Jul 31 2013
One of the most common criticisms of merit selection systems is that “elite” groups of attorneys are nominating judges. The frequently unstated implication is that since the nominators are lawyers, they are going to pick judges who will serve their interests rather than those of the general public.
There are a couple of problems with this argument. First, approximately three-quarters of the states (and the District of Columbia) use merit selection on some level, and all but a couple require there to be non-lawyers on their nominating commissions. Additionally, most states either require that their nominating commissions are composed of an equal number of lawyers and non-lawyers or require (or allow) non-lawyers to be the majority.
Second, the belief that the attorneys on nominating commissions vote based on self-interest is not supported by any evidence. Rather, it is simply a product of stereotypical conceptions of attorneys.
If one looks at the work the attorney and non-attorney members do on any given nominating commission, they will surely see that they nominate judges based upon merit. For example, the Supreme Court Nominating Commission in Kansas collects detailed applications, professional references and writing samples from candidates. The commissioners review all of this material and then conduct exhaustive background checks and interviews. It is only then that they make their decision on who they want to nominate.
The process is similar in every other state that uses merit selection. And regardless of where you look, you will find that the commissions are made up of dedicated members who are willing to make personal sacrifices to fulfill their duties.
For example, members of the former Tennessee Judicial Nominating Commission would sometimes drive up to fourteen hours round-trip just to interview a candidate. Additionally, they would sacrifice family time, put their own work on hold, and use their vacation time from their regular employment to attend the unpaid Commission meetings. They did all this because they understood how important their work was.
If everyone was informed about the composition of nominating commissions, what type of work they do, and how hard the commissioners work, it is likely that very few people would claim that the commissions are just a bunch of “elite attorneys” choosing judges out of self-interest.