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Nos. 26653 State of West Virginia ex rel. John Rist, III v. Honorable Cecil H. Underwood,
Governor of the State of West Virginia, and Robert S. Kiss
No. 26554 State of West Virginia ex rel. Richard A. Robb, W. Kent Carper, Rudolph L.
diTrapano, Roger D. Forman, Marvin W. Masters, Anthony J. Majestro,
American Civil Liberties Union of West Virginia, Thomas W. Pettit, Mark E.
Gaydos, Carl N. Frankovitch, Michael G. Simon, James C. Peterson, R.
Edison Hill, Harry G. Deitzler, Michael C. Bee and Norman Steenstra, Jr.
Starcher, C.J., concurring:I.
Pouring Gasoline on the Fire
I am truly upset by the dissenting opinion. I have never read an opinion by a
member of this Court that compared the opinion of fellow justices to a cruel act of human
slaughter, like the Japanese attack on the United States of America at Pearl Harbor. In fact,
I don't think I've ever seen such a vicious comparison in a judicial dissent -- anywhere.
Tension between this Court and the other branches of government is not new.
It is the Court's job to interpret the West Virginia Constitution, and almost every year or two,
we are required to stand in the way of some action by the executive or the Legislature
because their actions have violated the Constitution.
There are two ways to react to the sparks that inevitably fly when this Court
has to say no to an action by the executive or Legislature. One way is to try to understand
the proper role of the Court, and to keep the discussion on a respectful and civil plane.
The other way to react is to do what the dissent has done -- to pour gasoline on
It does not serve anyone for a judicial officer to invite dissension and open
warfare between the judicial branch of government and other branches. Nor does mean-
spirited ridicule of the majority's reasoning process serve any purpose. By exaggeration,
misstatement, and inflammatory rhetoric, the dissent fuels and fans the flames of discord.
This is just what our state does not need.
Getting the Job of Being A Judge
It is people who vote who ultimately give our court system its
legitimacy as an independent branch of government, protective of the
rights enshrined in our laws and Constitution.See footnote 1
When it comes to deciding who will get to hold the powerful job of being a
judge (or justice, or magistrate), we have used popular elections in West Virginia for more
than 125 years. This system has by all accounts has served us well.See footnote 2
Unlike some states, we don't ordinarily hand out our judging jobs in West
Virginia in a back-room swap, trade, or deal -- in the governor's office or in the Legislature
-- even to highly qualified candidates. We require our judges, before they get the job and
exercise power, to stand publicly for election, and to receive the direct approval of the
When there is a vacancy between judicial elections, we make an exception.
The governor selects the person who gets the job until the next election. Not surprisingly,
when this appointment exception to judicial selection kicks in, the role of the electorate is
diminished, and the role of the politicians is enhanced.See footnote 3
But there are some restrictions on who is eligible for such appointment to
office. In the case of a gubernatorial appointment to a judge's job (or any other public job),
our West Virginia Constitution -- and the United States Constitution, and the constitutions
of almost all other states -- say that legislators are ineligible for the job -- if the job was
created or the pay for the job was increased during the term that the appointment to the office
is to be made.
These constitutional limitations are Emoluments Clauses, or Legislative
Ineligibility Clauses. See John F. O'Connor, The Emoluments Clause: An Anti-Federalist
Intruder in a Federalist Constitution, 24 Hofstra L.Rev. 89, 91 n.2 (1995).
The legislative ineligibility clauses in our federal constitution and dozens of
state constitutions absolutely bar legislators from eligibility for offices that were created or
had the pay increased during the legislator's term. Most of these clauses make no exception
whatsoever for popular election to such an office. Somehow the dissent loses sight of this
This strict ineligibility for legislators is not a diabolical invention of this Court,
directed at Speaker Kiss. It is a central fixture of our American governmental system.
For example, in 1793, George Washington had to withdraw his nomination of
William Paterson to the United States Supreme Court because Paterson had been in the
Senate when the office of Associate Justice was created. Id. at 105. I suppose that according
to the dissent, President Washington was like Admiral Tojo!
West Virginia (and about nine other states) have in their constitutions some sort
of a popular election exception to the legislator ineligibility rule. Our state's popular
election exception, Article VI, Section 15 of the West Virginia Constitution, is the
constitutional clause that is at issue in the instant case.
