I tend to be skeptical of structural changes that are designed to remove politics from fundamentally political undertakings. I doubt. for example, that nonpartisan redistricting will really be nonpartisan. I know that so called "merit based" selection schemes for judges simply drive the politics underground.
The reason is simple. When a decision has political implications,
politics, like water, finds its own level. While the selection of lower
court judges is not politically salient, the selection of justices for a
state supreme court usually is. These courts are law developing
tribunals of last resort. They decide issues that are unsettled.
Many of these issues do not have ideological or political
implications, but some - very important - cases do. While it is wrong to
think that the justices who decide these politically charged cases
simply do whatever they want or vote as partisans, their world view will
affect how they approach questions to which the legal answer is
unclear. It is natural for liberals and conservatives to seek
This turns merit selection into a political process. If you don't
believe me, consider the case of North Carolina. Out going Democratic
Governor Beverly Perdue -she who spoke of suspending elections so that
things could get done - posed for holy pictures a while back when she
signed and executive order setting up a Judicial Nominating Commission "to take the politics out of appointing judges in North Carolina." The Commission would recommend candidates for judicial vacancies. Governor Perdue would select from one of these recommended candidate.
There is now a vacancy on the state Supreme Court but there is also a problem. The Commission cannot get its work done before Governor Perdue leaves office next month and Republican Pat McCrory takes over. If she relies on the Commission, she will not get to appoint North Carolina's next justice.
So she is scrapping the Commission although she urges future Governors to use it.
the politics back in judicial selection of North Carolina? They never
left. It's fine to have a panel of lawyers make recommendations to the
Governor. We do that here. But that doesn't make the process of
selecting judges - particularly for a state Supreme Court -
Governor Perdue has just demonstrated the obvious.
a certain level, I don't blame her. She wants to use what remaining
power she has to appoint a justice whose judicial philosophy she
supports. So would I. But I would prefer that she not pretend otherwise
Cross posted at Purple Wisconsin