Vanderbilt University Law School

Public Law and Legal Theory

Working Paper Number 0 9 -2 2

The Politics of M erit Selection

Brian T. Fitzpatrick

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The Politics of M erit Selection

Brian T. Fitzpatrick*

I. INTRODUCTION

In this Article, I undertake an evaluation of a method of judicial selec-

WLRQLQXVHLQPDQ\VWDWHVWKDWLVNQRZQDV³PHULWVHOHFWLRQ´7KHPHULWV\s-
tem is distinctive from the other systems of judicial selection in use today in
the powerful role it accords lawyers and, in particular, state bar associations.1
Proponents of the merit system contend that it is superior to the other forms
of judicial selection ± elections or appointment by elected officials ± because
state bar associaWLRQVDUHPRUHOLNHO\WRVHOHFWMXGJHVRQWKHEDVLVRI³PHULW´
DQG OHVV OLNHO\ WR VHOHFW MXGJHV RQ WKH EDVLV RI ³SROLWLFV´ WKDQ DUH YRWHUV RU
elected officials.2 In this Article, I explain why I believe these claims are
overstated.

* Assistant Professor of Law, Vanderbilt University Law School. J.D., 2000,

Harvard Law School. I am grateful to Paul Edelman, Christopher Guthrie, Richard
Nagareda, Suzanna Sherry, and many of the participants at this symposium for their
helpful comments on earlier drafts of this paper. I am also indebted to many people
for providing countless hours of research assistance for this paper, including Ben
Bolinger, David Dunn, Christopher Lantz and Jessica Pan at Vanderbilt Law School,
Roman Hankins at the University of Tennessee College of Law, and Justin Smith at
the University of Missouri School of Law. In addition, I am grateful to the Missouri
Appellate Judicial Commission and the Tennessee Administrative Office of Courts
for providing me important data regarding the merit commissions in those states.
Finally, I am grateful to Tory Lewis, who, in addition to providing research assis-
tance, originally compiled the data found in Table 1 for a class at Vanderbilt Law
School. Research for this paper was supported by the Federalist Society for Law and
Public Policy.
1. See F. Andrew Hanssen, On the Politics of Judicial Selection: Lawyers and
State Campaigns for the Merit Plan, 110 PUB. CHOICE    ³>7@KH PHULW
plan gives state bar associations a degree of influence in the choice of judicial candi-
date unmatched under any other selection procedure. Lawyers support it, according-
O\´ ,XVHWKHWHUP³VWDWHEDUDVVRFLDWLRQ´WKURXJKRXWWKLV$UWLFOHLQWKHEURDGVHQVH
to meaQPHPEHUVRIDVWDWH¶VEDU6RPHPHULWV\VWHPVUHO\RQWKHHQWLUHEDUWRVHOHFW
judges, and other systems rely only on those bar members who have joined voluntary
bar organizations.
2. See, e.g., Henry R. Glick, The Promise and the Performance of the Missouri
Plan: Judicial Selection in the Fifty States, 32 U. MIAMI L. REV. 509, 513 (1978)
QRWLQJWKDWSURSRQHQWVDVVHUWWKDWPHULWV\VWHPV³ZLOOVKLIWHPSKDVLVDZD\IURPSDr-
tisan to proIHVVLRQDOTXDOLILFDWLRQVIRUWKHMXGLFLDORIILFH´TENN.  CODE.  ANN. § 17-4-
D³,WLVWKHGHFODUHGSXUSRVHDQGLQWHQWRIWKHJHQHUDODVVHPEO\E\ WKH
SDVVDJH RI WKLV >PHULW V\VWHP@    WR PDNH WKH FRXUWV µQRQSROLWLFDO¶´ - $QGUHZ
Crompton, Commentary: Pennsylvanians Should Adopt a Merit Selection System, 106
DICK. L. REV. 755, 765 (2002) (suggesting that merit selection limits the role of poli-

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676 MISSOURI LAW REVIEW [Vol. 74

Although it is not always clear what proponents of merit selection mean

ZKHQWKH\XVHWKHZRUG³SROLWLFV´LQWKLVFRntext, I take their primary claim to
be that state bar associations are less inclined to examine the personal ideo-
logical preferences of judicial candidates than are voters or elected officials;
i.e., state bar associations are less concerned with whether a candidate is a
Republican or a Democrat, a conservative or a liberal. I am skeptical of this
claim. Even if bar associations are better able to identify more intelligent or
more qualified judges than are voters or public officials, it does not follow
that they are less inclined to consider the political beliefs of judicial candi-
dates. In my view, state bar associations are just as likely to be concerned ± if
not more concerned ± with the decisional propensities of judicial candidates
DV DUH YRWHUV DQG HOHFWHG RIILFLDOV  0RUHRYHU LQVRIDU DV D MXGJH¶V SHUVRQDO
ideological preferences are correlated with his or her decisions, and insofar as
those preferences are often more easily observed than his or her decisional
propensities, it is hard for me to believe that state bar associations accord
those preferences any less weight than voters or elected officials when they
select judges. In short, I am skeptical that merit selection removes politics
from judicial selection. Rather, merit selection may simply move the politics
of judicial selection into closer alignment with the ideological preferences of
the bar.
It is important to note that this movement might occur even if state bar
associations do completely ignore the personal ideological preferences of
judicial candidates. If the distribution of ideological preferences among law-
yers differs from the distribution among the public, then a method of selec-
tion that does not select for ideology in the way that elections and political
appointment do so may simply replicate the ideological distribution among
the bar. This will move the politics of the judiciary into closer alignment
with the ideological preferences of the bar and away from the preferences of
the public in the same way it would if state bar associations were trying to
find judges who shared their ideological preferences.
But is the distribution of ideological preferences within the bar different
from the distribution among the public? Many people believe ± and there is
some empirical evidence to support these beliefs ± that lawyers as a group
are, on average, more liberal (in the contemporary political sense ± i.e., asso-
ciated more closely with policy positions held by the Democratic Party) than
are members of the general public. If this is true, then, for the reasons noted
above, one would expect that bar associations would select judges who are
more liberal than those who would have been selected by the public or their
elected representatives. Although far from conclusive, I collected data on the