To summarize, then, here is how a person gets the job of judge or justice in
(1) the general rule for deciding who gets the judging jobs in West Virginia is
this: the people decide, through popular elections;
(2) if there is a vacancy in a judicial office, there is an appointment exception
to the rule that the people decide;
(3) however, there is a constitutional rule that makes legislators ineligible to
hold any job during a particular term during which they were involved with creating or
improving the salary the job; and
(4) there is a popular election exception to this legislative ineligibility rule,
so that such a legislator may hold an office during a term in which he was involved in
creating the job or improving the salary of the job, if the people override the ineligibility
through an election, even during the particular term.
The Benefits of Incumbency
I have gained my judicial jobs through popular election on four occasions.
Twice (with the help of many people), I successfully stormed the castle from outside, as a
challenger and non-incumbent. Twice I have stood on the battlements of office as an
incumbent, and repelled the attempts of would-be evictors.
From this experience, I understand well the benefits of incumbency -- and I
might add, I earned that incumbency in elections.
Of course incumbency does not assure victory. But the significant weight that
being in office brings to a popular electoral contest undoubtedly makes incumbency a rich
asset and prize.
If -- to fill a judicial vacancy -- the leg up of incumbency must be awarded
to a person who has not earned that benefit in an election, then that benefit must be awarded
in adherence to the strictest possible reading of any applicable proscriptions and limitations.
Otherwise, our democratic system for judicial selection would be distorted and unfair.
The Error of the Dissent
The dissent does not take this approach -- quite to the contrary. The dissent
would allow the mere possibility of a future popular election to permit an otherwise ineligible
legislator to not only get a free ride on the horse of a powerful office, but also to grab the
coveted brass ring of incumbency -- all without first paying the fare of submitting to the
will of the people in a popular election -- and winning.
Under the dissent's laissez-faire approach to the constitutional language in
question, a legislator could enjoy an otherwise prohibited office for literally years, without
popular approval -- if an election was in some way forthcoming.See footnote 4
In short, the position that
the dissent advocates would gut the constitutional ineligibility of legislators to hold offices
that they have created or for which they have improved the pay.
The Majority Opinion is Correct
The majority in the instant case has staked out a position that strictly applies
the constitutional legislative ineligibility rule. The majority opinion is solid and well-
reasoned. The dissenting approach ignores both constitutional purpose and history.
There will always be those who cry politics in such a case -- whichever way
it goes. But the law is with the majority in the instant case. Accordingly, I concur with the
majority decision and opinion.
And, as a footnote, I would say that it is time to let the healing begin.
Choosing West Virginia's Judges
by Larry V. Starcher, Justice, West Virginia Supreme Court of AppealsSee footnote 5
[M]any months of reading opinions from the six states canvassed here
creates a strong subjective impression that a judicial vibrancy exists
in West Virginia and Pennsylvania that simply is not found in
Virginia and Rhode Island. As a general rule, the decisions from the
legislatively selected benches are laconic, prosaic, and sterile.
Contrariwise, those from the elected courts (especially West
Virginia's) are vigorous and often inspiring.
Daniel R. Pinello, The Impact of Judicial-Selection Method on State-Supreme-Court Policy:
Innovation, Reaction, and Atrophy 135, 140 n.31, Greenwood Press, 1995.
[T]he experience of most jurisdictions with merit selection plans has
not been the elimination of political considerations from judicial
selection, but the substitution of some kinds of political forces by
Phillip L. Dubois, Accountability, Independence and the Selection of State Judges: the Role of
Popular Judicial Elections, 40 S.W.L.J. 31, 33 (1986).
For more than 125 years, West Virginians have used open, competitive and partisan
elections to choose our judges -- as required by our Constitution.
Nevertheless, in recent years it has been suggested that by eliminating judicial
elections, and by adopting a purportedly non-political system of merit-based judicial
appointment, we would have better judges, and more dignity and respect for our judicial system.
There are at least two perspectives that may underlie such suggestions for changing
West Virginia's judicial selection process.
One perspective is the idealistic and unselfish desire to improve government for the
benefit of all people. I understand, respect and appreciate this perspective. In a world of competing
interest groups the sense of civic responsibility that leads people to disinterestedly work for good
government is all too rare. We all should try to bring this perspective to our professional lives.
I am writing this article primarily to address those who value and share this good
government perspective. It is my belief that with respect to our judiciary total appointment of our
judges is not the best way to achieve good government. Hopefully, readers will consider my points
with an open mind and perhaps be persuaded by my comments.
