3. “Fishing Lessons Across the Atlantic: Where is the Spot Between ‘Elitism’ and Politics?” by Jeffrey D. Jackson

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October 29th, 2013

Introduction

Thank you to the Fordham Urban Law Journal for allowing me to join in this discussion of comparative judicial selection mechanisms.  Thank you as well to Judith Maute and Monica Fennell for allowing me to shoehorn my thoughts into their exchange.  I would like to address a slightly different thought relating to judicial diversity: the concept of “elitism” in judicial selections systems.  I think it is interesting that the new appointment process in the United Kingdom is, to a large extent, a “Missouri Plan” sort of commission system and that it was instituted in order to reduce “elitism.”  I find this intriguing because many critics of the commission system here in the United States argue that the commission system itself is elitist, and that one way to make judicial selection more diverse is for states to return to a system of political appointment with some sort of legislative confirmation.  To some extent, this is not as odd as it sounds.  After all, the judicial systems in the United Kingdom and the United States are not the same, and do not come at the problem from the same angle.  The United Kingdom is moving from a system with almost no democratic legitimacy, while those states in the United States adopted a commission system to move from a system that was perceived as having too much democratic legitimacy.  Nevertheless, the two systems are similar enough that both might have lessons to learn from each other.  It could be that through a study of the various judicial selection commissions in both the United States and the United Kingdom, we can come up with a system that is closer to the ideal than what we have now and find some remedies for the concerns of elitism on both sides of the Atlantic.

The first order of the day, of course, is to understand what judicial systems are trying to accomplish and why diversity is important in reaching that goal.  The sought-after diversity that Professor Maute identifies as underlying the United Kingdom’s reforms is that of “fair reflection,” wherein the composition of the judiciary reflects the composition of the underlying society.[1]  I have elsewhere identified this principle as one of “representativeness.”[2]  Representativeness in a judicial system promotes legitimacy, as it gives a sense that all people, not just the rich or powerful, have a chance to be judges and to receive justice from a court.[3]  More importantly, however, a diversity of life experiences and viewpoints promotes a better vision of justice.[4]  A diversity of experiences, as Justice Ruth Bader Ginsburg notes, makes a court better informed in “evaluating what is at stake and the impact of its judgments” than it would be if all of its justices came from the same background.[5]  Justice Ginsburg later demonstrated the importance of diversity in a case involving a thirteen year-old girl who had been subjected to a strip search because school officials wrongly believed she was hiding drugs in her undergarments.[6]  Although many of the male justices seemed skeptical of her claim that she was humiliated by the search, Justice Ginsburg reportedly persuaded them otherwise.[7]

Representativeness does not just refer to the more obvious representative classes such as race or gender.  Diversity in religion, childhood background, geography and type of practice experience can all contribute to perspectives on judicial decisions.[8]  The best types of selection systems would encourage qualified persons of all backgrounds to compete for judicial positions and would support their appointment.

I.  The Commission System: Is There an American Problem of Elitism?

A number of commentators have questioned how well the commission-based selection systems in the United States are advancing this principle.  Critics argue that the commission systems used by many states, such as those that follow the Missouri Plan are in fact themselves elitist in that they give the legal profession in the state disproportionate influence in the judicial selection process, and do not have the requisite democratic checks on that influence.[9]  Of particular concern to these critics are states such as Arizona, Colorado, Florida, Indiana, Missouri, Oklahoma and my home state of Kansas, where the more or less “traditional” version of the Missouri Plan is used in selecting judges in some or all of the courts.[10]  Under this form of selection process, a judicial nominating commission composed of both lawyers and non-lawyers screens the applicant for a judicial vacancy and recommends a limited number of candidates for selection by the governor of the state.[11]  The governor then selects only from this pool of candidates.[12]

