Michael S. Greco
President, American Bar Association
Keynote Address
Washington State Summit on Judicial Selection
and Judicial Independence
Seattle University School of Law
Sullivan Hall
Friday, November 11, 2005
Governor Locke, Senator Gorton, Chief Justice Alexander, judges, members of
the legislature, leaders of the bar, representatives of the media, friends and colleagues
thank you for welcoming me to Seattle and inviting me to address the Washington
State Summit on Judicial Selection and Judicial Independence. I also want to thank the
Seattle University School of Law and Dean Kellye Testy for hosting this summit and
all of the co-sponsoring organizations for bringing together such a distinguished group
to discuss issues of great importance to the citizens of Washington State.
My remarks today will focus on the American Bar Association s policies regarding
judicial selection in the states, and the way in which judicial selection processes impact
the independence of the judiciary. Before I discuss the current climate and issues
surrounding judicial selection in the states, I will note that it is appropriate that we are
gathered to discuss these issues during the centennial year of Roscoe Pound s seminal
address to the ABA on The Causes of Popular Dissatisfaction with the Administration
of Justice. Pound s address sparked a long-lasting reform movement in the law that
helped give birth to the modernization of judicial organization and administration, the
alternative dispute resolution movement, and several other improvements to the legal
system and the administration of justice.
Pound s address to the ABA is also credited with spurring efforts to reform the
way in which judges are selected in the United States, although curiously, his speech
contained only a passing reference, near the end, to this issue. Pound noted that
Putting courts into politics, and compelling judges to become politicians, in many
jurisdictions has almost destroyed the traditional respect for the bench. While Pound s
concern for separating judges from base political concerns was certainly real, he was
more troubled by the flaws in judicial organization and procedure that plagued the
courts of his day. And in the end, he struck a positive tone, closing his address with the
hopeful prediction that we may look forward to a near future when our courts will be
swift and certain agents of justice, whose decisions will be acquiesced in and respected
by all.
I think most observers would agree that our courts have yet to achieve the state
of near-Platonic perfection that Pound saw on the imminent horizon one hundred years
ago. We have certainly made dramatic improvements over the past century, particularly
in the areas of greatest concern to Pound judicial organization and procedure. The
establishment of unified court systems and the elimination of overlapping jurisdiction in
many states are just a few of the innovations that have enhanced the productivity of our
courts.
But what would Pound think of the current political climate surrounding the
judiciary, and the dynamics of judicial selection in the states? I believe that he would be
deeply troubled, as we all should be, by the threats to an independent judiciary posed
by the ever-increasing politicization of the judiciary and judicial selection methods.
Allow me to step back for a moment and clarify what I mean by politicization of
the judiciary. I do not mean to suggest that politics can be removed entirely from the
process of selecting, evaluating or retaining judges. Indeed, in the United States, any
form of judicial selection is inherently political not necessarily in the partisan political
sense that legislative and executive branch elections are, but in the lower case p
political sense that judges are public officials who are selected either by the voters or by
other public officials.
There is no way to completely remove political considerations from selection
process, nor, I submit, would we want to do so. Our federal and state constitutions and
our history of preparing and selecting judges are vastly different from those used in
many other countries, where lawyers follow a civil service track to the bench and where
the judiciary is not a separate and independent branch of government. Indeed, much of
the authority and respect that the judiciary in the United States commands is due to the
fact that judges are chosen through a range of processes that reflect, directly or
indirectly, the public s approval of their selection.
There is a reasonable expectation that presidents and governors will appoint
judges whose philosophy of judging and approach to the law reflects with their own.
Prospective appointees must meet high standards of professional competence, judicial
temperament, and personal integrity. But assuming that prospective judges are
qualified to serve on the bench, we accept that presidents and governors have the
prerogative to appoint a judge of their choosing.
There are, of course, notable constraints on executive discretion in the
appointment process including the Senate s advice and consent function in the federal
system, and the role of judicial nominating commissions in many states that narrow the
pool of applicants to a small number from which governors must choose. Likewise,
voters can be expected at least in theory to select judges who reflect the prevailing
view of law and jurisprudence. The low profile of judicial elections in most states
produces contests that are too often decided on extraneous factors such as name
recognition and ballot placement, but the underlying theory that voters have the
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opportunity to select judges that reflect their values
in many states for much of our history.
has kept judicial elections in place
So what s wrong with politics in judicial selection, and what kinds of political
influences are inappropriate? The American Bar Association has long held the position
that judges should be appointed based on the strength of their professional
qualifications in order to reduce the kinds of political influences that compromise their
ability to be neutral and impartial arbiters of disputes.
At the most basic level, the job of judging is fundamentally incompatible with the
rough-and-tumble of politics and political campaigns. The very nature of judging is
dramatically different from the roles that legislators and executive branch officials are
asked to play. Judges are not supposed to react to or express the preferences of
particular constituencies within the body politic. Instead, they are required to make
decisions every day that will upset at least half of the people in the courtroom, and
perhaps many more outside the courtroom. Their only constituents must be the law and
the facts of each case that comes before them.
When judges feel pressure to please political supporters or allies, or to stake out
positions on controversial issues that may come before them, inappropriate political
influences threaten the independence of the judiciary. As the branch of government
having neither the power of the purse nor the sword, the judiciary relies on the public s
trust and confidence in its integrity and basic fairness to ensure acceptance of its
decisions. Judicial elections, and the political dynamics in some appointive systems,
can create the perception that judges can be influenced by campaign contributors,
promises made to political sponsors, and other factors that are unrelated to the core
responsibilities of being a judge.