I would also note that, in my view, there is a second perspective that is associated
with calls for abolishing the popular election of judges. This second perspective is less idealistic,
and is more about power, pure and simple. This perspective reflects the desire of elites to shape,
orient, and control our legal system. I do not share this perspective.
Keeping these two perspectives in mind, I submit, for the reasons discussed below,
that it would be a serious mistake for West Virginians to change our present system for choosing
Fortunately for our state, I think the likelihood of such a change is nil.
I do not
believe that the citizens of Raleigh, Hardy, or Hancock counties, etc., are going to seriously
entertain the idea of letting a few lawyers and other political appointees have the major say in who
their local judge is -- or in who serves as the judges that hear appeals from those counties.
I thank my readers in advance for their attention. I also thank all those West
Virginians who participate in selecting our judges by casting ballots in our elections. It is people
who vote who ultimately give our court system its legitimacy as an independent branch of
government, protective of the rights enshrined in our laws and Constitution.
1. Competitive Electoral Judicial Selection is a Desirable and Time-Tested Democratic
There is a great deal of political science research, scholarly opinion, and just plain
common sense in support of choosing our judges in elections. Researchers agree that the competitive
election process results in just as able or qualified a judiciary as the appointment process.See footnote 6
Moreover, it is widely found that there are substantial social and political virtues
associated with the competitive election of judges.See footnote 7
These virtues include the accountabilitySee footnote 8
independenceSee footnote 9
and legitimacy of the judicial branch of government -- and the selection of persons
as judges who are involved in and attuned to their communities.See footnote 10
A competitively elected judiciary
has been said to result in a more well-rounded, responsive and enlightened bench.See footnote 11
is our general experience in West Virginia.See footnote 12
Importantly, competitive elections open the judicial selection process to new and
challenging people and ideas. Innovative and energetic self-starters who have not received the
establishment's blessing -- are able to compete for judicial positions.See footnote 13
Judges who come to office
in this independent fashion help insure a fair forum for citizens who come up against the powers
In summary, the advantages of competitive judicial elections are numerous and well-
documented. West Virginia is a better place because we have these advantages.
2. West Virginia Currently Has an Appropriate Balance of Electoral and Appointment Based Judicial Selection.
Most states in our Union, including West Virginia, rely upon some system of popular
elections to choose their judges.See footnote 14
However, in states that use elections, the appointment of judges
nevertheless plays a significant role in the judicial selection process.
This is because a substantial percentage of judges do not complete their full terms of
office. Career changes, financial issues, death, retirement, and disability all combine with long
judicial terms of office, to produce many vacancies during a judicial term.
Thus, on a regular basis, replacements for judges who do not complete their terms are
appointed to office. Many of these appointed judges run for office in the next election, with the
advantage of incumbency.
In West Virginia, appointment to the bench has been the beginning of some
distinguished judicial careers. As West Virginia State Bar President Elliot Hicks noted in a recent
article in the West Virginia Lawyer, appointment has opened the judiciary to under represented
groups like African-Americans and women.
My point is this: to have a balanced role for appointive judicial selection in West
Virginia no change is needed. We have such a role, we have had it for over 100 years, and it is
working. (See note 8.)
3. To Argue That Politics Can Be Removed from Judicial Selection Is Either to Be
Unrealistic, or to Be Concealing One's Own Political Agenda.
In 1801 John Marshall, rather than Judge Spencer Roane,
the distinguished Virginia
jurist for whom my home town and county were named, was appointed to the United States Supreme
Court. Why? Because Marshall had more political clout than Roane.
This statement should come as no surprise. The scholarly and professional consensus
is overwhelming that
the selection of judges (including all federal judges), whether by election or
by appointment, has always been political.
See footnote 15
, See footnote 16
Thus, the issue is not whether there will be politics in the judicial selection process,
for the selection of judges always has been and always will be political. The issue is: what sort of
politics? The politics of the few -- or the politics of the many?See footnote 17
I favor a politics that gives all citizens a direct voice in choosing judges -- in an open
and competitive marketplace. I disfavor a politics that gives the choice of judges to a select few,
behind closed doors.See footnote 18
I also believe in merit selection -- but with the merit of judicial candidates
being determined by the electorate rather than by a handful of the politically powerful.
I believe that my view is shared by most West Virginians. I doubt that West
Virginians would favor a system where our state judges are selected by a non-elective -- but
undoubtedly political -- process.
4. West Virginia's Judicial Election Campaign Finance Laws Represent a Fair and
Workable Compromise that Reflects Current American Political Philosophy.
