May Lawyers be Given the Power to Elect Those Who Choose Our Judges? ‘Merit Selection’ and Constitutional Law

28 Pages Posted: 13 Nov 2010 Last revised: 27 May 2011

See all articles by Nelson Lund

Nelson Lund

George Mason University School of Law

Date Written: November 11, 2010


“Missouri Plan” judicial selection mechanisms, which many states have adopted, seek to ensure that judges are appointed on the basis of “merit” rather than “politics.” These devices typically feature a judicial nominating commission comprising some lawyers and some lay members. The lay members are usually chosen by the governor, and the lawyers are frequently elected by the state bar.

Laws giving lawyers a legally preferred role in judicial selection sit very uneasily with basic tenets of republican government and political economy, though principles of federalism might counsel against federal interference with these state decisions about the structure of government. Whatever one thinks about those contending principles, however, the states are now governed by a well-settled body of equal protection doctrine that sharply limits their authority to hold elections from which some voters are excluded.

The inferior federal courts have uniformly upheld Missouri Plan devices against equal protection challenges, but all of the opinions have been poorly reasoned. This paper focuses on the Kansas version of merit selection, which gives lawyers a uniquely powerful role in selecting that state’s supreme court. The paper concludes that the Kansas system, which is now being challenged in federal court, is almost certainly unconstitutional under existing precedent.

Keywords: Ball, Clause, Congress, Constitution, Delegation, Edwards, Electoral College, Fourteenth Amendment, Gray, Interest, James Madison, Kramer v. Union Free School District, Lockport, President, Private, Public, Puerto Rico, Reynolds, Rodriguez, Sailors, Salyer, Sanders, Sims, Tulare, Voting, Wells

Suggested Citation

Lund, Nelson Robert, May Lawyers be Given the Power to Elect Those Who Choose Our Judges? ‘Merit Selection’ and Constitutional Law (November 11, 2010). Harvard Journal of Law and Public Policy, Vol. 34, No. 3, pp. 1043-1069, Summer 2011; George Mason Law & Economics Research Paper No. 10-59. Available at SSRN:

Nelson Robert Lund (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)

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