The source of the ire of many critics lies in the number of lawyers on the judicial nominating commission and the role of the state bar in selecting these lawyers.  States vary on the proportion of lawyers and non-lawyers on their commissions, and in the role of the state bar in selecting those members.  In Kansas, for instance, the nine-member commission is composed of four non-lawyers appointed by the governor and five lawyers selected from members of the bar.[13]  Florida’s nine-member commission has four lawyers appointed by the governor from nominees submitted by the bar association, and five other members, at least two of which must be lawyers, appointed by the governor on his or her own initiative.[14]

The main argument that these commission systems are elitist is that they give lawyers, particularly those lawyers who are members of the state bar, a privileged position in the selection of judges.[15]  Rather than reflecting democratic values, the power given to these lawyer-members is the power to implant the politics of the “lawyer class” on the judiciary.[16]

The charges levied against the commission system are not without some merit.  As I have stated before, one of the most pressing problems for anyone seeking to justify a commission system such as the one in Kansas is its lack of connection to the democratic process.[17]  Because membership in a bar association has no connection to the democratic function, and the governor must pick from the nominees of the commission, the system is open to charges that it lacks democratic legitimacy.[18]  Such problems are exacerbated in a system such as the one in Kansas, where the lawyer-members outnumber the non-lawyer-members.[19]

Nevertheless, such a system can be defended.  First, the participation, and indeed the mandating, of lawyers on the commission has value.  The initial reasoning behind having judges and lawyers on the nominating commissions was that they would have better knowledge of the legal skills of the candidates than the average citizen.[20]  It was also thought that lawyers and judges would be more concerned with the administration of justice, and thus seek to put only qualified individuals on the bench.[21]  Each of these reasons has been subject to the criticism that lawyers and judges are actually more motivated by their own socioeconomic interests than the interests of justice and that lawyers and judges have very little knowledge of the legal skills of candidates in today’s far-flung and specialized legal practice.[22]  However, lawyers and judges do have a specialized knowledge and understanding of the role that judges play in the legal system and the attributes that are necessary for the position.[23]  They also have better access to a network of information regarding the qualifications of the candidates.[24]

Some critics argue that the very idea that “lawyers are better than their fellow citizens at identifying who will be a good judge . . . is openly elitist.”[25]  However, lawyers are better than the general public at identifying good judicial candidates.  This is not because lawyers are smarter than others or better judges of character.  It is not because lawyers are more learned, or possess some special “judge-sensing” radar.  Rather, it is simply a function of the better opportunity afforded the lawyers to gain information through their day-to-day immersion in the processes of the legal profession.  The average citizen has very little interaction with the judicial system and less access to information regarding the legal skills, work habits, and disposition of the lawyers who work in it.  While that citizen may know some lawyers, he or she is unlikely to have observed them at their work.  Further, the average citizen probably has little context for how those skills, habits and disposition play out with regard to the duties of a judge.  Unlike popular representations in movies, books and television, judges do not spend the majority of their time making pronouncements regarding the law on controversial subjects.  Instead, the day-to-day work of a judge is much more mundane, and requires no little skill in applying technical parts of the law to such matters as motions to compel discovery, motions for continuances, and disputes over the qualifications of witnesses.  As with any other profession, the persons who are in the best position to have access to the best information, and to contextualize that information, are those who practice in it.

The next question might be that even if the members of the practicing bar are better able to recognize good candidates, this is not itself a justification for the role of the bar in determining the makeup of the committee.  Some might argue that it would be just as valid if the committee were appointed by the governor or by some other politically representative party.  Why should the bar have the right to determine the lawyer members?

The answer, I believe, has much to do with what we think the function of judges is.  Judges occupy a unique position in our form of government.  Unlike other government officials, who are expected to represent the views of the electorate or at least to reflect those views, judges are expected not to do so; rather, they are expected to enforce and interpret the law on behalf of all citizens in order to do justice and “secure a steady, upright, and impartial administration of the laws.”[26]  It has been said that “[a] judge has no constituency except the unenfranchised lady with the blindfold and scales, no platform except equal and impartial justice under the law.”[27]  While this does not mean that justices should be selected without regard to democratic legitimacy, it does recognize the special duties that judges perform and suggests that we should not think of them in quite the same way we think of other actors in the political system.  Because we expect judges to be neutral, or at least to act neutrally with regard to the political system, there is justification for having their selection process be less subject to the whims of partisan politics than that of other elected officials.  The strength of the Missouri Plan commission-based system is not its claim to democratic legitimacy; rather, its strength is its diffusion of the appointment power between political and professional bodies, with an aim toward taking politics out of the judicial selection process.

