Senate plan would remove merit from judicial selection

FOR THE PAST COUPLE of years, critics with the laudable goal of increasing the diversity on state courts have been proposing a most unlaudable solution — eliminating “merit” from the merit selection process.

This effort is wildly popular in the House, which was famous for stacking the court with its own members before we adopted a merit selection system, but it has been largely rejected in the Senate as a step back toward awarding judgeships based more on personal and political connections than on knowledge or ability.

But suddenly, and largely beyond public notice, the Senate finds itself poised to do what it has rightly condemned the House for doing.

The Senate plan, which could come up for debate today, purports to make a much smaller change. Whereas the House voted to eliminate the nomination process entirely and allow the Legislature to consider any and all candidates found “qualified” by the Judicial Merit Selection Commission, the Senate bill merely increases the number of qualified candidates the panel must nominate for each seat, from three to five.

But there will rarely be any practical difference. Consider the latest round of judicial elections. Only one race featured more than three candidates, and that one had — you guessed it — five. Increase the number of nominees to five, and there is effectively no nomination process any longer.

Last month’s elections were typical. From 1997, when the nomination process began, through 2004, a total of 423 candidates sought 215 judgeships. Ignore the elections involving incumbents (they are almost always unopposed), and the average number of candidates per contest ranged from 2.8, in 1997, to 5.9, in 1998. But 1998 appears to have been a fluke; the average hasn’t exceeded 4.8 in any other year.

Senators will argue that their proposal makes sense for that very reason: Often, the three-nominee limit doesn’t stop any qualified candidates from being nominated, because three or fewer candidates file. But that overlooks the greatest value of the nomination process: Many barely qualified candidates, who used to be able to claim seats based on their legislative connections alone, don’t even bother to run any more, because they know they won’t make the cut. Eliminate the nomination process, and they’ll flock back to the State House, and easily defeat better-qualified candidates.

The great irony of all this is that there is little reason to think the change will result in more black or female judges; it will simply result in more politically connected judges — who tend to be white men.

On the other hand, letting the governor appoint judges, from a list of candidates nominated by the Merit Selection Commission, stands an excellent chance of increasing diversity.

If lawmakers won’t try that, they could take the advice of Chief Justice Jean Toal and change the makeup of the selection commission, to increase its diversity and dilute the influence of legislators. Legislators still would elect judges from among the best candidates, and some legislators still would serve on the selection commission. But in cases where “best” is subjective, a different set of values would be applied to defining it.

Neither approach is guaranteed to increase the number of judges with different life perspectives. But both will preserve the quality of judges. And that’s at least as important.

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