tics in the judicial selection process); Mark I. Harrison et al., On the Validity and
9LWDOLW\ RI $UL]RQD¶V -XGLFLDO0HULW 6HOHFWLRQ 6\VWHP 3DVW 3UHVHQW DQG )XWXUH, 34
FORDHAM URB. L.J. 239, 256 (2007) (arJXLQJWKDWPHULWVHOHFWLRQ³LVDOPRVWHQWLUHO\
transpaUHQW H[DFWLQJ DQG YLUWXDOO\ GHYRLG RI SROLWLFDO LQIOXHQFH´ 6WHYHQ =HLGPDQ
Judicial Politics: Making the Case for Merit Selection, 68 ALB. L. REV. 713, 720
(2005) DVVHUWLQJWKDWPHULWV\VWHPVDUH³IRUVXUHOHVVSROLtLFDO´

Electronic copy available at: http://ssrn.com/abstract=1491211

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2009] POLITICS OF MERIT SELECTION 677

judicial nominations in two merit states, Tennessee and Missouri, and the
data is consistent with this hypothesis.
In Part II of this Article, I explain the origins and nature of the merit sys-
tems used in the United States. In Part III, I examine the claim that merit
systems remove politics from the judiciary, showing how Legal Realism casts
doubt on this claim. In Part IV, I explore how the political views of the bar
might differ from those of the public at large, and I ask whether the propo-
nents of merit selection can justify a system that produces judges who reflect
the ideological preferences of the bar rather than the preferences of the electo-
rate.

II. THE ORIGINS AND NATURE OF MERIT SELECTION

The merit system was first conceived during the Progressive Era in the
early twentieth century.3 Prior to this time, judges in America had been se-
lected either by elected officials or by the public in elections.4 Like other

3. See SUSAN B. CARBON & LARRY C. BERKSON, JUDICIAL RETENTION

ELECTIONS IN THE UNITED STATES 2-4 (1980) (describing the various merit plans
considered during the early twentieth century).
4. At the time of the founding, every state selected its judges through executive
or legislative appointment. See EVAN HAYNES, THE SELECTION AND TENURE OF
JUDGES   ³>,@Q HLJKW RI WKH WKLUWHHQ VWDWHV WKH MXGJHV ZHUH HOHFWHG E\ WKH
legislature. In tKHUHPDLQLQJILYHWKH\ZHUHDSSRLQWHGE\WKHJRYHUQRU´/DUU\
C. Berkson, Judicial Selection in the United States: A Special Report, 64 JUDICATURE
   ³$IWHU WKH5HYROXWLRQ WKHVWDWHV FRQWLQXHG WR VHOHFWMXGJHV E\ Dp-
pointment . . . ´%\WKHWLPHRIWKH&LYLO:DUKRZHYHUWKHYDVWPDMRULW\RIVWDWHV
had changed their method of judicial selection to direct election by the people. See
Berkson, supra, at 176 ³%\WKHWLPHRIWKH&LYLO:DURIVWDWHVKDGHVWDEOLVKHG
an elected MXGLFLDU\ZLWKVHYHQVWDWHVDGRSWLQJWKHV\VWHPLQDORQH´$FFRUd-
ing to historians, the reason so many states switched from appointment to election
GXULQJWKHILUVWKDOIRIWKHQLQHWHHQWKFHQWXU\ZDVDFKDQJHLQWKHFRXQWU\¶VDWWLWXGH
about democracy ± DFKDQJHWKDWJUHZRXWRIWKHSRSXOLVPRI$QGUHZ-DFNVRQ¶VSUHs-
idency. See RepubliFDQ3DUW\RI0LQQY:KLWH86³6WDUWLQJ
with Georgia in 1812, States began to provide for judicial election, a development
rapidly accelerated by JackVRQLDQ GHPRFUDF\´ CHARLES H. SHELDON & LINDA S.
MAULE, CHOOSING JUSTICE: THE RECRUITMENT OF STATE AND FEDERAL JUDGES 4
QRWLQJWKDW³WKH-DFNVRQLDQPRYHPHQWHQFRXUDJHGPRUHSRSXODUFRQWURO
RIMXGJHV´Berkson, supra, at 176 (noting WKDWSHRSOH³ZHUHGHWHUPLQHGWRHQG>WKH@
privilege of the upper class and to ensure the popular sovereignty we describe as
-DFNVRQLDQ 'HPRFUDF\´ 5DFKHO 3DLQH &DXILHOG How the Pickers Pick: Finding a
Set of Best Practices for Judicial Nominating Commissions, 34 FORDHAM URB. L.J.
³6WDWHVEHJDQWRPRYHDZD\IURPDSSRLQWLYHVHOHFWLRQPHWKRGVLQ
the mid-1800s with the rise of Jacksonian democracy and its emphasis on democratic
accountability, individual equality, and direct voter participation in governmental
decision-PDNLQJ´
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678 MISSOURI LAW REVIEW [Vol. 74

