The Increasingly Fractious Politics of Nonpartisan Judicial Selection: Accountability Challenges to Merit-Based Reform

23 Pages Posted: 3 Feb 2013

Abstract

In the 2010 U.S. election cycle, a campaign that identified judicial accountability as a key concern altered the tenor of nonpartisan judicial selection. Supporters of this burgeoning campaign spent generously on heated retention election advertising to unseat incumbent judges on the basis of rulings considered to be activist (in a politically liberal valence). A notable example resulted in the removal of three Iowa Supreme Court justices who joined in the unanimous 2009 ruling that declared unconstitutional under Iowa‘s equal protection clause a statute restricting civil marriage to opposite-sex couples. These retention election expenditures, and the intensity of the anti-incumbent messages they have underwritten, are generally regarded to be unusual in the states that have adopted Missouri Plan systems: they expose the judiciary to the very dynamics surrounding political processes that Missouri and other reform states had determined were a threat to judicial independence. Underpinning the anti-retention advertising that targets specific judges is a broader challenge to the method of selecting state judges. Judicial accountability advocates favor a return to judicial selection by popular ballot, or at least a modification of current methods of selecting members of judicial nominating commissions that accord lawyers a structural role. They argue that these changes would make the judges nominated through this process more responsive to a broader swath of the state‘s population. To this end, they have launched ballot petition drives, commenced litigation, and proposed legislation to challenge nonpartisan judicial selection methods allegedly dominated by members of the legal profession and that reduce the input of the general electorate.

This article describes these recent developments and offers preliminary assessments of their implications. It does not argue for the superiority of merit-based, electoral, or other methods of judicial selection but rather focuses attention on one of the assumptions underpinning the merit-based plan: that its features remove judicial selection from the often bruising dynamics of partisan electoral systems. Specifically, it analyzes the framing of accountability challenges that seek to alter both specific outcomes of a merit selection process and the structure of the process itself. It begins in Part II by sketching out key arguments in the debate among judges and scholars on the contours of judicial accountability. It then documents strategies of advocacy, legal and popular, that have challenged the signature features of the Missouri Plan on accountability grounds. Part III considers the specific rhetorical framing of accountability advocacy in its various forms and contexts and broaches questions about the implications of these challenges for further study: (1) Should the judicial accountability campaign be assimilated to earlier democratizing initiatives for selecting members of the judiciary? (2) How has the campaign used critiques of liberal judicial activism and anti-lawyer skepticism as frames for its challenges to nonpartisan judicial selection methods? (3) Is the advocacy to restore democratic accountability to the choice of nominating commission members an organic expression of grassroots or populist sentiment, or is it more complexly aligned with elite-based efforts at conservative mobilization, and if so, which elites? Further analysis of these questions may yield insights into the future direction and prospects for success of accountability challenges to the structural role of lawyers in merit-based judicial selection.

Suggested Citation

McArdle, Andrea L., The Increasingly Fractious Politics of Nonpartisan Judicial Selection: Accountability Challenges to Merit-Based Reform. Albany Law Review, Vol. 75, No. 1799, 2011/2012, Available at SSRN: https://ssrn.com/abstract=2211281

Andrea L. McArdle (Contact Author)

CUNY School of Law ( email )

2 Court Square
Room 4/309
Long Island City, NY 11101
United States
(718) 340-4348 (Phone)

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
30
Abstract Views
402
PlumX Metrics