It is this perception of political influence on judges that is so corrosive to
Americans trust and confidence in the justice system and the judiciary. We are
fortunate that the vast majority of judges in this nation do not allow their impartiality and
independence to be compromised by inappropriate political considerations or
influences. But the damage has already done if the people believe otherwise.
The challenge is to eliminate or reduce those political influences that are most
harmful to the judiciary, to parties who come to court for an impartial hearing, and to the
public at large. One way of addressing these influences is to alter the systems by which
judges are selected, as many states have done over the past half century.
Beginning in 1940 with the adoption of the Missouri Plan, fifteen states have
adopted constitutional amendments to replace judicial elections with some variation of
merit selection for some or all judges. Several other states have adopted merit
selection systems, by constitutional amendment, statute, or executive order, for certain
levels of court or types of vacancies. In all, some form of merit-based appointment is
currently used in 35 states. The American Bar Association has supported merit-based
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appointment of state judges since 1937, and has reaffirmed and refined its policies on
state judicial selection many times over the past 70 years.
I want to add that I use the term merit selection reluctantly, because I do not
believe that it has a universally-accepted definition. But it remains the most commonlyunderstood term to describe a system in which a bipartisan or nonpartisan judicial
nominating commission screens, evaluates and recommends a limited number of
candidates to the appointing authority. In many states, appointed judges are then
subject to periodic, noncompetitive retention elections, although merit selection systems
are also found in states, such as my home state of Massachusetts, where judges never
appear on the ballot.
The momentum towards adoption of merit selection systems that peaked in the
1960s and 1970s has slowed to a crawl, with voters in several states rejecting proposed
constitutional amendments to replace judicial elections with appointive systems over the
past twenty years. Public opinion surveys at the national and state levels tell us that the
American public is of two minds about politics and judicial selection. National surveys
conducted in recent years by the ABA and by the Justice at Stake Campaign, and state
surveys conducted in North Carolina and other states, show that people are very
concerned about the influence that campaign contributions and promises made on the
campaign trail might have on judicial decisions. But most survey respondents express a
strong preference for electing judges even in those states where judges are
appointed.
The natural question, then, is where do we go from here? If we are committed to
the principle of isolating judges from the kinds of political influences that can
compromise their independence and impartiality whether in reality or in the eyes of the
public what can we do to build consensus around reforms or improvements to judicial
selection systems?
In its latest policy statement on judicial selection and judicial independence in the
states, which was adopted in 2003, the ABA outlines a preferred system of selection,
followed by alternative recommendations. The ABA s preferred system of state
judicial selection is a commission-based appointive system, in which the governor
appoints judges from a pool of aspirants whose qualifications have been reviewed and
approved by a credible, neutral, nonpartisan, and diverse deliberative body or
commission. Under the ABA s preferred system, judges should serve until a specified
age, and should not be subject to reappointment or re-election. But they should be
subject to regular judicial performance evaluations and disciplinary processes that
include removal for misconduct.
The ABA House of Delegates, our policy-making body, adopted this preferred
system overwhelmingly based on the arguments that it ensures the independence of
individual judges while maintaining appropriate accountability for performance and
conduct on the bench. It insulates judges from the prevailing political winds of the day
and allows them to follow the dictates of the law without fear of losing their jobs for
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doing exactly what their jobs require
best of their abilities.
making difficult decisions, on the merits, to the
The ABA recognizes, however, that states may not rush to adopt this preferred
system of judicial selection. The weight of much history and tradition appears to be on
the side of judicial elections, and variations on elective systems, in many states
including perhaps Washington. In recognition of this reality, and of the tremendous
variation in judicial selection systems used in the states, the ABA has also endorsed a
series of alternative recommendations.
For instance, in states that cannot grant what is essentially life tenure (to a
specified age) we recommend that judges be reappointed by a commission rather than
a governor in order to reduce the chances of political retribution for unpopular
decisions. Or for states that cannot abandon judicial elections altogether, we
recommend that elections be used only at the point of initial selection. Many observers
believe that the greater threat to judicial independence comes at the point of re-election,
when judges are most concerned that controversial yet legally correct decisions may
jeopardize their tenure on the bench. Further, for states that retain judicial elections for
additional terms, we recommend that judges stand in uncontested retention elections
rather than contested partisan or nonpartisan elections.
These alternative recommendations go on to express a preference for:
Non-partisan elections over partisan ones,
Longer terms for judges;
Voter guides to inform the public, such as those used in Washington
State; and,
Public financing of judicial campaigns.
The ABA has also adopted a number of policies relating to improved judicial
compensation, regular performance evaluation of judges, and enhanced security
measures to protect judges and court personnel that all relate to the institutional
independence and integrity of the judiciary. Whether any of these recommendations, or
combination thereof, is appropriate for the State of Washington is not for me to say
although I hope that you will consider them in your deliberations during this Summit and
beyond.
The ABA, in cooperation with the State Bar of Washington and the King County
Bar Association, is a resource on the subject you are addressing today and many other
issues of importance to our legal system and judiciary. Please do not hesitate to draw
upon our resources.
Nothing is more critical to the continued health and vitality of our democracy than
ensuring an independent, effective, and well-respected judiciary. Our uniquely
independent American judiciary has seen us through our most difficult times, and it will
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continue to do so if we continue to cherish and defend it. If we do not protect our
courts, they cannot protect us.
Thank you for inviting me to share a few thoughts with you today. You have my
best wishes and support for your important efforts.
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