Progressive Era reforms,5 merit selection was designed to remove govern-

ment decision-making from electoral control and place it instead in the hands
RI³H[SHUWV´6 7KH³H[SHUWV´LGHQWLILHGE\SURJUHssives to select judges were
lawyers and, in particular, state bar associations.7 It is therefore unsurprising
that bar associations, including the largest of them all, the American Bar As-
sociation, were the primary advocates of the merit system when it was first
conceived8 and remain the primary advocates today.9 The first state to adopt
the merit system was Missouri in 1940.10 Since then, a large number of states
have adopted the system for one or more of their courts. Indeed, with respect
to the highest courts in each state, which will be the focus of this Article,
twenty-four states and the District of Columbia have adopted the system,
making it the most prevalent system of judicial selection in use in the United
States today.11
Although there are differences among the merit systems that these states
have adopted for their highest courts, most of the systems are similar in at
least two respects. First, with regard to initial selection, in all of the systems
judges are appointed to the bench by the governor from a list of names sub-
mitted by a nominating commission.12 Second, at some point after appoint-
ment in most of the systems, judges must come before the public in an uncon-
tested referendum through which voters can remove the judges from the

5. See, e.g., RICHARD C. BOX, DEMOCRACY AND PUBLIC ADMINISTRATION 69

(2006) ³>T]he proper role of citizens was to . . . rally round [sic] the quest for . . .
exSHUW>V@´-DPHV:(O\-U Reflections on Buchanan v. Warley, Property Rights,
and Race, 51 VAND. L. REV.   QRWLQJ WKH ³3URJUHVVLYH IRQGQHVVIRU
. . . reliance on exSHUWV´
6. See, e.g., Luke Bierman, Beyond Merit Selection, 29 FORDHAM URB. L.J.
851, 854 (2002) (noting that the reform movement in the Progressive Era was based
RQ WKH KRSH WKDW ³H[SHUWV UDWKHU WKDQ YRWHUV ZRXOG EH UHVSRQVLEOH IRU VHOHFWLQJ
MXGJHV´
7. See id. at 854.
8. See id. DW³0HULWVHOHFWLRQZDVHQGRUVHGE\WKH$PHULFDQ%DU$VVRFLa-
tion in 1937, prompting several bar associations to investigate merit selection as a
possibility in their own jurisGLFWLRQV´
9. Hanssen, supra QRWHDW³1DWLRQDOHIIRUWVWRLPSOHPHQWWKHPHULWSODQ
LQVWDWHFRXUWVKDYHEHHQFRQGXFWHGE\QDWLRQDOODZ\HUV¶JURXSVZKLOHVWate bar asso-
ciations and individual lawyers have conducted state-VSHFLILFFDPSDLJQV´
10. CARBON & BERKSON, supra note 3, at 11.
11. See AM. JUDICATURE SOC¶Y, JUDICIAL SELECTION IN THE STATES: APPELLATE
AND GENERAL JURISDICTION COURTS (2007), available at http://www.ajs.org/selection
/docs/Judicial%20Selection%20Charts.pdf (listing the states that use merit selection
to select judges to their highest courts). Fewer states have adopted merit systems to
select lower court judges. Id.
12. See AM. JUDICATURE SOC¶Y, JUDICIAL NOMINATING COMMISSIONS,
http://www.judicialselection.us/judicial_selection/methods/judicial_nominating_com
PLVVLRQVFIP"VWDWH  ODVW YLVLWHG )HE   GHVFULELQJ KRZ HDFK VWDWH¶V QRPi-
nating commission must provide a list of nominees to the governor or, in the District
of Columbia, to the President).
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2009] POLITICS OF MERIT SELECTION 679

bench.13 As explained below, relative to the other methods of selection in use

today ± elections and appointment by elected officials ± both of these aspects
of merit systems transfer power over judicial selection from the electorate to
the bar.
First, with respect to initial selection, merit systems transfer power to
the bar through the composition of the commission that selects the nominees
from which the governor must make the appointment. In the vast majority of
merit systems, lawyers are required by law to be well represented on these
commissions. For example, in Tennessee (at least until recent changes to the
system take effect14), over 80% of the selection commission ± fourteen of
seventeen members ± must be lawyers.15 Although no state requires lawyers
to comprise a greater portion of its commission than does Tennessee, as Table
1 indicates, many other merit states are not far behind; the vast majority of
merit states require at least half of the members of the commission to be law-
yers or judges.
It is important to note that the lawyers who serve on merit commissions
are not just any lawyers; they are usually lawyers selected by bar associa-
tions. That is, they are lawyers selected by the legal profession. For exam-
ple, in Tennessee (again, until recent changes take effect), twelve of the four-
teen lawyer members on the commission can come only from individuals
nominated by five special bar associations.16 As Professor Stephen Ware
chronicled in a recent article, Tennessee is not alone in privileging the bar in
this way: nearly all merit-selection states delegate to bar associations the au-
thority to fill some or all of the lawyer seats on the commissions, either by
directly selecting members for the commission or by controlling the list of
names from which elected officials must select members.17 Table 2 shows
the percentage of lawyer commission members in each merit state under ei-
ther the direct or indirect control of state bar associations.

13. See id.

14. See Monica Mercer, Judicial Nominating Commission to Meet for First
Time, CHATTANOOGA TIMES FREE PRESS 6HSW³>7@KH/HJLVODWXUHYRWHGWR
keep the plan but reinvent the way in which the nominating committee is selected.
The new commission takes away mandated appointments to the commission by vari-
ous legal and special-interest groups such as the state bar associaWLRQ´
15. See TENN. CODE ANN. § 17-4-102(a)(5) (noWLQJWKDW³>W@KUHHPHPEHUV
VKDOOQRWEHODZ\HUV´
16. See TENN. CODE ANN. § 17-4-102(a)(1)-(4) (2008) (requiring commissioners
to come from nominations made by the Tennessee Bar Association, the Tennessee
Defense Lawyers Association, the Tennessee Trial Lawyers Association, the Tennes-
see District Attorneys General Conference, and the Tennessee Association of Crimi-
nal Defense Lawyers).
17. See Stephen J. Ware, Selection to the Kansas Supreme Court, 17 KAN. J.L. &
PUB. POL¶Y 386, 387-88 (2008) (comSDULQJ WKH EDU¶V LQIOXHQFH RYHU D YDULHW\ RI
VWDWHV¶MXGLFLDOQRPLQDWLQJFRPPLVVLRQV
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680 MISSOURI LAW REVIEW [Vol. 74

