Fair Courts Litigation Task Force

Merit Selection of Judges

Many states have adopted merit selection systems, in which potential judges apply to a nominating panel that conducts interviews, reviews candidates’ records, and sends a list of the most qualified finalists to the governor, who appoints one of them to the bench.  These systems are often based on the "Missouri Plan," developed by Missouri in the 1940s and subsequently adopted in whole or in part by more than 30 states.  Typically, a number of the members of the nominating commission are elected by licensed attorneys in the state, while others are selected by some combination of the governor and state legislature.  In many merit selection states, opponents of court reform are waging aggressive campaigns to overturn the systems, seeking to undercut the independence of state courts.  One aspect of this campaign is litigation seeking to strike down merit selection as an unconstitutional violation of the one person one vote principle established by the United States Supreme Court in Reynolds v. Sims.  These attacks on merit selection have thus far been rejected by the Eighth, Ninth, and Tenth Circuits.

Kirk v. Carpeneti, 623 F.3d 889 (9th Cir. 2010): The Ninth Circuit affirmed a district court's decision upholding the constitutionality of Alaska's Judicial Council, which consists of the Chief Justice of the Alaska Supreme Court, three citizens appointed by the Governor and confirmed by the legislature, and three attorneys appointed by the Board of Governors of the Alaska Bar Association.  The court emphasized the difference between the judiciary and the political branches of government: "This case involved neither the political branches, nor the direct election of the members of any branch of government.  The federal courts have recognized no constitutional principle that supports Plaintiffs' contention that all participants in the judicial selection process must be either popularly elected or appointed by a popularly elected official, and have rejected all such assertions."

Carlson v. Wiggins, 675 F.3d 1134 (8th Cir. 2012); cert. denied, 133 S. Ct. 312:  The Eighth Circuit affirmed a district court's decision that Iowa's merit selection program did not violate the Equal Protection Clause of the Fourteenth Amendment.  The court concluded that the nominating commission did not exercise general governmental functions, and that the appointment power resided solely with the governor.  The court also concluded that the  "special limited purpose" of the nominating commission-selecting the most qualified candidates for judicial appointments for the governor's consideration-disproportionately impacts a definable group of constituents-the members of the Iowa bar-over other voters in the state.  Thus, under Supreme Court precedent, the system need only satisfy rational basis review.  The Eighth Circuit concluded that "Iowa's legitimate interest in selecting the most qualified judges encompasses an interest in having the views and expertise of Iowa's attorneys represented on the Commission to assist with this selection, [and that] the State's decision to allow members of the Iowa Bar the opportunity to elect seven of their peers to serve as the Commission's attorney members bears a rational relationship to this legitimate interest."

Dool v. Burke, 2012 WL 4017118 (10th Cir. Sep. 13, 2012); cert. denied, 133 S. Ct. 992: The Tenth Circuit affirmed a district court's decision that Kansas' merit selection program did not violate the Equal Protection Clause of the Fourteenth Amendment.  Concurring with the per curiam decision, Judge O'Brien emphasized that the independent nominating commission served an important separation-of-powers function insulating the judiciary from political pressure by the executive branch.  Judge O'Brien also noted that the commission was created in response to widespread public outrage in 1956 after the sitting governor, who was defeated in his party's primary election, engineered to have himself appointed to the court shortly before the end of his term. 

Dobson v. Arizona - Article VI of the Arizona Constitution created the Commission on Appellate Court Appointments and requires the Commission to nominate “not less than three” candidates to the governor in order to fill judicial vacancies. In 2012, the legislature placed a referendum measure on the ballot to amend this article with Proposition 115, which would have increased the minimum number of candidates the Commission was required to nominate. Over 70 percent of Arizona voters rejected this measure.

In its recently completed session, the legislature passed House Bill 2600, “requiring the Commission to submit at least five candidates to the Governor, but provides that on a two-thirds vote, the Commission may reject a candidate and ‘submit fewer than five names.’”  This measure was signed into law by Governor Brewer, and the members of the Commission are challenging the statute in this action, arguing that the law is an end run around the requirement that voters approve constitutional changes, and that the law alters the separation of powers in granting the governor more power of selecting judges.  The Brennan Center for Justice and Justice at Stake submitted an amicus curiae brief in this action.

On September 13, 2013, the Arizona Supreme Court agreed with petitioners' claims and struck down the law in its entirety.  In doing so, the court adopted in its entirety an argument the Fair Courts Litigation Task Force made in our brief.  In particular, the court agreed with our position that the legislative changes (in the court’s words) worked “a fundamental change in the constitutionally prescribed balance of power between the Commission and the governor.”  They also adopted our argument that the statute unconstitutionally infringed on the Supreme Court’s authority to adopt the rules of procedure for the commission.

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