Wednesday, November 11, 2009
Professor Brian T. Fitzpatrick (Vanderbilt Law School) has posted "The Politics of Merit Selection" on SSRN. It will be published in the Missouri Law Review.
In this Article, I undertake an evaluation of a method of judicial selection known as “merit selection.” The merit system is distinctive from the other systems of judicial selection in the powerful role it accords lawyers. Proponents of the merit system contend that it is superior to the other forms of judicial selection — elections or appointment by elected officials — because lawyers are more likely to select judges on the basis of “merit” and less likely to select judges on the basis of “politics” (i.e., the personal ideological preferences of judicial candidates) than are voters or elected officials. But even if lawyers are better able to identify more intelligent or more qualified judges, it does not follow that they are less inclined to consider the political beliefs of judicial candidates. Lawyers are just as likely to be concerned — if not more concerned — with the decisional propensities of judicial candidates as are voters and elected officials. Moreover, insofar as a judge’s personal ideological preferences are correlated with his or her decisions, and insofar as those preferences are often more easily observed than his or her decisional propensities, lawyers are likely to accord those preferences just as much weight as voters or elected officials. That is, merit selection may not remove politics from judicial selection so much as it moves the politics of judicial selection into closer alignment with the ideological preferences of the bar. This movement could have consequences if the distribution of ideological preferences within the bar differs from the distribution among the public. Many people believe that lawyers as a group are, on average, more liberal than are members of the general public. If this is true, then one might expect that bar associations would select judges who are more liberal than those who would have been selected by the public or their elected representatives. Although far from conclusive, I collected data on the judicial nominations in two merit states, Tennessee and Missouri, and the data is consistent with this hypothesis.