It must be remembered that many of the states that adopted the Missouri Plan did so in an effort to move away from the partisan politics engendered by judicial election, which had become “en vogue” in the middle to late 1800s.[28]  This move toward judicial elections had been triggered by perceived “elitism” of the appointment system: the perception that, under the appointment system, “‘judges were being appointed too frequently from the ranks of the wealthy and the privileged.’”[29]  Although the move to popular elections helped open up the diversity of the judiciary, it brought with it another form of domination: that of the political machine.[30]

Missouri adopted the original version of the commission system in response to the control of the judiciary exercised by political machines.[31]  By that time, the consequences of failure to please political bosses had become clear: a judge on the Missouri Supreme Court was re-elected on only two occasions between 1918 and 1941.[32]  Kansas similarly adopted its version of the commission system following the infamous “triple play” of 1956, wherein the sitting Governor, who had been defeated in the primary election, resigned 11 days before the end of his tenure so that the Lieutenant Governor could assume the office to appoint him to the Kansas Supreme Court in place of the retiring Chief Justice.[33]

The commission systems are designed to balance the input from political and professional sectors.  The people have input through the lay members appointed by the governor.  On the other side, the members of the legal profession provide input through the lawyer members elected by members of the bar.  This reduces the possibility that the commission might be “captured” by any interest group.[34]

But what of the argument that such commission systems are vulnerable to capture by the lawyer elite that make up part of the nominating commission?  This might in fact be a problem if the lawyer members of the commission were in fact selected by a machine-like “organized bar,” (assuming that such a thing is not an oxymoron).  However, in real life, no such machine exists.  In most commission-based systems, the lawyer members are selected by members of the bar, i.e. practicing lawyers in the state.  Contrary to the intimations of some critics, the state bar association plays no part.[35]  Rather, the members are elected by lawyers in their geographic area, which helps to ensure a cross-section of members across a given state.  Of course, this still leaves the system vulnerable to charges that it replaces the ideological preferences of the electorate with the ideological preferences of the bar.[36]  However, this presupposes that members of the bar have united ideological preferences solely due to their profession as lawyers – a questionable assumption at best.

All of this is by way of saying that, while the commission system as practiced in the United States has been called elitist by critics, upon greater scrutiny it appears that most of those criticisms have much less force than they first appear to.  That does not mean, however, that it is a perfect system.  There may be lessons to be learned from other selection processes to help tweak the commission system to reach closer to the ideal.

II. But Wait, Weren’t We Supposed to Talk About the U.K?  Bringing the Circle Back Around.

So what does this have to do with the United Kingdom’s reforms?  As I noted above, the United Kingdom is coming at the problem of judicial elitism from the opposite direction.  Where the commission system in the United States arose because of dissatisfaction with the highly democratic judicial election system, the U.K. reforms arose because of dissatisfaction with a highly undemocratic system based on “secret soundings” and selection by the Lord Chancellor.[37]  This is almost precisely the same sort of system that led to judicial elections in the United States.  However, the United Kingdom has apparently skipped that process and gone right to the idea of the commission system.  The Judicial Appointments Commission (JAC), however, has some features that are different from those of judicial nominating commissions in the United States, and that may serve as models for reform here as well.

One of the significant differences is that, in the JAC, laypersons must be in the voting majority: at least seven of the fifteen members must not have practiced law or held judicial office.[38]  This is a contrast with the majority of the states with judicial nominating commissions who tend to favor an equal or slightly higher representation of lawyers.  It might be that a slight reduction of the number of lawyer members in a nominating committee could retain many of the benefits of having lawyers on the commission, while at the same time reducing the elitism charges that come from having a commission where the majority of the members are lawyers.

