Electing vs. Appointing Judges: Another State's Take

A hot issue here in Washington and across the country is the selection of judges, especially for state Supreme Court.  Here in Washington, like several states, we elect our supreme court justices in non-partisan statewide elections.  The issue has become interesting enough that it has penetrated into pop culture, largely thanks to John Grisham's latest top-selling fictional foray, "The Appeal," which is about a tawdry effort to elect a state Supreme Court Justice to influence the outcome of an appeal.

Especially after years like 2004 and 2006, where we had a couple high-profile, expensive, and acerbic races, much ado is made about campaign money and special interests tainting the election of officers to what's supposed to be a politically independent branch of government. 

Hence a gravitational pull amongst some bar leaders toward ideas like public financing of judicial campaigns and "merit selection," a form of selecting judges that a number of other states employ.  It goes something like this: a citizen's commission interviews and endorses a slate of nominees to the Governor who makes an appointment to the bench.  The judge then runs, on an up or down retention basis, after a given term of service.  Last month's issue of the Washington State Bar News is devoted to a debate on the merits of merit selection, with the "majority report" of a Judicial Selection Task Force arguing decidedly for a merit selection approach to seating Washington judges.

Which is all a long introduction to a short piece in today's WSJ about Tennessee.  They've had merit selection in place for awhile.  And the results confirm the fears of those who favor elections rather than appointments:

Intended as a way to keep politics out of judicial selection, the method has instead given disproportionate influence to the state trial bar and tilted state courts leftward. . . .

Instead of diluting the influence of politics over the courts, the system has aggravated it so much that even Democratic Governor Phil Bredesen has had enough. The commission has sent him the same nominee repeatedly in an effort to shoehorn a favorite son onto the state's highest courts. Concerned that the best candidates weren't put forward, the Governor in 2006 said he was "taken aback by the game-playing" of a commission "trying to force people down my throat."

The Journal's view?

The Tennessee plan was conceived as superior to the political brawls of states that elect their judges directly. But special interests have ended up more empowered than ever in a system less transparent and accountable. Trial lawyers are running the selection process behind closed doors. Isolating courts completely from the reach of politics is a pipe dream, but keeping judges democratically accountable (through election, or nomination and confirmation) is the best way to keep the system honest and serve all citizens.

Despite the deliberations of bar leaders, Washington is likely to keep it's election system in place.  This year's judicial races do not appear likely to inflame the same passions of prior years.  Three incumbent justices are seeking re-election, and at this late stage, only one is opposed.  But presumably, the bar's task force will keep the issue alive, and so the evidence from other states on the merits of merit selection will remain instructive.