The financial cost of running a competitive election campaign, especially state-wide,
is substantial. It frequently serves as the focal point for disfavoring the election of judges. However,
West Virginians are ahead of the curve in judicial campaign finance regulation. We limit and make
public campaign contributions in a way that a number of other states are just trying out. And
campaign finance committees insulate judicial candidates from fundraising.
I do favor reducing political campaign costs -- for example, by providing free or low-
cost air time to candidates. But the issues of campaign costs and financing are distinct and different
from the issue of judicial selection methods. Campaign finance issues should not be used as a
smokescreen for depriving West Virginians of the right to choose judges in competitive popular
5. 36 Hours on the Campaign Trail Or What Makes A Good Judge?
The following notes, taken from my campaign experience, reflect the grass-roots
realities of the judicial election process.
Wednesday, early April, 1996. Awake 6:00 a.m., leave house in
Morgantown at 6:30 a.m., pick up traveling partner Ron Kelly. We
head for Wheeling, about eighty miles on I-79. Arrive Wheeling
around 8:00 a.m. Leave requested campaign signs and brochures in
Electrical Workers and Carpenters' Union doorways. Drive to
Laborers' Union office, meet with local president, leave materials.
Then drop off materials at two lawyers' offices. Drive to Weirton
and meet with Steelworkers' Union board. Noon -- lunch at Nick's
Village, local political tavern. 1:00 p.m., drive to New Cumberland.
Visit magistrate and judicial offices. Stop and shake hands at
3:00 p.m., head for Franklin in Pendleton County, over 150 miles
away -- my first campaign visit there. Travel through Elkins, stop
and put up road signs. Dinner at Franklin KFC. Arrive at
Democratic Rally about 7:00 p.m. Speak, answer questions, meet
voters. 9:30 p.m. - stop at convenience store, get coffee. Ron says
we need some more signs in this area. Put up signs in Seneca Rocks
area. Head home to Morgantown, drop off Ron.
Arrive home at 2:00 a.m. My wife Becky tells me that I am wanted
at the union hall in Weirton at 5:00, to go to the plant gates at 5:30
with union steward and lawyer. They assumed I had stayed in the
Weirton area. Union has 5600 members. Need to go. Shower,
change clothes, leave home at 3:00 a.m. Arrive at Weirton 5:00 a.m.,
stop at Hardee's for coffee. 5:30 - 8:00 a.m., meet 800 workers at
four different work gates. Travel to city offices, campaign. 12:00
luncheon with local supporters. 2:00 p.m. Travel to Wheeling -
revisit courthouse, spend 1 1/2 hours visiting offices. Head toward
home, pull off to nap. Traffic too noisy to sleep, drive home to
Morgantown. Sit in recliner, turn on news, asleep within 30 seconds.
Full day of campaigning tomorrow!
Reflecting on this campaign trip and dozens like it, I conclude that I am a better
person and a better judge, because of my time on the campaign trail.See footnote 19
Each voter with whom I have spoken -- and there are thousands -- has strengthened
my commitment to do a quality job for my fellow citizens.See footnote 20
Each vote cast in a judicial election --
including the votes cast for my opponents -- reminds me to try not to disappoint the voters' faith in
our democratic system.
Here is a challenging fact about our present judicial selection system: it gives the
same weight to the opinion of a minimum-wage dishwasher, as it does to the opinion of a
The merit-selection arguments against popular judicial elections in essence ask:
what does a dishwasher know of judging? But one might as well ask, what does a dishwasher know
of governmental budgeting, or of foreign policy? Perhaps not much. Yet it is the key to our system
that we entrust the selection of key public officials to our citizenry in general, rather than to elites
with purportedly superior knowledge and training.
To me, this egalitarian, one-person/one-vote approach to selecting those who exercise
state power -- including the power of judgingSee footnote 21
-- is the essence of sustainable good government.
I'm at the age when I'm beginning to acknowledge my accomplishments, instead of
disparaging them. So I'll admit that I'm proud of what I have done over many years (working with
others, of course) to try to build good government in West Virginia.
Based on that experience, I'm certain that changing West Virginia's current electoral
system for choosing our judges, would not be a move in the direction of good government.
1See Appendix A, Larry V. Starcher, Judicial Selection in West Virginia, Volume
12, Number 3, West Virginia Lawyer, October 1998.
2The forces of money and power are always opposed to the popular election of judges.
