DESIGNING AN APPOINTIVE SYSTEM: THE KEY ISSUES

Fordham Urban Law Journal, Dec 2007

This article contains a selection of advice on how to improve the judicial selection system. The article explains that reconsideration of the judicial appointive systems must include both the broadly theoretical and the intensely practical. It should identify the key questions that must be addressed in creating a system of judicial appointment, elaborate and defend the principles that should guide choices among alternative appointive systems, and clarify how those principles can be translated into institutional arrangements that will advance the goal of a quality judiciary. This reconsideration should also take seriously the arguments and claims of those who oppose the appointment of judges. Insofar as the concerns of opponents are valid, efforts should be made to design an appointive system that is responsive to those concerns.

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DESIGNING AN APPOINTIVE SYSTEM: THE KEY ISSUES

G. Alan Tarr, DESIGNING AN APPOINTIVE SYSTEM: THE KEY ISSUES DESIGNING AN APPOINTIVE SYSTEM: THE KEY ISSUES G. Alan Tarr Follow this and additional works at; https; //ir; lawnet; fordham; edu/ulj - DESIGNING AN APPOINTIVE SYSTEM: THE KEY ISSUES Cover Page Footnote Distinguished Professor of Political Science and Director, Center for State Constitutional Studies, Rutgers University (Camden). B.A., College of the Holy Cross, 1968; M.A., University of Chicago, 1970; Ph.D., University of Chicago, 1976. The author appreciates the useful comments of Norman Greene and Aman McLeod on an earlier draft of this study. Research on this article was supported by a fellowship from the National Endowment for the Humanities, and the author gratefully acknowledges this support. The analysis and conclusions are the author’s alone and do not represent the views of the National Endowment for the Humanities. This article is available in Fordham Urban Law Journal: https://ir.lawnet.fordham.edu/ulj/vol34/iss1/16 DESIGNING AN APPOINTIVE SYSTEM: THE KEY ISSUES G. Alan Tarr * A leading scholar of state judicial elections has estimated that more than eighty-seven percent of state judges go before the voters at some point in their careers.1 This figure, endlessly repeated in the literature, has fostered a perception of the ubiquity of judicial elections.2 Yet one might as readily argue that it is appointment, not election, that dominates judicial selection in the states. Twenty-one states initially appoint the judges of their general jurisdiction courts, while another four states appoint at least some of their trial judges.3 Twenty-two of the states that have intermediate appellate courts appoint their members, and thirty states appoint the justices of their supreme courts.4 Moreover, even in states where selection is nominally by election, judges are often appointed to the bench to fill unexpired terms.5 For example, in a study of accession to state supreme courts from 1964-2004, Lisa Holmes and Jolly Emrey found that more than half the justices (fifty-two percent) in states that elect judges were initially appointed to their positions.6 This is significant because once appointed, these justices often face minimal or no electoral * Distinguished Professor of Political Science and Director, Center for State Constitutional Studies, Rutgers University (Camden). B.A., College of the Holy Cross, 1968; M.A., University of Chicago, 1970; Ph.D., University of Chicago, 1976. The author appreciates the useful comments of Norman Greene and Aman McLeod on an earlier draft of this study. Research on this article was supported by a fellowship from the National Endowment for the Humanities, and the author gratefully acknowledges this support. The analysis and conclusions are the author’s alone and do not represent the views of the National Endowment for the Humanities. 1. Roy A. Schotland, Comment, 71 LAW & CONTEMP. PROBS. 149, 154-55 (1998). 2. See id. at 152-53. 3. These data on judicial selection are found in AM. JUDICATURE SOC’Y, JUDICIAL SELECTION IN THE STATES: APPELLATE AND GENERAL JURISDICTION COURTS, http://www.ajs.org/js/JudicialSelectionCharts.pdf (last visited Oct. 25, 2006) [hereinafter JUDICIAL SELECTION CHARTS]. 4. See id. 5. According to Daniel Deja, forty-four states fill unexpired terms by gubernatorial appointment. See Daniel R. Deja, How Judges Are Selected—A Survey of the Judicial Selection Process in the United States, 75 MICH. B.J. 904, 906 (1996). 6. Lisa M. Holmes & Jolly A. Emrey, Court Diversification: Staffing the State Courts of Last Resort Through Interim Appointments, 27 JUST. SYS. J. 1, 6 tbl.1 (2006). [Vol. XXXIV challenges to remaining in office,7 thus transforming a nominally elective process into an essentially appointive one. In a study of state supreme court elections from 1980-1994, Melinda Gann Hall discovered that barely half of incumbents (52.1 percent) faced a challenger, regardless of whether they were initially elected to the court or appointed mid-term; furthermore, in only 15.5 percent of the races did they fail to garner more than fifty-five percent of the vote.8 Appointed incumbents on lower courts are even less likely to face serious opposition.9 The obvious conclusion is that, although judicial elections may seem ubiquitous, the vast majority of state judges never participate in a competitive election. In states that combine appointment with retention elections, initial appointment is likewise the determinative decision. Despite some heralded cases in which interest groups targeted and defeated supreme court justices, incumbent judges are rarely unseated in retention elections.10 In the most comprehensive study of judicial retention elections, involving ten states from 1964-1998, Larry Aspin found that only fifty-two of 4,588 judges (1.1 percent) were defeated when they sought retention.11 Close elections were likewise rare: the same study noted that the average affirmative vote in re (...truncated)


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G. Alan Tarr. DESIGNING AN APPOINTIVE SYSTEM: THE KEY ISSUES, Fordham Urban Law Journal, 2007, Volume 34, Issue 1,