Historical Background of Merit Selection

In the earliest days of the United States, selection of judges conformed to the English tradition of appointment. In fact, New York established what is perhaps the nation’s very first merit selection system: At its first constitutional convention in 1777, it conferred the authority to appoint judges upon a Council of Appointment. In 1821, the second constitutional convention abolished the Council and transferred the power of judicial appointment to the governor.

By the middle of the 19th century, citizens across the country had become wary of judges that they regarded as too closely identified with the upper classes. In 1846, New York became the second state (Mississippi was the first) to abandon appointment entirely, in favor of an wholly elected judiciary.

However, New Yorkers soon grew uneasy with a pure elective process. Partisan political machines began to dominate the elective process, including judicial elections. Charges of abuse of power and judicial corruption grew, and by the end of the 19th century, change was again afoot. In 1894, the authority to appoint justices to the Appellate Division was conferred on the governor. The Mayor of New York City was also granted power to appoint judges to the New York City Criminal Court.

The backlash against elected judges was not confined to New York. In the early part of this century, a group of leaders of the bench and bar founded the American Judicature Society (AJS), a national organization that still exists today. The mission of AJS was to improve the administration of justice, in large part, by advocating the institution of merit selection. Finally, in 1940, Missouri became the first state to adopt a real merit selection system, leading to merit selection’s misleading nickname of “the Missouri Plan.”

New York did not follow suit. However, in 1949, it did grant authority to the governor to appoint judges to the Court of Claims. Finally, in 1977, New York voters approved a state constitutional amendment that provided for merit selection of the judges of the Court of Appeals, New York’s highest court. Thanks to an executive order implemented by Mayor Koch, and continued by Mayor Dinkins and Mayor Giuliani, judges of the Family and Criminal Courts in New York City are chosen via a merit selection process. Efforts continue to institute a merit selection process for all judges in the State of New York.

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