The Ideologies of Judicial Selection: Empiricism and the Transformation of the Judicial Selection Debate

Abstract

In this essay, we argue that academic analysis of the judicial selection systems for state courts is bifurcated into two separate literatures. Law review commentators conduct normative analysis that often has little to say about the social science evidence while social scientists analyze empirical data without placing it into its broader public policy and normative context. We offer a synthesis of these two literatures by engaging the recent empirical literature on state judicial selection systems, squaring it with the major normative assertions that reformers have made in their quest to replace the elected judiciary with appointive or merit selection systems. In addition to our review of the empirical literature, we conduct an original analysis of 1,300 tort cases decided by state supreme courts nationwide in the 1990's to determine the extent of judicial independence in merit and contested election jurisdictions, a central matter of contention in the judicial selection debate. We find that judges standing for contested election shift to a pro-plaintiff position as elections approach, whereas judges up for retention do not alter their customary pro-defendant stance.

Our review of the social science literature leads us to conclude that the empirical evidence in support of the reformers' arguments is mixed and that it is insufficient to carry the judicial selection debate beyond its traditional normative moorings. In view of this finding, we suggest that because the merit selection debate is profoundly ideological in nature, it is unlikely that the debate can be resolved on empirical grounds at all. We argue that it is incumbent upon academic commentators to accommodate the competing ideological values and seek lasting reforms that require each side to relinquish any claim to ideological supremacy.