The Wisconsin State Journal has endorsed merit selection for the judiciary in Wisconsin. I am a merit selection skeptic, particularly when it comes to a court of last resort which will be called upon to resolve cases of first impression, make common law and decide matters of constitutional interpretation.
There's a huge irony in the move toward merit selection and appointment in Wisconsin. While there are certainly people who tend to a more conservative view of the judiciary who favor some form of appointment, the energy behind the movement - both in Wisconsin and nationally - is from those who tend to have a more liberal view of the judicial function. By this I mean those who tend to reject many of the traditional restraints on the judicial function, be they attention to the original intent of the drafters of law, or a strict adherence to its text. These folks are more likely to see the judiciary as a branch that empowers those who they believe to be unfairly disadvantaged in the political process. This does not require adherence to the letter and intent of the law as much as it requires the willingness and judgment to interpret it in a way that is thought to correct the imbalances that infect the political process. Thus, Senator Obama's most important qualification for the judicial appoinments is that someone "knows what its like to be" certain people that he believes are disadvantaged.
This view is, of course, counter-majoritarian so it as at odds with the very idea of elections. The irony is that it seeks to appropriate the judicial philosophy of those with a more conservative view of the courts, i.e., those who are more willing to accept traditional constraints on the judicial role. Judging, in this more conservative view, might also be countermajoritarian in that it insists on enforcement of the law as the legislature and executive - or framers of the constitution - have enacted it without regard to public sentiment about its enforcement in the case before it. But it is, at the end of the day, a rather modest counter-majoritarianism. It also rests in tension with the idea of elections but is not anchored in a belief that courts ought to react against and shape what political majorities have done. To the contrary, it is concerned with discerning what they have done and holding them to it. We wouldn't have to have a free speech guarantee in the Constitution but we do, so it must be interpreted and enforced. We could have a right to privacy encompassing the right to abortion in our Constitution, but we don't so we ought not to act as if we do.
This is what Chief Justice Roberts meant when he called judges "referees." Those who take a more expansive role of the judiciary are very critical of that analogy. In their view, judges cannot and should not be referees. They say it's an oversimpflication. (In part, it is, but mostly it's not.)
But when it comes time to oppose judicial elections, the analogy comes in handy so the very folks who tend to reject it jurisprudentially, embrace it politically. We need good referees and we certainly wouldn't let the players and fans vote on who they should be. What matters is that they are fair and that they are good.
But the problem is that, if there are folks and existing and potential jurists who don't believe that judges are referees, then competence is no longer the only thing we need to consider. Fairness becomes less important because these folks reject, in significant ways, the very concept of neutrality. In this world - where there are significant differences on what judges ought to be doing - saying that one candidate is more qualified than another - if by qualification we mean legal acumen -is only one relevant consideration. Nino Scalia and Ruth Bader Ginsburg are both very talented lawyers. If I gave them a Civ Pro exam, they'd ace it and critique my stupid questions. But we certainly should not be indifferent to the choice between them or pretend that it can be resolved by resort to "qualifications."
A sophisticated defense of merit selection is to say that it will result only in consideration of the Scalias and Ginsburgs. I wish that were so. Experience suggests otherwise. In further irony, the State Journal offers as a virtue of a potential merit selection plan that the commission that will screen for merit might be made up of a majority of nonlawyers. But if merit consists of legal acumen, only lawyers are able to evaluate that.