Some judicial observers say Wisconsin ought to examine other states’ use of “merit selection” and “retention elections.” “Wisconsin has a theory of competitive elections for judges, but it doesn’t always happen that way,” says Seth Andersen, the director of the Hunter Center for Judicial Selection of the American Judicature Society (AJS). One reason for the paucity of traditional, contested elections for judges, he says, is that, “Judges don’t always conveniently retire or go on to another court, right at the end of their terms — which tend to be longer than most other public offices.”The result is that many times, there’s a vacancy mid-term, and an appointment must be made.Currently, four of the seven Wisconsin Supreme Court justices were appointed. From the AJS’s ongoing study of “initial method of accession” for state judges, it found in 1999 that 35 percent of Wisconsin’s judges at the appellate court level, and 48 percent at the circuit court level, were appointed. Moreover, of the seven “elective states” similar to Wisconsin, which hold nonpartisan elections with a nominating committee for interim appointments, the AJS found that overall, 60 percent of their judges were initially appointed. Andersen observes that Wisconsin is one of the few states that uses a nominating committee for appointments, made up of members who are appointed by the governor. Politics is very likely to enter into the deliberations of such a body.The AJS is trying to minimize the role of politics in judicial selection. It would like to see Wisconsin join the 34 other states across the nation that have some form of “merit selection” for judges.
The merits of merit selection
The AJS, according to its Web site, is a nonpartisan organization with a national membership of judges, lawyers, and laypeople interested in the administration of justice. The organization, dedicated to promoting the independence of the judiciary and to educating the public about the role of judges, has worked to promote merit selection of judges since the idea first took hold in Missouri in 1940. (Hence, many call merit selection and retention elections “the Missouri Plan.”)Merit selection is a system in which a nonpartisan commission of lawyers and nonlawyers locates, recruits, investigates and evaluates applicants for the judiciary. The commission then submits the names of the most highly qualified persons to the appointing person, usually the governor, for his or her final selection. For subsequent terms of office, a commission or the voters in an uncontested election evaluate the judges.The details vary widely from state to state. But by using merit selection, judges typically face the voters only after they have established judicial records.Under this kind of system, there’s no need for judges who can’t afford to finance their campaigns personally, to go to the attorneys who may eventually be appearing before them to ask for money. The AJS acknowledges that politics can’t be completely removed from the process.“But merit selection does minimize political influence by eliminating the need for candidates to raise funds, advertise and make political promises, all of which can compromise judicial independence,” the AJS site reads. The AJS, a 10,000-member organization, doesn’t “lobby” for merit selection, Andersen explains. But it does offer educational materials and model provisions on the topic. Meanwhile, Andersen has testified before four states’ task forces in the past two years about the AJS’ position, in addition to organizing and conducting the organization’s National Forum on Judicial Selection last month in Washington, D.C.It’s not that the AJS is against traditional, democratic elections in theory. But democracy requires an informed choice —which is difficult for even the best-intentioned voter, the site says.Andersen notes that in Chicago, where the AJS is based, frequently there will be elections where anywhere from 70-100 judges will be on the ballot.