Table 1: M inimum number of lawyers required by law on merit

commissions responsible for the highest state court

State Total Number of Number of Number Minimum percen-

number lawyer non-lawyer of judges tage that by law
of mem- members members by by law must be lawyers or
bers by law law judges
TN 17 14 3 0 82%
NM 14 8 3 3 79%
SD 7 3 2 2 71%
FL 9 6 to 9 0 to 3 0 67%
AK 7 3 3 1 57%
DC 7 3 to 4 2 to 3 1 57%
IN 7 3 3 1 57%
MO 7 3 3 1 57%
WY 7 3 3 1 57%
DE 9 5 4 0 56%
KS 9 5 4 0 56%
NE 9 4 4 1 56%
NH 11 6 5 0 56%
CO 15 7 7 1 53%
IA 15 7 7 1 53%
CT 12 6 6 0 50%
OK 13 6 7 0 46%
VT 11 5 6 0 45%
RI 9 4 to 5 4 to 5 0 44%
AZ 16 5 10 1 38%
UT 8 2 to 4 3 to 5 1 38%
NY 12 4 to 8 4 to 8 0 33%
MD 17 5 to 17 0 to 12 0 29%
HA 9 2 to 4 5 to 7 0 22%
MA 21 any/all 0%
The source materials for this table can be found in the footnote below. 18

18. This table is drawn from information gathered by the American Judicature
Society, supra note 12, from the following state legal materials: ALASKA CONST. art.
IV, § 8; ARIZ. CONST. art. VI, § 36; COLO. CONST. art. VI, § 24; HAW. CONST. art. VI,
§ 4; IOWA CONST. art. V, § 16; MO. CONST. art. V, § 25(d); NEB. CONST. art. V, §
21(4); N.M. CONST. art. VI, §§ 35-36; OKLA. CONST. art. 7-B, § 3; WYO. CONST. art.
V, § 4(c); CONN. GEN. STAT. § 51-44a; D.C. CODE § 1-204.34; FLA. STAT. § 43.291;
IND. CODE §§ 33-27-2-1 to -2; KAN. STAT. ANN. § 20-120; R.I. GEN. LAWS § 8-16.1-2;
S.D. CODIFIED LAWS § 16-1A-2; TENN. CODE ANN. § 17-4-102; UTAH CODE ANN. §
78A-10-202; VT. STAT. ANN. tit. 4, § 601; Md. Exec. Order No. 01.01.2008.04 (Mar.
13, 2008); Mass. Exec. Order No. 500 (Mar. 13, 2008); N.H. Exec. Order No. 2005-
02 (Feb. 25, 2005); N.Y. Exec. Order No. 4 (Jan. 1, 2007).
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2009] POLITICS OF MERIT SELECTION 681

Table 2: Percentage of lawyer members on merit commissions who

are controlled by state bar associations

State Total number of Number of lawyer Minimum percentage of

lawyer mem- members by law lawyer members by law
bers on the me- controlled by bar controlled by bar
rit commission associations associations
AK 3 3 100%
AZ 5 5 100%
IN 3 3 100%
IA 7 7 100%
KS 5 5 100%
MO 3 3 100%
NE 4 4 100%
OK 6 6 100%
SD 3 3 100%
WY 3 3 100%
TN 14 12 86%
VT 5 3 60%
DC 3 to 4 2 50%
HA 2 to 4 2 50%
NM 8 4 50%
FL 6 to 9 4 44%
MD 5 to 17 5 29%
DE 5 1 20%
CO 7 0 0%
CT 6 0 0%
MA 0 to 21 0 0%
NH 6 0 0%
NY 4 to 8 0 0%
RI 4 to 5 0 0%
UT 2 to 4 0 0%
The source materials for this table can be found in the footnote below.19

19. This table is drawn from information gathered by the American Judicature
Society, supra note 12, from the following state legal materials: ALASKA CONST. art.
IV, § 8 (the three lawyer members are appointed by the board of governors of the
Alaska Bar Association); ARIZ. CONST. art. VI, § 36; IND. CODE § 33-27-2-1 to -2
(one lawyer member is selected from each district by the members of the bar in that
district); IOWA CONST. art. V, § 16 (one lawyer member is selected from each district
by the members of the bar in that district); KAN. STAT. ANN. § 20-120 (one lawyer
member is selected from each of the four congressional districts by the members of
the bar in that district, and one chairperson is selected by the state bar); MO. CONST.
art. V, § 25(d) (lawyer members are elected by the state bar); NEB. CONST. art. V, §
21(4) (lawyer members are elected by the state bar); OKLA. CONST. art. 7-B, § 3 (law-
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682 MISSOURI LAW REVIEW [Vol. 74

