The 1970s and 1980s marked the rise of merit selection for judges. However, recent trends have been to eliminate merit selection, alter its components, or return judicial selection “to its roots.”
Jed Shugerman, in his survey of state judicial selection from the Revolution to today, noted that each iteration of judicial selection was buttressed on the notion of judicial independence. Appointment by the governor was the default coming out of the Revolution, but the requirement of legislative confirmation meant the picks for the judiciary were to be at least somewhat vetted. This, in turn, was overtaken by the Jacksonian press for elections for all positions, again to ensure the judges were independent of politicians like governors and legislators. This was challenged by merit selection, which used a judicial nominating commission to vet candidates and retention elections to ensure no party boss controlled the process.
In the last several years, however, there has been pressure to move away from merit selection and, in the words of G. Alan Tarr (Rutgers University) and Brian T Fitzpatrick (Vanderbilt Law School), return judicial selection “to its roots.” This movement has come to the fore in the last eight years. One would have to go back to 1972-1980 to find another eight-year period in which so many judicial selection measures were enacted, or on the ballot, in so many states.
Movement Away from Merit Selection
Where the 1972-1980 period saw a focus on creating merit selection systems in the states, many of the 2006-2014 efforts have focused on ending such systems. Favored in particular as a replacement are quasi-federal systems: the executive appoints, the legislature (senate or house and senate) confirms, and the judges are subject to retention elections thereafter. Such a plan was adopted for the Kansas Court of Appeals in 2013, while at the same time a similar effort to end merit selection for the Kansas Supreme Court was approved by the house but failed to receive the required two-thirds vote in the state’s senate. Tennessee, whose merit selection plan had to be statutorily renewed on a semi-regular basis, allowed it to lapse. Instead, Tennessee voters in 2014 will decide whether to adopt a quasi-federal system.