Politics of Merit Selection, The

Abstract

In this Article, I undertake an evaluation of a method of judicial selection in use in many states that is known as merit selection. The merit system is distinctive from the other systems of judicial selection in use today in the powerful role it accords lawyers and, in particular, state bar associations. Proponents of the merit system contend that it is superior to the other forms of judicial selection - elections or appointment by elected officials - because state bar associations are more likely to select judges on the basis of merit and less likely to select judges on the basis of politics than are voters or elected officials. In this Article, I explain why I believe these claims are overstated. In Part II of this Article, I explain the origins and nature of the merit systems used in the United States. In Part III, I examine the claim that merit systems remove politics from the judiciary, showing how Legal Realism casts doubt on this claim. In Part IV, I explore how the political views of the bar might differ from those of the public at large, and I ask whether the proponents of merit selection can justify a system that produces judges who reflect the ideological preferences of the bar rather than the preferences of the electorate