These forces fund so-called good government campaigns against the popular electoral
system for judicial selection. While any system for selecting judges has its negatives, the
basic arguments against judicial elections are in fact well-refuted by research comparing the
electoral and appointed approaches. Good government arguments against the popular
election of judges are in large measure a rhetorical cover-up for the fact that it is easier for
the rich and powerful (who are a numerical electoral minority) to affect and control who does
and does not become a judge, when the selection is by means other than popular election.
(See Starcher, supra.)
3Political decisions are quite American. Creating and giving people jobs and raising
salaries is a normal (and legal) part of what has historically been central to the operation of
the legislative and executive arenas. Consider, for example, the Budget Digest, a
mechanism whereby millions of dollars for local projects and jobs are annually passed out
like holiday gifts by the West Virginia legislative leadership. This mechanism has been
severely criticized by one of the dissenters in the instant case:
What a true laboratory of horrors the majority has concocted
with this lineage of back-room documents that will transform
what was originally pronounced as dead and having no force
and effect of law into something alive. The Igors of the world
may rejoice at the majority's concoction. I do not, because it
takes the legislative process out of the clear light of day where
matters are voted on by the entire legislature and condemns it to
that subterranean realm where memoranda of negotiations,
compromises, and agreements exist and discussions in
committee are used to validate the specific expenditure of funds
through the Budget Digest.
Common Cause of West Virginia v. Tomblin, 413 S.E.2d 358, 401, 186 W.VA. 537, 580
(1991). (Miller, J., dissenting).
To adopt the dissent's approach in the instant case, and to permit legislators who
create or raise the salary of jobs to then take and hold those jobs without first obtaining
popular approval, would surely furnish the laboratory of horrors with the raw materials of
even more un-democratic concoctions.
4The dissent has relied upon a simplistic grammatical construction, to read the relevant
constitutional language as permitting this perversion of the constitutional intent. But there
is, of course, an equally permissible grammatical construction that reflects a constitutional
intent to require popular election before an otherwise ineligible legislator may take an office.
That grammatical construction is consistent with the fact that our West Virginia
constitutional language -- offices to be elected by the people is mandatory -- as opposed
to the language in the cases relied upon by the dissent -- offices as may be elected by the
people. The construction that the majority adopts is in accord with history and scholarship.
The author was elected as judge of the Seventeenth Judicial Circuit in 1976, 1984, and 1992. He was
elected to the Supreme Court of Appeals of West Virginia in 1996. The author is grateful for the assistance of Thomas
W. Rodd, Supreme Court Law Clerk, J.D. West Virginia University College of Law 1982, in the preparation of this
Our research confirms previous studies which find little evidence that
selection systems produce judges with markedly different or superior
judicial credentials or that they vary on most other background
characteristics. . . . we find that selection systems have no important
impact on selecting judges with different or superior credentials for office
. . . .
Henry R. Glick and Craig F. Emmert, Selection Systems and Judicial Characteristics: the Recruitment of State
Supreme Court Judges, 70
Judicature No. 4, 228, 235
(1987). See also
David Adamany and Philip Dubois,
1976 Wis. L.Rev. 731 773.
Amid the clamor of contentions in support and opposition to each of the [judicial
selection] systems, there have emerged several empirical studies which demonstrate
that, in many respects, the benefits of any one system over another are negligible.
John M. Scheb, II, State Appellate Judge's Attitudes Toward Judicial Merit Selection and Retention: Results of a
National Survey, 72 Judicature No. 3, 170 n.8 (1988) (citations omitted).
Too often it has been assumed, without argument or discussion, that the
only major objectives in judicial selection are to secure judicial
independence and to recruit the highest quality legal professionals to
staff the bench. Other goals, such as judicial accountability or the
desirability of having a judiciary that is broadly representative of the
population that it serves, are assigned positions of secondary importance
or go unnoticed entirely.
As suggested above, the experience of most
jurisdictions with merit selection plans has not been the elimination of
political considerations from judicial selection, but the substitution of
some kinds of political forces by others.
Phillip L. Dubois, Accountability, Independence and the Selection of State Judges: the Role of Popular Judicial
Elections, 40 S.W.L.J. 31, 32 (1986)
There is no escaping that judges make policy. Since any judicial decision
involving broad policy questions advantages some interests far beyond the
immediate litigants and disadvantages other interests, one scholar has
argued that a judge is in the political process and his activity is interest
activity not as a matter of choice but of function. The mere act of
deciding is inherently policy formulation in such cases. But judges make
policy as a matter of choice as well as function, for most know that
sweeping public issues are involved and they act upon their personal
values in resolving those issues.