The retention device in merit systems likewise transfers power from the
electorate to bar associations. Unlike states that rely on contested elections or
reappointment by elected officials to decide whether judges should remain on
the bench, states with merit systems usually rely on an innovation called a
retention referendum.20 Although proponents of merit systems often describe

yer members are elected by the state bar); S.D. CODIFIED LAWS § 16-1A-2 (lawyer
members are appointed by the president of the South Dakota Bar Association); WYO.
CONST. art. V, § 4(c) (lawyer members are elected by the state bar); TENN. CODE
ANN. § 17-4-102 (six lawyer members are appointed by the Speaker of the Senate
from a list of nominees provided by the Tennessee Bar Association and other lawyer
associations, and six lawyer members are appointed by the Speaker of the House from
the same list; the Speakers also select two lawyer members who were not otherwise
nominated); VT. STAT. ANN. tit. 4, § 601 (the three lawyer members are elected by
³>D@WWRUQH\V    DGPLWWHG WR SUDFWLFH EHIRUH WKH VXSUHPH FRXUW RI 9HUPRQW´ D.C.
CODE § 1-204.34 (two lawyer members are appointed by the D.C. Bar Association,
one lawyer member is appointed by the mayor of D.C., and one member ± either
lawyer or nonlawyer ± is appointed by the President of the United States); HAW.
CONST. art. VI, § 4; N.M. CONST. art VI, §§ 35-36 (four lawyer members are ap-
pointed jointly by the president of the New Mexico Bar Association and the judge
members of the commission); FLA. STAT. § 43.291 (four lawyer members are nomi-
nated by the state bar and appointed by the governor); Md. Exec. Order No.
01.01.2008.04 (Mar. 13, 2008) (five lawyer members are submitted to the governor
for appointment by the president of the Maryland Bar Association); AM. JUDICATURE
SOC¶Y, supra note 12 (one lawyer member is appointed by the Delaware Bar Associa-
WLRQSUHVLGHQWZLWKWKHJRYHUQRU¶VFRQVHQWDQGIRXUODZ\HUPHmbers are appointed by
the governor); COLO. CONST. art. VI, § 24 (the seven lawyer members are selected by
a majority vote of the governor, chief justice, and state attorney general); CONN. GEN.
STAT. § 51-44(a) (the six lawyer members are appointed by the governor); Mass.
Exec. Order No. 500 (Mar. 13, 2008) (all twenty-one members of the commission are
appointed by the governor); N.H. Exec. Order No. 2005-02 (Feb. 25, 2005) (the six
lawyer members are appointed by the governor); N.Y. Exec. Order No. 4 (Jan. 1,
2007) (two lawyer members are chosen by governor, and two are chosen by the chief
judge of the court of appeals; the president pro tempore, speaker of the assembly,
minority leader of the assembly, and minority leader of the senate each select one
member, either a lawyer or nonlawyer); R.I. GEN. LAWS § 8-16.1-2 (the governor
appoints three lawyer members and selects one additional lawyer member from a list
of three lawyers submitted by the speaker of the house; the governor appoints an
additional member (either a lawyer or nonlawyer) from a list submitted by the senate
majority leader); UTAH CODE ANN. § 78A-10-202 (lawyer members are appointed by
the governor).
20. Even in the several merit states that do not rely on uncontested referenda to
retain judges, the retention mechanisms they do use likewise appear to facilitate the
transfer of power from the electorate to the bar. These mechanisms do so either by
drawing on the bar-selected commission during reappointment or by enhancing the
LPSRUWDQFHRIWKHEDU¶VUROHLQ the initial selection by permitting judges to serve only
one term. For example, in Hawaii, the merit commission alone decides whether to
retain an incumbent, and, in three other merit states ± Connecticut, Delaware, and
New York ± judges must be re-nominated to the governor by the merit commission.
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2009] POLITICS OF MERIT SELECTION 683

the retention referendum as a source of democratic accountability,21 scholars

have questioned this claim.22 To begin with, scholars have noted that the
design of retention referenda leaves voters with very little information about
judicial candidates: without another candidate in the race, there is no one with
an interest in providing information to the public about the incumbent.23
Moreover, retention referenda are conducted without partisan affiliation on
the ballot, and political trademarks are often the most important pieces of
information relied upon by voters.24 Finally, because voters have no idea
who will replace an incumbent if they vote against retention, some commen-
tators believe that risk aversion on the part of voters makes them reluctant to

See AM. JUDICATURE SOC¶Y, supra note 12. In three other merit states ± Massachu-
setts, New Hampshire, and Rhode Island ± judges are permitted to serve only one
term. See id. The two non-referenda states with mechanisms that do not appear to
facilitate the transfer of power from the electorate to the bar are Vermont, where the
legislature decides whether to retain judges, and New Mexico, where judges run the
first time they are up for retention in a partisan election (but thereafter they are subject
only to uncontested referenda). See id.
21. See, e.g., Jeffrey D. Jackson, Beyond Quality: First Principles in Judicial
Selection and Their Application to a Commission-Based Selection System, 34
FORDHAM URB. L.J. 125, 133 (2007) (arguing that retention elections provide accoun-
tability).
22. Indeed, some scholars have suggested that retention referenda may have
actually been designed to insulate judges from democratic accountability. These
scholars have noted that the architects of the merit system actually favored life tenure
for judges, but they suspected the public would balk at being entirely excluded from a
role in choosing such important public officials. See id. (acknowledging that, al-
though the ABA preferred good behavior tenure, it believed that retention elections
might be necessary for maintaining public confidence); G. Alan Tarr, Do Retention
Elections Work?, 74 MO. L. REV. 605, 609 (2009) (noting that the retention referen-
GXP ³ZDV QRW D IXQGDPHQWDO IHDWXUH´ RI WKH PHULW SODQ EXW UaWKHU ³was originally
offered only to quiet the fears . . . of devotees of the elective method´ These scho-
lars believe that the architects of merit selection devised the retention referendum to
approximate life tenure without the appearance of life tenure. See CARBON &
BERKSON, supra note 3, at 6-8 (noting that ³PDQ\SURSRQHQWV of the commission plan
ZRXOGKDYHSUHIHUUHGJRRGEHKDYLRUWHQXUHLQOLHXRIUHWHQWLRQHOHFWLRQV´DQG³>W@KH\
SHUFHLYHG UHWHQWLRQ DV D µVRS¶ WR WKRVH FRPPLWWHG WR HOHFWRUDO FRQWURO RYHU WKH MXGi-
FLDU\´; Michael R. Dimino, The Futile Quest for a System of -XGLFLDO³0HULW´6HOHc-
tion, 67 ALB. L. REV. 803, 806 (2004) (³0HULWVHOHFWLRQXVHVWKHSXEOLFDVSDUWLFLSDQWV
in what is predetermined to be a useless exercise designed to ensure the retention of
the inFXPEHQW´
23. See, e.g., Dimino, supra note 22DW³%\UHPRYLQJFKDOOHQJHUVIURPWKH
ballot, retention races eliminate the public figures most likely to motivate and organ-
ize opposition to the incumEHQW´
24. 3ROLWLFDOVFLHQWLVWVEHOLHYH³WKDWWKHPRVWLPportant cue for voters is political
SDUW\DIILOLDWLRQ3DUW\ODEHOVDUHVLJQDOVDQGYRWHUVUHO\KHDYLO\RQWKHP´+Hr-
bert M. Kritzer, Law is the Mere Continuation of Politics by Different Means: Ameri-
can Judicial Selection in the Twenty-First Century, 56 DEPAUL L. REV. 423, 433
(2007) (footnote omitted).
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684 MISSOURI LAW REVIEW [Vol. 74

