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...that would select for it, thus assuring that the most qualified judges will be selected. The selection of qualified judges is the primary goal of the commission selection system; indeed, it is implicit in the name commonly applied to such systems: "merit" selection systems. (2) In perfect world, the optimal selection system would be designed with only one objective in mind: to select the most qualified judges.
The reality is that this perfect world does not exist. Initially, there is the problem of reaching agreement on what attributes make someone a qualified judge. While it might be possible to agree on some general attributes, (3) it is difficult to quantify them in any one individual, and just as difficult to determine ways to design an imperfect tool such as a judicial selection system to promote these attributes.
Further, even assuming that these difficulties can be overcome, there is the problem of garnering public support for such a system. Unfortunately, judicial candidates, unlike eggs, do not come with a generally-recognized quality grade stamped on their forehead, visible to all. In fact, in general, the quality of a judge is not readily apparent, and indeed should not be if that judge is doing her job correctly. Very few people in the general population have the time or opportunity to grade the work of judges on the bench or to determine when a judge's decision is good or bad. In such an environment, there is only one universal truth: bad judging is almost always more certain to get a judge noticed than is good judging. As such, a judicial selection system designed with the sole aim of selecting the most qualified judges may not be a system that the public will adopt.
I believe that the commission system of judicial selection provides a better opportunity for the consistent selection of qualified judges than does either judicial election or the federal system of appointment and confirmation. (4) That does not mean, however, that the system cannot be refined to better enhance both quality and public acceptance. The question that must be asked is: what principles, beyond the ability to select qualified judges, should judicial selection systems advance? I assert that, in addition to judicial quality, there are five other "first principles" that should be advanced in an optimal selection system: independence, accountability, representativeness, legitimacy, and transparency. Consideration of each of these principles is necessary to ensure that a judicial selection system is both effective in selecting qualified judges and supported by the public.
This Article examines these principles and how their consideration affects choices in the configuration of a commission-based judicial selection system. Part I examines and defines the principles and discusses each one's application to different aspects of the commission system. Part II discusses the implications that consideration of these principles as a whole has on the commission system. While these principles do not dictate one perfect system, they do set up parameters within which experimentation can occur to further refine the commission system.
I. BEYOND QUALITY: THE OWNER FIRST PRINCIPLES
As noted above, there are five qualities that an optimal judicial selection system should be designed to advance: independence, accountability, representativeness, legitimacy, and transparency. Some of these principles, such as independence and accountability, have been addressed at great length in judicial selection literature. (5) Others, such as transparency and representativeness, have been treated much less comprehensively. Each of these principles, however, plays a vital role in developing a judicial selection system. By examining each principle in detail and looking at the ways in which a judicial selection system might be configured to advance them, it is possible to design a system that not only selects judges who possess a high degree of judicial quality, but a system that will also be recognized by the general public as valid in accomplishing this purpose.
In advocating the advancement of these principles, I realize that two of them, independence and accountability, are diametrically opposed. The ideal approach in addressing these principles, therefore, is to find the proper balance between them. Further, some of the other principles, although not directly opposed, still have an inherent tension when applied to the mechanics of a selection process, in that if part of the selection process is configured to advance one, it may not be as effective at advancing another. The key with regard to those principles is finding the proper mix that will advance each attribute to the maximum extent possible. Because of this tension, and because these principles are not fully quantifiable, it is improper to speak of an "optimal" selection system. Instead, it is more proper to speak of an "optimal range" of selection systems that balance these principles to different degrees.
A. Independence and Accountability
The concept discussed most often in the field of judicial selection is judicial independence. (6) The discussion frequently emphasizes the importance of this concept, using lofty rhetoric referring to judicial independence as "'the backbone of the American democracy,' the 'bulwark of the Constitution,' and 'an indispensable element of our constitutional framework and its commitment to freedom." (7) These labels unqualifiedly embrace judicial independence not only as a critical attribute of a selection system, but indeed as the critical attribute, without which a selection system is ineffective. (8)
More recently, however, other scholars have cast a skeptical eye toward the concept of judicial independence on several grounds. (9) Many of these scholars argue that judicial independence is difficult to define in a useful manner, (10) "does not further the development of normative theories of adjudication," (11) "does not advance understanding of the functioning of extant judicial systems," (12) and "does not aid in the design (or improvement) of judicial institutions." (13) Others question whether judicial independence actually exists at all, because evidence suggests that judges are heavily influenced by political factors, including personal preferences, interbranch pressure, and public opinion. (14)
While the skeptics make several good points regarding the difficulties in defining and achieving judicial independence, the concept is still useful, both in legal theory and in the design of a selection system, but first it must be defined in a meaningful manner.
In the past, I have defined judicial independence as the concept that "a judge, in deciding a case, should not be forced to consider whether his or her decision, if contrary to public opinion or the will of the executive or legislative branch, will result in the loss of his or her job." (15) Others defined judicial independence as an absolute: "a judiciary free from partisanship, political pressure, special interests, popular will, and, most importantly, a judiciary guided by the sovereign will of the people embodied in the United States Constitution and its Amendments;" (16) or as a measure: "the extent to which a court may adjudicate free from institutional controls, incentives, and impediments imposed or intimidated by force, money, or other extralegal, corrupt methods by individuals or institutions outside the judiciary, whether within or outside of government." (17)
Each of these definitions captures at least part of what we think judicial independence should mean--that no extraneous influences, such as public opinion or fear of reprisal from other branches of government, should influence a judge's decision. (18) Further, each of these definitions is valuable in describing the general ideals of our judiciary, and in making large-scale comparisons of different systems. If we are to have a working definition that can be used in designing a selection system, however, we need to go deeper.
