The methods by which judges on state supreme courts are selected and retained has long been a subject for debate by policymakers and academics alike. The goal of judicial independence drives the way that judges are selected and retained in the federal courts, with the process of advice and consent and life tenure. At the state level, this goal of independence varies, or has been subsumed by a desire for judges to be accountable. The debate over how to select judges for state courts is well trodden in the literature (e.g., see Chris W. Bonneau and Melinda Gann Hall, In Defense of Judicial Elections, 2009). The implications of these institutional arrangements have also been the subject of significant research. This includes how the methods of selection and retention effect decision making, who sits on the courts, and court legitimacy.
In Choosing State Supreme Court Justices, Greg Goelzhauser adds significantly to this literature by focusing on one type of method of selection, merit selection. In this most comprehensive study, Goelzhauser asks simply, does merit selection live up to its name and intentions? Who is selected to serve on these state supreme courts? And how does this differ from states with election or appointment systems? While the book leaves readers without a definitive answer as to whether merit selection “succeeds” or not, we gain significantly in what we know about this system. Indeed, one of the most important contributions that the author makes is in simply defining the differences between terms for merit selection that many, incorrectly, use interchangeably. The “core component is the use of elites to winnow judicial candidates before elite appointment” (p. 4). This can be followed by any type of retention, including elections, reappointments, or even life tenure. Merit selection is notable, then, for its removal of the selection (if not retention) of judges from the overt political process.
Those who study state supreme courts know that Missouri was the first state to adopt a version of merit selection. Moving beyond this, Goelzhauser provides a far more in-depth and interesting history of the adoption of this system. In his well-documented historical discussion, he addresses the political considerations that led states to adopt (or fail to adopt) merit selection. Since the enactment of the plan in Missouri, many other states have implemented their own merit selection plans, choosing them with the intention of removing political pressure from the selection process. But who gets selected with these plans? In other words, does merit selection live up to its intended effects? This is explored in the subsequent three chapters in the book.
In order to explain who gets selected in these merit states, a significant data collection effort was undertaken. Biographical and other information on more than 1,500 state supreme court justices was collected, covering the expansive time period of 1960–2014. These data overcome one of the more significant drawbacks of the early work on merit selection and state courts more generally, which suffered from limited data and were often studies of one or a few states. With new data in hand, the author seeks to first determine if judges with different types of backgrounds are nominated in merit selection. Who sits on our courts matters, but their experience is particularly important as it affects how they understand the parties before them, and even how they decide cases.
It is interesting that Goelzhauser finds few differences across the selection systems for the types of experience that justices have. With the caveat that determining who held a politically connected job is very challenging, the author does find that those who have employment ties to political office are more likely to be justices in states with appointment systems. This reminds the reader that appointment systems are often wrongly described as apolitical or less political than elections.
Its name alone, “merit selection,” suggests that this system of choosing judges should lead to better-quality justices than appointment or nonmerit election systems. The merit process was designed to take the politics out of the nomination of judges, and select judges based solely on their qualifications. Goelzhauser explores how true this is in the fourth chapter. Yet how we should judge qualification, like how we should think about experience, becomes a challenging question of measurement. What should indicate a highly qualified judge? The author uses the indices of where judges went to law school, and their previous judicial experience, to test this issue of quality. Once again, Goelzhauser does not find significant differences in the qualifications of judges across the methods of selection. But he does show that merit selection systems produce judges who performed better in law school, and that appointment systems outperform election systems on some measures of law school quality.
How one can capture the concepts of qualifications and previous experience is a significant challenge, and one about which the author is very forthcoming. However, he might have looked to other measures of qualification, such as later quality decisions after the justices have served on the court for some time. In other words, while merit selection does not necessarily produce more qualified judges, one wonders if better-quality judges sit on these courts as measured over time.
In the final quantitative chapter, the author looks to the ways in which the methods of selection affect the diversity on the courts. This is an important contribution, as diversity has not often been used to argue for or against one selection system. Studies of this question are still limited in number, though important in character. Again, the author finds no clear-cut advantage of any one method of selection in diversifying the courts. The relationship between the methods of selection and the diversity of the bench differs whether discussing gender, race, or political minorities.
Certainly, this book makes a significant contribution to the literature on the selection of state court justices. There are some limitations, however, and one is in the separation of voluntary and involuntary merit selection systems. Table 1.1 (p. 7) is incredibly useful in noting which states have these systems, and the author suggests that he will focus on the nonvoluntary institutions in the analysis in the book. However, in the analysis chapters, little is said about the differences in these states, or how they were coded, or what differences we might see across them. An interesting addition to the book would have been a comparison across not just merit, appointment, or elections but also voluntary and involuntary merit selection.
While Goelzhauser takes care not to answer the question of whether states should or should not adopt merit selection, the analysis provided in Choosing State Supreme Court Justices will go a long way to informing the debate and providing important information for those who make these decisions. As he concludes, “no judicial selection system enjoys a systematic advantage over the others” (p. 108). Goelzhauser does not crown a clear “winner” of the debate over selection, but his comprehensive and accessible work will certainly be used to further the discussion.
