CHOOSING STATE SUPREME COURT JUSTICES: MERIT SELECTION AND THE CONSEQUENCES OF INSTITUITONAL REFORM

Vol. 27 No. 1 (January 2017) pp. 14-17

CHOOSING STATE SUPREME COURT JUSTICES: MERIT SELECTION AND THE CONSEQUENCES OF INSTITUITONAL REFORM, by Greg Goelzhauser. Philadelphia: Temple University Press, 2016. 192pp. Cloth $84.50. ISBN: 978-1-4399-1339-0.

Reviewed by Melinda Gann Hall, Department of Political Science, Michigan State University. Email: hallme@msu.edu.

In this excellent new book, Greg Goelzhauser addresses a broad fundamental question related to political representation, judicial selection, court reform, and the politics of institutions: Does “merit selection” produce more qualified state supreme court justices or better diversify the bench relative to other methods of initial selection. In answering this intriguing perennial question, Goelzhauser examines over 1,500 state supreme court justices seated from 1960 through 2014 across all fifty states. The focus is on three primary indicators of judicial quality and diversity: professional experience, professional quality; and gender, race, and ethnicity.

The selection systems themselves are categorized as elite appointment plans (i.e., appointment plans lacking the commission review structure), partisan and nonpartisan elections (designated as “elections”), and merit selection. In his study, Goelzhauser departs from the traditional definition of merit selection as the Missouri Plan, or a commission-based gubernatorial appointment process with subsequent retention elections. Instead, Goelzhauser defines merit selection as any use of a commission-based nomination process, including the Missouri Plan and gubernatorial appointment without subsequent retention elections. Thus, in using these three categories of selection systems, Goelzhauser does not differentiate between types of contestable elections (partisan versus nonpartisan elections), consider variations in commission systems (including formal rules for the selection of commissioners, the partisan composition of the commissions, and gubernatorial discretion to reject lists of the nomination commissions), or examine differences in elite appointment systems (e.g., selection by the governor versus legislature). In the same vein, Goelzhauser does not consider retention constituencies (e.g., appointments for fixed terms versus appointments with lifetime tenure). Of course, this is both a limit and an asset, providing parsimony in modeling and the interpretation of substantive results.

One of the many strengths of this terrific project is Goelzhauser’s use of precise definitions for each key concept, multiple indicators, and a consistent format for modeling and reporting the statistical analyses, which make interpreting the primary results straightforward. Essentially Goelzhauser utilizes a fixed set of independent variables (including selection systems) and logistical regression to predict a variety of the justices’ traits, each separately. The full models are reported in the appendices while the principal results about the impact of selection systems on experience, quality, and diversity are shown in the chapters. Specifically, in the chapters Goelzhauser reports changes in predicted probabilities (and significance tests) associated with seating a justice with a particular trait between merit selection and appointment, merit selection and elections, and appointment and elections.

Overall, the results reveal some intriguing nuances, but the bottom line is that no selection system consistently produces a more qualified or diversified bench than any other. These findings sharply challenge arguments proffered by the reform community that merit selection produces a better and more inclusive bench relative to other forms of initial selection but are quite consistent with other empirical studies of quality and diversity, including the now-classic Glick and Emmert (1987) study and the more recent work of Hurwitz and Lanier (2008). Even so, there are some variations in how selection systems influence, or fail to influence, the types of justices selected. [*15]

Goelzhauser begins his exploration with a convincing argument in Chapter 1 about why the issue of selection system impact is important. In doing so, he carefully defines merit selection as the use of a nominating commission to winnow judicial candidates before elite appointments, including interim appointments made in states using other methods for regular terms. Taking into account the interim appointment process is a notable innovation. Goelzhauser also recognizes that merit systems were established through constitutional/statutory revisions and through the voluntary practices of governors, but then he restricts the empirical analyses to constitutional/statutory plans on the basis that the empirical results reported throughout the book usually are substantively similar either way. Importantly, Goelzhauser does not advance normative arguments favoring or disfavoring any particular selection system but does consider some of the normative implications of his findings throughout the book and in Chapter 6, often showcasing alternative normative conclusions that could be drawn from key findings.

As is standard practice, Chapter 1 lays out the plan for the rest of the book, including the three specific empirical questions to be addressed. Does merit selection result in the selection of state supreme court justices with superior professional training? Does merit selection recruit state high court justices with more impressive professional qualifications? And does merit selection diversify the bench better than other methods? In this regard, the purpose of the book is well- defined, as are the measures and other aspects of the empirical portions of the project.

Chapter 2 takes readers through a concise history of state judicial selection reform, focused largely on the rise of merit selection in the states. Goelzhauser smartly avoids the tired and simplistic accountability–independence frame and instead focuses largely on complaints about each previous selection scheme. A more detailed summary of some of the recent criticisms of merit selection would have strengthened this chapter, especially the experience of Tennessee only briefly mentioned and empirical studies of the disadvantages associated with judicial selection commissions. Even so, the broader discussion is informative, balanced, and interesting.