YRWHDJDLQVWDQLQFXPEHQWLQRWKHUZRUGV³WKHGHYLO\RXNQRZLVSUHIHUable
WRWKHGHYLO\RXGRQ¶W´25
Political scientists often rely on incumbent loss rates as a measure of
how successfully elections promote public control of government officials,26
and, in light of the design features of retention referenda, it is not entirely
surprising that, at least by this measure, they pale in comparison to contested
elections. Incumbent high-court judges are returned to the bench 99% of the
time across the country when they run in retention referenda.27 This is in
sharp contrast with the retention rates of incumbent judges in states that use
contested elections. One comprehensive study of state supreme court races
between 1980 and 2000 showed that justices running for reelection in states
that use partisan elections were defeated nearly 23% of the time ± a full thir-
teen times as often as justices running in retention referenda over the same
period.28 As the author of that study has noted, in states that use contested
HOHFWLRQV ³VXSUHPH FRXUW MXVWLFHV IDFH FRPSHWLWLRQ WKDW LV E\ WZR RU WKUHH
PHDVXUHVHTXLYDOHQWLIQRWKLJKHUWRWKDWIRUWKH86+RXVH´29
In short, merit systems provide something approaching life tenure to the
judges initially appointed by governors through the merit commissions. This
transfers power over judicial selection to bar associations by insulating their
initial selections from removal. As two VFKRODUV KDYH SXW LW ³WKRVH ZKR
maintain that retention elections serve to insulate judges from popular control
VHHPWREHFRUUHFW´30

25. See HARRY P. STUMPF, AMERICAN JUDICIAL POLITICS ³<RXFDQ¶W
beat someERG\ZLWKQRERG\´
26. See generally, e.g., Melinda Gann Hall & Chris W. Bonneau, Does Quality
Matter? Challengers in State Supreme Court Elections, 50 AM. J. OF POL. SCI. 20
(2006) (using incumbent loss rates DVDPHDVXUHRI³SRSXODUFRQWURORYHUWKHEHQFK´).
27. See Larry Aspin, Trends in Judicial Retention Elections, 1964 ± 1998, at 83
JUDICATURE 79, 79 & n.1 (1999) (finding that in 4,588 retention referenda in a sample
of ten states over thirty-four years, only fifty-two judges were not retained).
28. See Melinda Gann Hall, Competition as Accountability in State Supreme
Court Elections, in RUNNING  FOR   JUDGE 165, 177 (Matthew Streb ed., 2007) (finding
that 22.9% of state supreme court incumbents were defeated in partisan elections
while only 1.8% of incumbents were defeated in retention referenda between 1980
and 2000).
29. Melinda Gann Hall, State Supreme Courts in American Democracy: Probing
the Myths of Judicial Reform, 95 AM. POL. SCI. REV. 315, 319 (2001).
30. William K. Hall & Larry T. Aspin, What Twenty Years of Judicial Retention
Elections Have Told Us, 70 JUDICATURE 340, 347 (1987).
File: Fitzpatrick Created on: 10/5/2009 11:03:00 AM Last Printed: 10/8/2009 12:53:00 PM

2009] POLITICS OF MERIT SELECTION 685

III. MERIT SELECTION AND LEGAL REALISM

One of the primary justifications offered in favor of merit systems over

other systems of selecting judges is that merit systems choose judges more on
WKHEDVLVRIWKH³PHULWV´DQGOHVVRQWKHEDVLVRI³SROLWLFV´31 It is often not
entirely clear what proponents of merit selection mean when they use the
ZRUGV ³PHULW´ DQG ³SROLWLFV´ LQ this context, but most proponents appear to
mean that merit commissions are more inclined to select judges on the basis
of some measure of their legal acumen and less inclined to consider the per-
sonal ideological preferences of judicial candidates.32
Although scholars have yet to find much, if any, evidence to support the
first half of this claim,33 I am willing to accept it, at least vis-à-vis judicial