Since judges make public policy, it follows that, like other policy makers, they
should be accountable to the people in a representative political system.
Accountability usually means that those who lead policy making departments are
subject to direct, periodic popular review in elections. In some cases, accountability
may be achieved indirectly through the appointment of policy makers by those who
are periodically subject to voter approval.
David Adamany and Philip Dubois,
Electing State Judges,
1976 Wis. L.Rev. 731, 768 (footnote omitted).
The judiciary is the strong and effective shield of the personal rights of the
subject or citizen, against executive tyranny and legislative encroachment.
It should be kept separate from and independent of both. Liberty has
every thing to fear from the union of the judiciary with either, and the
effect of a disguised dependence is as dangerous as an ostensible union.
Montesquieu in his Spirit of Laws, says There is no true liberty if the
judiciary power be not separated from the legislative and executive
powers. The same view will be found reiterated in the Federalist, that
text book of the American Constitution: -- Though individual oppression
may now and then proceed from the courts of justice, the general liberty
of the people can never be endangered from that quarter, so long as the
judiciary remains truly distinct from both the Legislature and the
W.E. Drake, Remarks of Mr. Smyser of Adams County, in the House of Representatives, on Thursday, the 14th of March,
1850, on the Bill To Amend the Constitution by Providing for the Election of judges by the People, Pa. Telegraph, Mar.
23, 1850, at 2, quoted in
Harry L. Witte,
Judicial Selection in the People's Democratic Republic of Pennsylvania: Here
the People Rule?
Temple L.Rev. 1084
, 1116 n. 210 (1995).
At the simplest level, partisan elections are much more likely to assure
the existence of opposition, vigorous criticism of those in power, and
effective presentation of alternative policies. Political party leaders feel
an obligation to recruit qualified candidates for each partisan office
contested in an election, if for no other reason than to fill out and balance
the party ticket. Further, party organizations provide some of the
campaign resources necessary to promote a candidate and his program.
David Adamany and Philip Dubois, Electing State Judges, 1976 Wis.L.Rev. 731, 774-778.
The position in favor of accountability and judicial elections assumes
both a different view of the judicial function and of the basis of popular
support and respect for the courts. In this view, the process of judicial
decision-making, particularly at the level of state supreme courts, is far
from straight-forward or predetermined by legal precedents and the
principles of syllogistic legal reasoning. Rather, judges must often
exercise their discretion and in so doing are influenced by their own
political, economic, social, and moral viewpoints. And, in a democratic
political system, voters are entitled to periodically select those who make
law and public policy, including those who interpret their laws and give
meaning to the constitution.
Phillip L. Dubois, Accountability, Independence and the Selection of State Judges: the Role of Popular Judicial
Elections, 40 S.W.L.J. 31, 51-52 (1986) (citations omitted).
Popularly elected judges occasionally might perceive a sense of mandate
for them to act differently than other elected officials. For example, in a
1978 interview (reported in John Patrick Hagan, Policy Activism in the
West Virginia Supreme Court of Appeals, 1930-1985, 89 West Virginia
Law Review 149, 164 ), Justice Darrell McGraw of the West
Virginia Supreme Court of Appeals noted:
[T]he West Virginia court over the years has been primarily an
appointed court. That is to say, that the way one got on the
Supreme Court was to be appointed by some friend who was a
governor and then to run for election after the appointment. . . .
[The] current court consists of four [of a total of five] members
who actively sought the office of Supreme Court of Appeals and
were not appointed by any executive authority. We probably feel
a devotion to an independent judiciary, which some people in the
past have not felt. . . . [The state] Constitution quite clearly says
that the three branches of government . . . are separate,
distinctive, and independent, and our court is determined to
vindicate that separation.
Daniel R. Pinello, The Impact of Judicial-selection Method on State-Supreme-Court Policy: Innovation, Reaction, and
Atrophy, 135, 140 n.31, Greenwood Press, 1995.
But the impact of the traditional elective system may be even greater at
the point of entry, because it opens every initial judicial election and
subsequent re-election to competing candidates. One cannot well treat
judgeships as elective and not expect many of them to be contested and
some filled by self-starters, particularly self-starters with political skills
whose names are known from past elections for some other office.
Once we gave up drawing our highest judges in a genetic lottery, by birth into the
House of Lords, every system of judicial selection other than some form of
competitive civil service examination had to be political. The interesting question
is what kind of politics distinguishes the different systems.
