Vol. 29 No. 11 (December 2019) pp. 134-135

JUDICIAL MERIT SELECTION: INSTITUTIONAL DESIGN AND PERFORMANCE FOR STATE COURTS, by Greg Goelzhauser. Philadelphia: Temple University Press, 2019. 201pp. Cloth $71.29. ISBN 978-1439918074. Paper $32.95. ISBN 978-1439918081.

Reviewed by Chris W. Bonneau, Department of Political Science, University of Pittsburgh. Email: cwbonneau@gmail.com.

In his latest book on the politics of judicial selection, Greg Goelzhauser asks a fundamental question: “Does merit selection work?” (p. 3). This method of judicial selection has been around since the 1940s, but the answer to Goelzhauser’s question has long eluded scholars for two reasons. One, and noted by Goelzhauser, is the lack of transparency and data surrounding this process (more on this later). Second, those proponents of merit selection who have dominated the legal community for a long time have not really been interested in systematically evaluating whether or not it works; it has simply been assumed to accomplish its goals of having better judges, more diverse courts, etc. Of course, there have been a number of studies that have shown this is not the case, as Goelzhauser rightly notes. These studies have all focused on outcomes: do you get “better” judges under merit selection? Do you get more diverse courts? In this new book, JUDICIAL MERIT SELECTION: INSTITUTIONAL DESIGN AND PERFORMANCE FOR STATE COURTS, Goelzhauser opens up the hood of the car and looks at the process of selecting judges and the impact process has on outcomes.

After laying out his research question and the current state of the literature in Chapter 1, Goelzhauser turns his attention in Chapter 2 to a case study of filling a vacancy in Arizona. Although I am a big believer in the use of quantitative methods, the use of this case study highlights the value of incorporating qualitative methods in research. Most judicial nominating commissions (who are tasked with providing a list of nominees to the governor) operate in secrecy, making it very difficult to understand who applied for vacancies, what their background is, what the deliberations entailed, and so on. Arizona, however, does things differently. With a few narrowly carved out exceptions that Goelzhauser details, all parts of the process are public and the public even has an opportunity to make statements in support of candidates. This allows Goelzhauser to watch the nominating process unfold as it happens. Moreover, the votes of the commissioners are also public. This case study is a fascinating look at how commissions work in one state. The study is limited to Arizona due to data availability, and while this is a limitation, in my judgment it is not a big one. That said, it is likely that the behavior of these commissioners is affected simply because they know that their comments and actions are going to be viewed by the public. Overall, though, the analysis in this chapter provides valuable information about how judicial nominating commissions work.

Chapter 3 looks at Nebraska and asks, “why do nominating commissions and governors choose some candidates over others” (p. 54). Why Nebraska? Again, data: “only Nebraska produced enough information for rigorous quantitative analysis” (p. 57). Somewhat shockingly, “most states reported discarding the relevant information or having laws exempting it from disclosure” (p. 57). The findings from Nebraska are not surprising. However, they are contrary to the claims of those who advocate for merit selection. Female candidates are disadvantaged at the commission stage, meaning women are less likely than men to make it to the governor’s desk. This stems from the preference of judicial nominating commissions (which are not accountable to [*135] anyone) for male candidates. Then, at the governor’s stage, there is a partisan bias that enters in, with nominees who share the governor’s political party affiliation being more likely to be selected than those who do not. For political scientists, this is hardly a groundbreaking finding: of course we would expect governors to select their co-partisans. But this runs against the rhetoric of proponents of merit selection, who argue that this method depoliticizes judicial appointment. Goelzhauser’s evidence adds to mounting scholarship that merit selection neither produces a more diverse bench nor removes politics from judicial selection.

In Chapter 4, Goelzhauser tackles the question of what individuals constitute the pool of applicants for judgeships. Using data on everyone who has ever applied for a judgeship in Alaska and matching that to the list of individuals who were eligible (based on statutory restrictions) for a judgeship, Goelzhauser is able to understand what makes an individual more or less likely to seek out becoming a judge. Unsurprisingly, partisanship once again matters, with individuals who share a political party affiliation with the governor more likely to apply for a judgeship. Clearly, potential judges believe that partisanship matters and behave accordingly. In terms of progressive ambition (judges trying to move up to a higher-level court), their past performance matters, with those who have received higher percentages of the vote in their retention elections being more likely to apply for a higher judgeship. This suggests that judges are either aware of the consequences of their past performance, or they think the nominating and appointing authorities are. While retention elections are generally thought of as failing to provide for accountability, this suggests that while judges do not typically lose these elections, their performance in them might blunt their chances for seeking higher office.

Finally, Chapter 5 examines the differences between types of judicial nominating commissions. For example, does it matter for performance if the governor has a majority of appointees? Or the state bar association? Looking at a variety of measures, Goelzhauser concludes there are no differences. Thus, the findings of Chapters 3 and 4 would not disappear if Nebraska and Alaska tweaked their commission processes. This helps alleviate some of the concerns over the single-state focus of the previous chapters.

In the end, does merit selection work? The answer is “ish” and it depends on what one means by “work.” Certainly, one gets qualified judges under this method of selection, but the same can be said for other methods as well. It seems clear that merit selection does not remove partisan considerations at all in the nomination and appointment processes. We knew this when it came to gubernatorial appointments, but the fact that it plays a role in the nomination process as well is news. This book also points to the need for more transparency for these commissions; in many ways, Arizona is a model for how these commissions should be run. I also think Goelzhauser missed an opportunity to engage with the recent work of Brian Fitzpatrick (2017), which shows a definite ideological skew in merit states. This relates nicely with the findings of partisanship in this book.

Bottom line: this is an outstanding book that involved creative research design and painstaking data collection. It is a must-read for anyone interested in the politics of judicial selection, and does an excellent job using the limited data available to evaluate the merit selection system on its own terms.

Fitzpatrick, Brian T. 2017. “The Ideological Consequences of Selection: A Nationwide Study of the Methods of Selecting Judges.” VANDERBILT LAW REVIEW 70: 1729-1754.

© Copyright 2019 by author, Chris W. Bonneau.