31. See, e.g., sources cited supra note 2 (arguing inter alia that merit selection
leads to less emphasis on politics and more emphasis on merit); see also Marilyn S.
Kite, WyomLQJ¶V-XGLFLDO6HOHFWLRQ6\VWHP,VLW*HWWLQJWKH-RE'RQH", 34 FORDHAM
URB. L.J. 203, 204 (2007) (contending that merit selection focuses on merit and objec-
tive qualificaWLRQVRIMXGJHVDQGLJQRUHVMXGJHV¶SROLWLFDODQGSHUVRQDOFRQQHFWLRQV
James E. Lozier, The Missouri Plan a/k/a Merit Selection Is the Best Solution for
6HOHFWLQJ 0LFKLJDQ¶V -XGJHV", 75 MICH. B.J. 918, 921 (1996) (writing that merit
VHOHFWLRQ³HQVXUHVWKDWWKHPRVWTXDOLILHGLQGLYLGXDOVDUHDSSRLQWHGWRWKHEHQFKZLWh-
RXW RZLQJ DQ\ SROLWLFDO IDYRUV´ 7LP 'DOODV 7XFNHU  &KULVWLQD / )LVFKHU Merit
Selection: A Better Method to Select SouWK'DNRWD¶V&LUFXLW&RXUW-XGJHV, 49 S.D. L.
REV. 182, 204 (2004) ³Merit selection provides for a system where merit . . . [and]
QRWPRQH\DQGSROLWLFVGHWHUPLQH>V@ZKRZLOOEH6RXWK'DNRWD¶VMXGJHV´3HWHU'
Webster, Selection and Retention of Judges,V7KHUH2QH³%HVW´0HWKRG", 23 FLA.
ST. U. L. REV. 1, 33 n.223 (1995) (reporting the results from a study of New York City
MXGJHVWKDWIRXQGWKDWPHULWVHOHFWLRQSURGXFHVD³KLJKO\TXDOLILHGDQGPRUHSROLWLFDl-
O\GLYHUVHMXGLFLDU\´
32. See id. Another SRVVLEOHPHDQLQJRI³SROLWLFV´EHVLGHVWKHLGHRORJLFDOSUH-
ferencHV RI MXGLFLDO FDQGLGDWHV LV ³SROLWLFNLQJ´ SURSRQHQWV PLJKW PHDQ RQO\ WKDW
judicial candidates need not campaign ± raise money, advertise, deliver speeches,
shake hands, etc. ± in order to win a spot on the bench. I consider this a weaker form
of the argument for merit selection because, although merit selection requires judges
to engage in less politicking than required in elections, it requires no less than systems
where judges are appointed by elected officials.
33. The most comprehensive study found that for a number of objective meas-
XUHVRI³PHULW´³PHULWVHOHFWLRQMXGJHVGRQRWSRVVHVVJUHDWHUMXGLFLDOFUHGHQWLDOVWKDQ
MXGJHV LQ RWKHU VWDWHV´  +HQU\ 5 *OLFN  &UDLJ ) (PPHUW Selection Systems and
Judicial Characteristics: The Recruitment of State Supreme Court Judges, 70
JUDICATURE 228, 233 (1987) (considering type of undergraduate and law school at-
tended, government, judicial and private practice experience, and number of years of
legal experience). A more recent study found that merit system judges author opin-
ions that are more often cited in other jurisdictions but that judges in other systems are
more productive than merit system judges. As a result, judges in merit systems are
actually cited less frequently overall in other jurisdictions than judges in other sys-
tems. See Stephen J. Choi, G. Mitu Gulati & Eric A. Posner, Professionals or Politi-
File: Fitzpatrick Created on: 10/5/2009 11:03:00 AM Last Printed: 10/8/2009 12:53:00 PM

686 MISSOURI LAW REVIEW [Vol. 74

elections. Lawyers are presumably better able to assess the legal acumen of
judicial candidates than are members of the general public, and, in light of the
heavy influence of bar associations in merit systems, it seems perfectly plaus-
ible that merit systems would be superior to elections at identifying judges
ZKRDUHLQVRPHVHQVH³EHWWHUTXDOLILHG´,DPOess willing, however, to ac-
cept that merit systems are superior in this regard when compared to ap-
pointment by elected officials. Elected officials are often themselves lawyers,
and, when they are not, they often rely on lawyers to help them assess the
legal acumen of judicial candidates.
But even if we assume that merit systems do a better job of identifying
judicial candidates with the greatest legal acumen, it does not follow that the
bar-selected lawyers who sit on merit commissions will turn a blind eye to the
ideological preferences of those candidates. One can find bright lawyers of
every ideological stripe. To believe that politics is deemphasized in merit
systems, one would have to believe that the commissions who nominate can-
didates would exhibit greater indifference to whether a smart candidate is a
conservative or liberal than would elected officials or the public at large. I
am skeptical of this notion.
To begin with, it is hard to believe that the lawyers who select judges in
merit systems care less about the decisional propensities of judicial candi-
dates than do voters or elected officials. Not only do lawyers have opinions
about public policy they wish to vindicate as much as non-lawyers do, but the
lawyers who sit on these commissions also practice in front of the judges
they select. It is hard to believe that these lawyers care only about whether
the judges who hear their cases issue learned and scholarly opinions; surely
these lawyers also care about whether a judicial candidate will be inclined to
UXOHLQWKHLUIDYRU,QGHHGLIDODZ\HURQWKHFRPPLVVLRQLVDSODLQWLII¶VODw-
yer who works, as many do, on contingency, his or her very livelihood will be
wrapped up in how often, for example, a judicial candidate will be inclined to
dismiss cases or reduce damages awards. As I have written previously, law-
yers who serve on selection commissions would have to be superhuman not
to care about the decisional propensities of judicial candidates who come
before them,34 and the other scholars who have examined the inner workings
of merit systems tend to agree. For example, Professor Glick has found that

cians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary
17 (Univ. of Chi. Sch. of Law, John M. Olin Law & Econ. Working Paper No. 357,
2007), available at http://ssrn.com/abstract=1008989; RICHARD POSNER, HOW JUDGES
THINK 138 & n.18 (2008) (describing the Choi-Gulati-3RVQHUVWXG\WRILQGWKDW³VWDWH
supreme court justices receive more citations in judicial opinions from judges in other
VWDWHV WKH OHVV VHFXUH WKHLU WHQXUH LV´ EHFDXVH DOWKRXJK ³>W@KH DSSRLQWHG MXGJHV Ue-
ceive more citations per opinion, [t]he elected judges write more opinions, and the
relative number of opinions is greater than the relative number of citations per opi-
QLRQ´see also Glick, supra note 2, at 523-31 (surveying some of the earlier studies).
34. See Brian T. Fitzpatrick, Errors, Omissions, and the Tennessee Plan, 39 U.
MEM. L. REV. 85, 120 (2008).
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2009] POLITICS OF MERIT SELECTION 687