In essence, as Justice Grodin says, the tension is between professional and popular
standards of judging judges. The law schools' Platonic ideal might be judges
chosen by professors and confirmed by law review editors, but I do not recall that
this ideal was shared by the rulers or citizens even of Athens. The knowledge of
having been elected directly by the people can be a source of strength as well as of
weakness. Many theorists unaccountably cite the lack of accountability of lifetime
appointed judges as an argument against enforcing constitutional law against elected
officials, but I hear no argument that we elected judges should do our job differently
or less professionally because we are accountable. In our court, I have never
heard popular or political reaction discussed as a factor bearing on the decision
before us. To adopt Justice Otto Kaus's much-quoted simile for the risk of defeat
in a judicial election, if you cannot cope with the crocodile, get out of the bathtub.
Hans A. Linde, Elective Judges: Some Comparative Comments, 61 S.Cal.L.Rev. 1995, 1997-98, 2004 (1988).
Today there are only twelve states in which the majority of judges are not
directly elected by the people. Most of these states select their judges
through executive nomination and legislative confirmation. In the
remaining thirty-eight states judges are subject to popular elections.
Jason Miles Levien and Stacie L. Fatka, Cleaning up Judicial Elections: Examining the First Amendment Limitations
on Judicial Campaign Regulation, 2 Mich.L. & Pol'y Rev. 71, 74-75 (1997) (footnotes omitted).
The rise of popular, partisan election of appellate judges is best understood as an
essentially thoughtful response by constitutionally moderate lawyers and judges in
the Whig, Democratic, and Republican parties. . . . popular election was not viewed
as inconsistent with the ideal of a powerful independent judiciary. Indeed,
elections were seen as the mechanism by which the courts could call upon a base
of popular support and credibility sufficient to allow them to effectively rival
legislative and executive power
Phillip L. Dubois, Accountability, Independence and the Selection of State Judges: the Role of Popular Judicial
Elections, 40 S.W.L.J. 31, 35 (1986)
Reflecting on this body of empirical work, one realizes the extent to
which politics--partisan politics and bar politics--pervades every type of
Regardless of the form of the selection mechanism, the content seems constant.
Choosing judges in America is a political process with a political result. The major
loss in accepting this past and present reality is the illusion that our judges are
totally above politics. While reformers have often wanted us to believe the
recruitment and selection of our judges should be beyond politics, we have yet to
determine if that is a result either achievable or desirable--even if it could be
concretely imagined. For if limited resources are to be divided in a world in which
demand all too often exceeds supply, what will be the standard of distributive
justice that includes no concept of politics? Even those who believe in equal
opportunity for all must confront the truth that all never have equal social position
or talent, and our judges must of necessity apply some concept of right in order to
decide disputes wherein everyone cannot have what is claimed as deserved.
Thus we have senatorial courtesy, and we should never expect that our judges will
be value free. The motives behind reform movements designed to change judicial
selection mechanisms can often be reduced to a claim that the judges currently
being selected are objectionable--politically objectionable to the reformers. While
our attention is focused on the debate over the change desired in the selection
mechanism itself, the change may not be fully comprehended until we ask, What
different types of judges do the reformers envision this changed mechanism will
produce? By keeping our attention on the result sought rather than on the debate
over procedure, we can often cut to the heart of the matter more quickly.
The curious aspect of this entire question has been the reluctance of Democrats to
admit they want Democratic judges, and of Republicans to admit they want
Republican judges. Virtually nowhere in the literature does anyone face this
question directly and either argue for it or against it. We prefer the debate over
merit selection because we think when we are articulating a principle above politics.
We can then posit and believe that we are looking for judges who apply those
abstract and universal principles of justice we believe exist, even if we have not yet
stated them in practice with the certainty and permanence of logical necessity.
Jerome R. Corsi, Judicial Politics 113-14, 153, Prentice-Hall 1984.
The process of picking a person to be a judge is woven into the political fabric and is, by any
definition, a political process. Daniel J. Meador, Some Yins and Yangs of Our Judicial System, 66 A.B.A. J. 122, 122
(1980), quoted in Peter D. Webster, Selection and Retention of Judges: Is There One 'Best' Method?, 23
Fla.St.U.L.Rev. 1, 3 n. 4 (1995).
In every state a judge needs to be some kind of politician. Richard Neely, Why Courts Don't Work 41,
Houghton Mifflin, 1980.