Another interesting feature is that the lay members are selected by selection panels created by the Lord Chancellor.[39]  This is also in contrast to many of the judicial nominating commissions in the United States, where the members are simply selected by the governor of the state.  This more business-like process might be of benefit in the United States system to reduce the perception that the non-lawyer members of the nominating commission are simply political pawns of the governor who appoints them.

On the other hand, there may also be lessons that the United Kingdom can learn from the experience of judicial nominating commissions here in the States.  Three of the members of the JAC are selected by the Judges’ Council, a body that represents the entire judiciary.[40]  Although not close to a majority, the fact that they are appointed by an interested body might draw some of the same criticisms that the perceived presence of the organized bar has here in the United States.

Further, the make-up of the commission is only one feature of the reforms in the United Kingdom that have potential for use in the United States.  Another notable feature is the selection process employed by the JAC, which for lower court appointments requires that the JAC consult with the Lord Chief Justice and a person who previously held the office to be filled, and that a written report of those consultations go to the Lord Chancellor.[41]  The increase in transparency provided by written reports might be a benefit to the commission-based systems here as well.

Yet another interesting feature of the U.K. system, that it would be wise to keep an eye on, is the various recruitment tools used to identify possible candidates.[42]  If these turn out to be successful in recruiting a diverse applicant pool, they might also be adapted for use by other commission-based systems.

Conclusion

As Professor Maute noted in her Reply to Monica Fennell, it is probably too early in the process for those of us in the U.S. to assess the effectiveness of the U.K. reforms.  There simply has not been enough time for the reforms to have a great impact, or to determine whether various aspects of the new system are helping or impeding reform.  Nevertheless, it is something that bears watching in the future.

 


        *  Professor of Law, Washburn University School of Law

Φ  Suggested Citation:  Jeffrey D. Jackson, Fishing Lessons Across the Atlantic: Where is the Spot Between “Elitism” and Politics?, 40 Fordham Urb. L.J. City Square 57 (2013), http://urbanlawjournal.com/fishing-lessons/.

[1].  See Judith L. Maute, English Reforms to Judicial Selection: Comparative Lessons for American States?, 34 Fordham Urb. L.J. 387, 406-07 (2007).

        [2].  See Jeffrey D. Jackson, Beyond Quality: First Principles in Judicial Selection and Their Application to a Commission-Based Selection System, 34 Fordham Urb. L.J. 125, 141 (2007).

        [3].  See id.; see also Joy Milligan, Pluralism in America: Why Judicial Diversity Improves Legal Decisions About Political Morality, 81 N.Y.U. L. Rev. 1206, 1235-46 (2006); Angela Onwuachi-Willig, Representative Government, Representative Court?  The Supreme Court as a Representative Body, 90 Minn. L. Rev. 1252, 1263-65 (2006); Leo M. Romero, Enhancing Diversity in an Appointive System of Selecting Judges, 34 Fordham Urb. L.J. 485, 487-90 (2007).

        [4].  See Jackson, supra note 2, at 142 (arguing that “diversity should go beyond what is usually meant by the term, to include not only diversity with regard to race and gender, but also diversity in religion, background, geography, and type of practice.”).

        [5].  Ruth Bader Ginsburg, The Supreme Court: A Place for Women, 32 Sw. U. L. Rev. 189, 190 (2003).

        [6].  See Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364 (2009).

        [7].  See Joan Biskupic, Ginsburg: The Court Needs Another Woman, USA Today, May 6, 2009, available at http://usatoday30.usatoday.com/news/washington/
judicial/2009-05-05-ruthginsburg_N.htm (last visited Mar. 1, 2012).  Ginsburg noted that “[the male justices] had never been a 13-year-old old girl . . . .  It’s a very sensitive age for a girl.  I didn’t think that my colleagues, some of them, quite understood.” Id.

        [8].  See Onwuachi-Willig, supra note 3, at 1263-65.

        [9].  See, e.g., Stephen J. Ware, The Missouri Plan in National Perspective, 74 Mo. L. Rev. 751, 755-64 (discussing “Levels of Elitism” in commission-based selection systems).

