Beyond Quality: First Principles in Judicial Selection and Their Application to a Commission-Based Selection System

Abstract

Among the many different types of judicial selection systems in use in the United States, the commission-based system, popularly referred to as "merit selection," provides the best opportunity for the selection of qualified judges. This does not mean, however, that it cannot be refined to better enhance both quality and public acceptance. In order to do so, it is necessary to determine what principles judicial selection should be designed to achieve, and how a commission-based system can be tailored to achieve those principles.

While the selection of qualified judges is the primary goal of the commission selection system, there are five other "first principles" that should be advanced in an optimal selection system: independence, accountability, representativeness, legitimacy, and transparency. Consideration of each of these principles is necessary to ensure that a judicial selection system is both effective in selecting qualified judges and supported by the public.

This article examines these principles and how their consideration affects choice in the configuration of a commission-based judicial selection system. While these principles do not dictate one perfect system, they do set up parameters within which experimentation can occur to further refine the commission system.

Keywords: judicial selection, merit selection, commission system, judicial independence, judicial accountability, representativeness, transparency