Working Paper No. 10-59:
May Lawyers Be Given the Power to Elect Those Who Choose Our Judges? "Merit Selection" and Constitutional Law

Author(s):

Nelson Lund

Date Posted: November 2010

Availability:
Abstract (below) | Full text (most recent) on SSRN

Abstract:

“Missouri Plan” judicial selection mechanisms, which many states have adopted, seek to ensure that judges are appointed on the basis of “merit” rather than “politics.” These devices typically feature a judicial nominating commission comprising some lawyers and some lay members. The lay members are usually chosen by the governor, and the lawyers are frequently elected by the state bar.

Laws giving lawyers a legally preferred role in judicial selection sit very uneasily with basic tenets of republican government and political economy, though principles of federalism might counsel against federal interference with these state decisions about the structure of government. Whatever one thinks about those contending principles, however, the states are now governed by a well-settled body of equal protection doctrine that sharply limits their authority to hold elections from which some voters are excluded.

The inferior federal courts have uniformly upheld Missouri Plan devices against equal protection challenges, but all of the opinions have been poorly reasoned. This paper focuses on the Kansas version of merit selection, which gives lawyers a uniquely powerful role in selecting that state’s supreme court. The paper concludes that the Kansas system, which is now being challenged in federal court, is almost certainly unconstitutional under existing precedent.