Chapters 3 through 5 report the statistical analyses, which include models standardized with the same basic set of independent variables. These are appointment, election, court professionalization, court size, term years, mandatory retirement, lawyers (logged; and listed separately for women, black, and nonwhites in the diversity models), state liberalism, region fixed effects, and temporal variation. Merit is the omitted baseline category among selection systems. More discussion would have been helpful on why most of these variables are not statistically significant or are significant in predicting some traits but not others. For instance, the variables for term and mandatory retirement are not statistically significant in any of the twenty-one models reported in the appendices. Professionalization has the most consistent significant impact but in only five of the models. Likewise, some aspects of state politics, or the external political environment, may have provided additional insights. For example, elite ideology and partisanship might play a role in the types of justices selected. Similarly, as mentioned earlier, the models do not consider retention constituencies. Nonetheless, the modeling throughout is entirely reasonable and well executed, producing an interesting set of robust findings.

Chapter 3 focuses specifically on the question of whether alternative judicial selection systems initially recruit justices with different types of work experience (excluding service on the bench, which is considered as quality in Chapter 4). Particularly interesting in Chapter 3 is the discussion of why variations in experience are important, including the potential impact on judicial decision making and the types of political connections revealed.

Although there is a great deal of relevant descriptive data presented in Chapters 3, 4, and 5, the basic hypothesis tests in the multivariate [*16] models in Chapter 3 first assess whether selection systems are associated with justices having private experience or public experience prior to selection for the state supreme court bench, or a combination of public and private service. Goelzhauser then explores specific types of public experience, including service in major public office (e.g., state legislators, top-level executive positions in state government), positions with major-office ties (i.e., subordinate employee positions such as governor’s counsel or legislative aide), work in federal government, prosecutorial experience, academic employment, and work with legal services.

The findings in this chapter are somewhat complicated. For example, the justices seated from 1960 through 2014 were more likely to have held major office if chosen by appointment or election plans than by the merit system. However, as Goelzhauser states, “there are more similarities than differences across selection systems in terms of the types of work experience complied by state supreme court justices. Moreover, no selection system is more or less likely than any other to systematically favor justices across experience categories” (pp. 956-57).

Chapter 4 centers on the issue of quality. As in Chapter 3 and Chapter 5, Goelzhauser utilizes multiple indicators for this key concept but focuses on two primary categories: 1) law school quality and performance, and 2) judicial experience. Law school quality and performance is measured as having attended an elite law school, local elite law school, or served on the law review, as well as an ordered ranking of law schools. Judicial experience is measured as being present or absent, years served, the presence or absence of appellate experience, and years served on the appellate bench.

Although there are no statistical differences across selection systems in judicial service on any indicator, there are some notable but inconsistent variations in law school quality. For example, justices initially selected by elections are less likely than their counterparts chosen by merit selection or appointment to have attended an elite law school. However, these differences disappear when the measure of quality is having attended a local elite law school. Goelzhauser concludes that on the issue of quality “no selection system enjoys a systematic advantage over any other system” (p. 82).

Chapter 5 explores diversity on the bench, defined in multiple ways: women, African Americans, nonwhites (black, Hispanic, and Asian Americans), and all of the above (designated as “political minorities”). As with the models in Chapter 3 and 4, the results are somewhat complex. For instance, black justices and nonwhite justices are less likely to be chosen in elections than by appointment or merit, and women and political minorities overall are less likely to be seated through merit selection than appointments. But again, “no selection system produces more or less diverse state supreme court justices across categories” (p. 106).

In the models in Chapter 5, additional information about the performance of the regional and temporal variables would have been welcome, especially given that many partisan election systems were/are located in the Deep South and the temporal span of this project is considerable. For instance, observing changes, if any, in the South between the 1960s-70s and the current period would have been fascinating. But instead of showing coefficients for the region variables based on census categories and various measures of time (i.e., an annual count variable, time squared, and time cubed), the region and temporal variables are shown simply as having been included in the models. The tradeoff is a nicely streamlined presentation of results focused on the substantive variables of interest in the project.

Chapter 6 is brief, providing a careful summary of results and some overall conclusions about merit selection in the states. As Goelzhauser notes, although there certainly are some differences among selection systems on specific indicators, the body of findings “counsel skepticism regarding any claim that one selection system enjoys systematic empirical advantages over others with respect to producing [*17] state supreme court justices with characteristics having to do with professional experience, qualifications, and diversity” (p. 111). Goelzhauser follows this summary with a brief discussion of the difficulty of drawing normative conclusions from empirical data and some suggestions for future research, including assessments of the impact of selection systems on the candidate pool.

Overall, Goelzhauser delivers a thought-provoking, well written, and expertly executed project that should be a welcome addition to any political science collection. Without question, the intriguing findings and discussion framing the analysis and conclusions in Choosing State Supreme Court Justices are major contribution to political science, with substantial implications for theories of representation, institutions, and judicial politics. They also speak to audiences outside the academy, especially state lawmakers and other public policy advocates seeking to improve the process of judicial selection.

REFERENCES

Glick, Henry R. and Craig F. Emmert. 1987. “Selection Systems and Judicial Characteristics: The Recruitment of State Supreme Court Judges.” JUDICATURE 70 (4): 228-235.

Hurwitz, Mark S. and Drew Noble Lanier. 2008. “Diversity in State and Federal Appellate Courts: Change and Continuity across 20 Years.” JUSTICE SYSTEM JOURNAL 29 (1): 47-70.

**************
© Copyright 2017 by author, Melinda Gann Hall.