The Ideologies of Judicial Selection: Empiricism and the Transformation of the Judicial Selection Debate
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THE IDEOLOGIES OF JUDICIAL SELECTION:
EMPIRICISM AND THE TRANSFORMATION OF THE
JUDICIAL SELECTION DEBATE
Richard B. Saphire* and Paul Moke**
I. INTRODUCTION
A DVOCATES of merit and appointive judicial selection systems
contend that the judicial branch must be protected from the majoritarian
political process in order to preserve the interests of neutrality, due process, and
independence in the courtroom.' Critics respond that in a democracy, all public
officials-especially those who make public policy from the bench-need to be
held accountable to the voters . The resulting debate, conducted by scholars and
practitioners alike, features conflicting ideological and factual assertions about
the behavior of voters, judicial candidates, and interest groups in the judicial
selection process.3 Resolving this debate is a difficult and uncertain prospect, in
part because it is nearly as old as the republic itself.4 But any serious effort at
*Professor of Law, University of Dayton School of Law.
** Professor of Social and Political Studies, Wilmington College. Research on this article
was supported by research grants from the University of Dayton School of Law and Wilmington
College. Our thanks go to Jeannette Cox and Michael Solimine for their helpful comments on a
draft of this article.
1. See generally Donald L. Burnett, Jr., A Cancer on the Republic: The Assault upon
Impartiality of State Courts and the Challenge to Judicial Selection, 34 FORDHAM URB. L.J. 265
(2007) (discussing the need to select judges either by merit or by appointment).
2. Dennis Murashko, Accountability and Constitutional Federalism: Reconsidering Federal
Conditional Spending Programs in Light of Democratic Political Theory, 101 Nw. U. L. REv. 931,
943 (2007).
3. Peter D. Webster, Selection and Retention of Judges: Is There One Best Method?, 23
FLA. ST. U. L. REV. 1, 8-11 (1995).
4. In Federalist 78, Publius (Alexander Hamilton) argued that the federal judiciary must be
immune from popular political pressures, contending [i]f the power of making (judicial
appointments) was committed ... to the people, or to persons chosen by them for the special
purpose, there would be too great a disposition to consult popularity, to justify a reliance that
nothing would be consulted but the Constitution and the laws. THE FEDERALIST No. 78, at 470
(Alexander Hamilton) (Clinton Rossiter ed., 1961). Brutus (Robert Yates) countered that the
proposed Supreme Court should be accountable to an elected body, presumably either a Council of
Revision or the U.S. Senate. He wrote:](ViewImageLocal?handle=hein.journals/utol39&div=38&collection=&method=preview&ext=.png&size=3)
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The Ideologies of Judicial Selection: Empiricism and the Transformation of the Judicial Selection Debate
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