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Statement of Gordon L. Doerfer, President, American Judicature Society

Regarding Recent Attacks on Merit Selection Systems

August 28, 2008 

In an editorial published on August 23, 2008, the Wall Street Journal claimed that judicial nominating commissions in Missouri and Florida were manipulating nominations for supreme court appointments. According to the Journal, bar-dominated nominating commissions in these states have stacked panels of nominees so that Republican governors are faced with difficult choices. The Journal attacks the Missouri commission for deliberately nominating what the Journal characterizes as two highly qualified, plaintiff-friendly candidates and a less qualified conservative candidate. It accuses the Florida commission of failing to recommend conservative candidates that reflect the diversity of the state. 

The criticism of the nominating commission in Missouri ignores the facts about how the lawyer members are actually chosen. In each of Missouri’s three appellate districts, all attorneys – not just plaintiffs’ attorneys – elect one member of the commission. The fourth lawyer member of the commission is a supreme court judge. As for Florida, the Journal fails to take into account that all nine members of the statewide nominating commission are appointed by the governor. Even though the Florida Bar submits recommendations for four of the lawyer positions on the commission, the governor may reject those names and call for alternative lists. 

A common theme among merit selection critics is that bar associations—and particularly plaintiffs’ attorneys—dominate judicial nominating commissions, even to the point of “rigging” the process to promote their own to the bench. Actually, corporate attorneys surveyed by the U.S. Chamber of Commerce’s Institute for Legal Reform uniformly prefer merit-selected courts to elected ones. Four of the top five states, as rated by U.S. business representatives in the 2008 State Liability Systems Ranking Study, are states that use merit selection to choose their judges. And, four of the five lowest-ranked states have partisan judicial elections. 

It is true that in some merit selection states, lawyers comprise a majority of the nominating commissions, but in only one of those states does the bar choose all of the members of that lawyer majority. Many states have a non-lawyer majority on their commissions. The composition and selection of nominating commissions is different in each state, as are the dynamics of the organized bar and its relationship to politicians. A blanket condemnation of judicial nominating commissions is irresponsible and misleading. It also demeans the work of the dedicated commissioners, all of whom serve without compensation, and calls into question the judgment of the many governors of all political parties who rely upon them to nominate the best qualified judges. 

Thirty-three states use merit selection to choose some or all of their judges. While there have been recent, isolated conflicts between governors and nominating commissions in a few of these states, the vast majority of merit selection systems operate without political controversy and promote public confidence in the judges who are selected.