Investigative reporting has been sorely lacking in comparing the chances
of public interest attorneys, plaintiffs' attorneys, union attorneys and
corporate attorneys of gaining seats on the federal bench -- or in
examining the client and prior law firm base of judges who have ruled that
gun manufacturers have no liability to families of murder victims; that
tobacco companies have no liability to families of cancer victims; that the
scope of permissible affirmative-action programs should be steadily
Advocates of merit selection hew to the line that merit is to be determined by the
nebulous criterion of reputation rather than by objective measurable criteria. They
do not seek civil service tests or advanced legal degrees or even extra hours of
continuing legal education to measure legal knowledge, or any specific measure of
legal scholarship, or any specific measure of experience, objectivity or character.
They believe that the definition of merit varies from individual to individual, from
case to case, from day to day.
A system of elections in which all citizens have the right to participate is more
likely to serve public interests than a system in which participation is limited to
economic, legal and political elites.
Mark B. Cohen, Chairman
Commonwealth of Pennsylvania House of Representatives
Letter, The Nation Magazine , March, 1998.
Officials of state bar associations have been the first to admit that the merit
selection system provides them with the most effective means of
influencing the choice of who will serve on the bench.
Mary L. Volcansek,
The Effects of Judicial-Selection Reform: What We Know and What We Do Not, in
of Judicial Reform, 79, 87, Philip L. DuBois, ed., D. C. Heath 1982 (citation omitted).
Physical effort of campaigning, candidate's time consumed in a political
race, campaign expenses, and general indignities of direct exposure to the
voting public are the inconveniences most frequently named. Standing
alone, these are not asserted to be sufficiently objectionable to support
adoption of a nonelective plan, but when considered in light of their
discouraging effect on prospective judges, the case is thought to have been
made. It may be easily overlooked, but uncertainty, inconvenience, and
sacrifice have gone hand in hand with service to country, and no citizen
has reason to be assured that their removal guarantees, or even suggests,
dramatic improvement in public service or public servants.
Phillip L. DuBois, From Ballot to Bench 12, University of Texas 1978.
There's no way a judge is going to be able to ignore the political
consequences of certain decisions, especially if he or she has to make them
near election time. That would be like ignoring a crocodile in your
bathtub. (Former California Supreme Court Justice Otto Kaus, quoted in
Reidinger, The Politics of Judging, A.B.A. J., Apr. 1, 1987, at 52, 58.)
* * *
In reality, judges are not asked to refrain from deciding political questions at all;
rather they are asked to refrain from deciding political questions in too openly
partisan a fashion. . . . Paradoxically, the effectiveness of an appellate judicial
decision is related to its ability to transcend mere partisanship; and yet the more
effective a decision, the wider its political impact. (G. White, The American
Judicial Tradition, 371 (1976)).
Quoted at Robert F. Utter, State Constitutional Law, the United States Supreme Court, and Democratic Accountability:
Is There a Crocodile in the Bathtub?, 64 Wash.L.Rev. 19 (1989).
Rather than seeing the process of judicial decision-making as one in
which judges serve to apply fixed and enduring principles of law
impersonally and impartially, it is possible to see the tasks of judging as
calling for far more discretion and human judgment. Whether engaged in
the resolution of constitutional, statutory, or common law cases, judges are
required to make choices in their determination of the relevant facts, in the
selection of the appropriate legal principles and precedents, and in the
application of those principles to the determined facts. These choices are
pregnant with underlying questions of equity, justice, and public policy
which are inevitably influenced by the judge's personal attitudes and
values. In making these choices judges, like other political decision-
makers, allocate values in society such as opportunity, liberty, money,
protection, or representation in other types of decision-making. Like other
political decision-making, this allocation of values is differential; that is,
some individuals and groups are favored and others are disadvantaged.
Accordingly, in a democratic political system governed not entirely but in
the main by the principle of majority rule, judges should be held popularly
accountable for their decisions.
However, by comparison with trial courts, appellate courts, and especially state
supreme courts, are less frequently called upon to implement narrow procedural
rules, more frequently asked to answer questions with importance beyond the
immediate case at hand, required to exercise more discretion, and in general play
a (more) significant role in the policy making process of their state. For these
reasons, when selecting the state's highest judges, it is particularly appropriate to
strike the accountability/independence balance on the side of accountability.
Phillip L. Dubois, Accountability, Independence and the Selection of State Judges: the Role of Popular Judicial
Elections, 40 S.W.L.J. 31, 38-40 (1986) (footnotes omitted).