As some skeptics of the topic have pointed out, there is a need to distinguish between those influences on a judge's decision that are proper, and those that are improper. (19) Despite the lofty rhetoric associated with the idea of judicial independence, no one would argue that judges should be completely free from all influence from other branches of government. For example, we expect judges to be bound by statutory language, which is promulgated as the result of political action by the legislative and executive branches. (20) Further, we expect judges to be influenced, at least to some extent, by precedent, persuasive authority, and stare decisis, which are the products of other courts and other judges.
There are other forms of influence, however, which we recognize as improper, or at least "inappropriate." (21) Most of these affect what has been characterized as "decisional independence," that is, the power to decide a specific case in a specific way. (22) Among these influences are worries of reprisal from either the executive or legislative branch should the judge fail to decide something in their favor. These reprisals may be personal, as in threats that a judge will lose his or her job through executive or legislative action such as impeachment, or they may be systemic, such as threats to cut the judiciary's budget or change the method by which judges are selected. Judges may also be influenced by fear of public reprisal, in the form of concern that he or she will be voted out of office at the next opportunity.
Even in defining those types of influences that are improper, however, we must be cautious. Actions that are improper in response to a specific decision may in fact be, at the very least, less improper when applied to a string of judicial decisions or a course of conduct. It may be proper, and indeed desirable, for a legislature to suggest modification of a judicial selection process that results in the selection of judges whose decisions are not well-reasoned or thoughtful, or for the public to turn out a judge whose decisions reflect arbitrariness, bias, partiality, or prejudice. While these actions reduce judicial independence, we tend to think of them as not altogether improper, because they promote a countervailing value--judicial accountability. (23)
Moreover, there are some influences which, even though we think of them as improper, are beyond the scope of influences that a judicial selection system can effectively regulate. For example, there is no way a judicial system can attempt to account for the legislature attempting to change the selection system in response to a particular decision. Similarly, a selection system can do very little to respond to an attempt by the judiciary to cut financial resources in response to such a decision. These threats to judicial independence must be addressed through other means.
Finally, there are some influences that, although they are what we generally think of as improper, are hard to remedy because they are not readily apparent. Social science research has identified several influences on judicial decision-making that fall into this category: personal preference, interbranch pressure, and public opinion. (24) The research suggests that, even absent overt influences such as political threats or worries, judges are often influenced by their own political attitudes, the expected strategic consequences of decisions regarding the courts' relationship with other branches, and their perception of how the decision will play to the public. (25) There is also some evidence that judges may be influenced by what so-called societal "elites" will think of their decisions. (26)
These influences are difficult for a judicial selection system to address, at least completely. Because these influences are subtle, rather than overt, the selection system is a crude tool to remedy them. At best, the system can try to reduce their impact.
The inability of a judicial selection system to remedy all improper influences does not mean, however, that the system should not be geared to advance judicial independence where it can. Judicial selection systems can advance judicial independence in at least two significant ways. First, they can reduce the likelihood that selected judges will be subject to outside influences by making sure that the selection process is sufficiently diversified so that no one group or political actor has an excessive amount of power in making an appointment. Second, they can reduce the pressure of outside influence on sitting judges by providing sufficient job security.
In deciding how to accomplish this, the second of my suggested principles, judicial accountability, should be considered. Judicial accountability is the idea that in a democratic society judges should, at least to some degree, be popularly accountable for their decisions and conduct. (27) Judicial accountability is important in the field of judicial selection because it works to enhance the public's respect for and confidence in the judicial system. (28) In this regard it is closely tied to the idea of legitimacy, but rather than providing public confidence in the selection of judges, accountability is concerned with public confidence in the retention of judges.
Judicial accountability is the "opposite side" of the coin from judicial independence. (29) As noted above, accountability and independence do not coexist as absolute values; instead they are in opposition to each other. Any measure of accountability necessarily limits judicial independence. Therefore, in designing a judicial selection system the question is not how to maximize both, but rather how to strike the balance between them.
All judicial selection systems are to some extent an attempt to strike this proper balance. At one end of the spectrum there is the federal system, which is heavy on judicial independence, but light on accountability. (30) At the other end of the spectrum there are partisan and non-partisan election systems, which have chosen to strike a balance that is heavily weighted toward accountability at the expense of independence.
The "Missouri Plan" version of the commission system attempts to promote independence through the use of a non-partisan committee that selects three candidates to send to the appointing officer, while acknowledging the importance of accountability by providing for retention elections. (31) Other versions of the commission system provide for slightly different balances between independence and accountability. Some systems, such as the one used in Rhode Island, are arguably more weighted toward independence than even the federal system in that the commission advances the candidates and, once they are selected, judges with good behavior serve for life. (32) Others, such as the system in place for New York's Court of Appeals, arguably provide less independence and greater accountability. In that system, judges must be reappointed by the commission and the governor, with the advice and consent of the senate, in order to be retained. (33)
The question for developing a selection system, then, is where to draw the line between independence and...
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