection often argue that it reduces diversity on the bench, the opposite is usually true. New York City is unusual: It has a population of incredible ethnic diversity, strong political bases of women and minorities, and, in some respects, a more active electorate than is perhaps present elsewhere. Outside of the city, however, election of women and minorities to the bench—particularly at the Supreme Court level—is much more difficult.

Merit selection—particularly the three-step version—addresses each of these concerns. It eliminates the role of money and significantly reduces the role of politics in judicial selection, and it negates the possibility of conflicts of interest that arise when a campaign contributor (whether lawyer or client) appears before the judge. It provides for selection of highly-qualified judges by representatives of diverse groups of people – legal professionals, members of government, and ordinary citizens, including those who can provide the valuable “outsider’s” view of the non-lawyer. Finally, it promotes diversity, which is healthy not only for society generally but for all users of the justice system – judges, lawyers, litigants, witnesses, victims.

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