      [10].  See id. at 758-64 (labeling the Missouri Plan states as those with the “Most Elitism”).  The other Missouri Plan states identified by Ware are Alaska, Iowa, Nebraska, South Dakota, Tennessee, and Wyoming. Id. at 759 n. 34.

      [11].  See Sari S. Escovitz, Judicial Selection and Tenure 9 (1975); Sandra Day O’Connor, The Essentials and Expendables of the Missouri Plan, 74 Mo. L. Rev. 479, 486 (2009).

      [12].  See O’Connor, supra note 11, at 486; see also Escovitz, supra note 11, at 9.

      [13].  Kan. Const. art. 3, § 5(e).

      [14].  Fla. Const. art. V, § 11(d).

      [15].  See Ware, supra note 9, at 755.

      [16].  See Kelly Armitage, Denial Ain’t Just a River in Egypt: A Thorough Review of Judicial Elections, Merit Selection and the Role of State Judges in Society, 29 Cap. U. L. Rev. 625, 656 (2002) (arguing that “trial lawyers and their acolytes” have traditionally controlled merit selection committees); Brian T. Fitzpatrick, The Politics of Merit Selection, 74 Mo. L. Rev. 675, 690-702 (2009) (hypothesizing that lawyers tend to be more liberal than other members of the public).

      [17].  See Jackson, supra note 2, at 153.

      [18].  Id.

      [19].  Id.

      [20].  See Albert M. Kales, Unpopular Government in the United States 238-39 (1914); Editorial, The Eligible Lists of Judicial Candidates, 11 J. Am. Judicature Soc’y 131, 132 (1928).

      [21].  See Kales, supra note 20, at 237-39; The Eligible Lists of Judicial Candidates, supra note 20, at 132.

      [22].  See Jackson, supra note 2, at 150-51 (addressing these criticisms).

      [23].  Id. at 151.

      [24].  Id. at 152.

      [25].  See Ware, supra note 9, at 755.

      [26].  The Federalist No. 78, at 380 (Alexander Hamilton) (Lawrence Goldman ed., 2008).

      [27].  Maurice Rosenberg, The Qualities of Justice – Are They Strainable?, 44 Tex. L. Rev. 1063, 1069 (1966).

      [28].  See Glenn R. Winters, Selection of Judges – An Historical Introduction, 44 Tex. L. Rev. 1081, 1083 (1966).

      [29].  See Laura Denvir Stith & Jeremy Root, The Missouri Nonpartisan Court Plan: The Least Political Method of Selecting High Quality Judges, 74 Mo. L. Rev. 711, 720-21 (2009) (quoting Ronnie L. White, former Chief Justice).

      [30].  Id. at 721.

      [31].  See O’Connor, supra note 11, at 484-85.

      [32].  Jay A. Daugherty, The Missouri Non-Partisan Court Plan: A Dinosaur on the Edge of Extinction or a Survivor in the Changing Socio-Legal Environment?, 62 Mo. L. Rev. 315, 318 (1997).

      [33].  See Brian J. Moline, Bill Smith: The Jurist as Politician, 57 J. Kan. B. Ass’n, 31, 34-35 (1988).

      [34].  See Stith & Root, supra note 29, at 727-34 (discussing how Missouri’s system is structured to avoid capture).

      [35].  Id. at 731-32 (discussing the commission-based system in Missouri).

      [36].  See, e.g., Fitzpatrick, supra note 16, at 676.

      [37].  See Maute, supra note 1, at 388-89.

      [38].  Id. at 412-13.

      [39].  Id. at 414.

      [40].  See Commissioners, Jud. Appointments Commission, http://jac.judiciary.
gov.uk/about-jac/157.htm (last visited Sept. 22, 2013); Judges’ Council, Judiciary of England and Wales, http://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-in-detail/how-the-judiciary-is-governed/judges-council (last visited Sept. 22, 2013).

      [41].  See Maute, supra note 1, at 417.

      [42].  Id. at 417-18.