By Bob Davidow
In the article entitled “State Supreme Court Justices: ‘We Have to Rule the Right Way, Even if it Means Losing the Next Election,’” (Oakland County Legal News, Feb. 4) the three justices presuppose that judges will be selected through popular election or appointment by the governor. There are, however, other ways to select judges. As it happens, I have published three articles on judicial selection, the latest of which is “Judicial Selection In Michigan: A Fresh Approach,” 58 Wayne L. Rev. 313 (2012). My proposals involve neither gubernatorial appointment nor popular election.
We must first acknowledge that the role of the judge is primarily to decide individual cases on the basis of what has already transpired. The judicial role is thus different from that of the legislator. Given that difference, the method of selection of legislators may not be an appropriate one for judges. Also, the judge may have to enforce constitutional limits on legislative and executive action — an anti-majoritarian function.
What is the goal of judicial selection? My own view is that judicial selection should involve a search for judges of quality who are broadly representative of the citizenry. Quality seems an obvious goal, though, admittedly, it’s not a self-defining term. Presumably, it should include basic intelligence, proper training, and open-mindedness. Representativeness, or diversity, should be a goal, by analogy to the jury (to which I shall return shortly). I am not alone in believing that the achievement of diversity is an important goal. Justice Sotomayor, for example, has spoken of the need to have a more diverse judiciary.
The problem with judicial elections is that they provide no assurance of either quality or diversity. There are, of course, competent judges in Michigan, but, in my opinion, they have become judges despite the need to run for office, not because of it. The need to raise money discourages some qualified persons from actively seeking judgeships, and, in any event, the electorate is likely to know very little about the candidates. Solicitation of contributions can often give the appearance of corruption.
Regarding gubernatorial appointment, the governor in Michigan is entirely unconstrained in making appointments necessitated by death or retirement, and is likely to appoint lawyers who share the governor’s beliefs, attitudes, and values; hence, appointment is not a way to promote diversity. There is also no institutional guarantee of quality.
The first of my four proposals, as described in my first article on the subject, calls for the creation of a nominating commission consisting of the following: “two lawyers, elected by the State Bar Association; six persons elected by proportional representation, of whom one must be a lawyer and five must be nonlawyers; two judges, elected by all judges of courts of record in the state; one full-time member of a faculty of a law school in the state accredited by the American Bar Association, elected by all full-time members of the law school faculties of accredited law schools in the state; and one full-time member of a nonlawyer faculty of an accredited university within the state, elected by all nonlawyer full-time professors in accredited universities in the state.”
Each member of the commission would nominate one candidate. Any one commissioner could veto the choice of another commissioner. Final selection would be by lot from among the nominees. Here again is the analogy to the jury, which is not elected or appointed and which is intended to broadly represent the community.
The commission is designed to be as diverse as possible — hence, the inclusion of members of the public elected through proportional representation.
Selection by lot is not an entirely novel concept. Officials with judicial duties were selected by lot in Athens in the 5th and 4th centuries B.C.E.
Regarding the giving of a veto power to each member of the commission, my assumption is that each commissioner would, in effect, say to each other commissioner, “I will refrain from vetoing your choice of a well-qualified candidate if you will refrain from vetoing my choice of a well-qualified candidate.”
The presence of academics is not entirely unprecedented. In at least two states a law school faculty member is a member of a merit selection nominating commission. (One of the problems with current forms of merit selection is that the governor, the state’s chief politician, makes the final choice among candidates put forward by the nominating commission. The governor is likely to choose the one candidate whose beliefs, attitudes, and values most closely resemble those of the governor.)
My modest hope in offering proposals for a different form of judicial selection is that discussions of judicial selection will not be limited to the arguments between those who support popular election and those who
support some form of gubernatorial appointment. Realistically, I don’t expect many to accept my ideas, at least at present. I remember once when I lived in Texas I had a conversation with some lawyers about the
Texas system of partisan election of judges. They all agreed that it was a terrible system, but they didn’t want to change it -- perhaps another instance of “the devil you know.” Possibly that’s the way many Michigan lawyers feel. Having spent 43 years away from Michigan, however, and having practiced criminal law principally in the military, in Florida, and in Illinois, I’m less committed to the status quo.
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Bob Davidow, a University of Michigan Law School graduate, is a retired criminal defense lawyer who has also taught law at several universities. He lives in Ann Arbor.
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