³>O@DZ\HU-representatives on nominating commissions are preoccupied with

WKHGHFLVLRQDOSURSHQVLWLHVRISRWHQWLDOMXGJHV´35
If we accept that the lawyers who serve on merit commissions care just
as much or even more about the outcomes of judicial decisions as do voters
and elected officials ± that is, they do not care simply about how well the
opinions in these cases are written and researched ± then it is but a short leap
to the conclusion that the lawyers on these commissions care just as much
about the personal ideological preferences of judicial candidates. I say this
because we have known for quite some time now that the decisions judges
make are correlated with their personal ideological preferences. This correla-
tion has been demonstrated over many years by both political scientists and
legal scholars. It has been demonstrated for United States Supreme Court
Justices,36 federal courts of appeals judges,37 federal district court judges,38
and state supreme court justices.39 It has been demonstrated across a broad

35. See Glick, supra note 2, at 528 (emphasis added).

36. See, e.g., JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND
THE ATTITUDINAL MODEL 245-55 (1993) (analyzing the ideological voting patterns of
Justices on the Warren, Burger, and Rehnquist courts); David Adamany, The Supreme
Court, in THE AMERICAN COURTS: A CRITICAL ASSESSMENT 5, 11 (John B. Gates &
&KDUOHV $ -RKQVRQ HGV  ILQGLQJ ³KLJKO\ FRQVLVWHQW LGHRORJLFDO YRWLQJ DQG
cOHDU LGHRORJLFDO GLYLVLRQV RQ IUHHGRP HTXDOLW\ DQG HFRQRPLF LVVXHV´ RQ WKH 6u-
preme Court in the 1980s); John B. Gates, Partisan Realignment, Unconstitutional
State Policies, and the U.S. Supreme Court, 1837-1964, 31 AM. J. POL. SCI. 259, 270-
71 (1987) (finding that the Court most often struck down statutes from states in which
the political majoriW\ZDVFRQWUDU\WRWKH-XVWLFHV¶SROLWLFDOPDMRULW\ Jeffrey A. Segal
& Albert D. Cover, Ideological Values and the Votes of U.S. Supreme Court Justices,
83 AM. POL. SCI. REV. 557, 562 (1989) (finding a correlation between ideological
values and civil liberties decisions by the U.S. Supreme Court); Thomas J. Miles &
Cass R. Sunstein, Depoliticizing Administrative Law 2 (Univ. of Harvard Pub. Law
Working Paper Group, Paper No. 08-16, 2008), available at http://ssrn.com/abstract=
GHVFULELQJWKH³KLJKO\LGHRORJLFDOYRWLQJSDWWHUQV´RQWKH6upreme Court).
37. See, e.g., FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF
APPEALS 38 (2007) (concluding in a study of voting patterns of court of appeals
judges that ideology is associated with judicial decision-making); CASS SUNSTEIN ET
AL., ARE JUDGES POLITICAL? AN EMPIRICAL ANALYSIS OF THE FEDERAL JUDICIARY 45
(2006) (concluding in a study of federal appellate MXGJHVWKDW³>L@QQXPHURXVDUHDVRI
the law, there is a substantial difference between the voting patterns of Republican
DQG'HPRFUDWLFDSSRLQWHHV´
38. See, e.g., C.K. ROWLAND & ROBERT A. CARP, POLITICS AND JUDGMENT IN
FEDERAL DISTRICT COURTS 40 (1996) (noting strong partisan divisions among district
judges in several areas of litigation).
39. See, e.g., Paul Brace & Melinda Gann Hall, Neo-Institutionalism and Dissent
in State Supreme Courts, 52 J. POL. 54, 66-67 (1990) (finding in a study of state su-
preme court death penalty decisions that justices respond differently to case facts
depending both on their individual partisan preferences and on the political climates
in which they operate).
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688 MISSOURI LAW REVIEW [Vol. 74

range of litigation areas, including administrative law,40 sovereign immuni-

ty,41 labor law,42 employment law,43 campaign finance,44 piercing the corpo-
rate veil,45 civil rights,46 criminal law,47 religion,48 and free speech.49
It should be noted that this correlation exists not because judges are in-
appropriately smuggling their personal preferences into the law; it exists be-
cause, as the Legal Realists taught us nearly 100 years ago, language is often
ambiguous.50 The Legal Realists famously demonstrated this in the early
twentieth century by showing that precedents,51 statutes,52 and constitutional
provisions53 can often be read in more than one way. Consequently, judges
often cannot render decisions based solely on legal texts; they must incorpo-
rate ± whether consciously or subconsciously ± other considerations in order
to resolve ambiguities.54 This is especially true of state court judges. Not
only do state court judges have the power to shape the vague commands of

40. See SUNSTEIN ET AL., supra note 37, at 25-28, 34, 37-38 (finding evidence of
ideological voting patterns among court of appeals judges in cases challenging envi-
ronmental regulations); Miles & Sunstein, supra note 36, at 2 (describing the Su-
SUHPH&RXUW¶VLGHRORJLFDOYRWLQJSDWWHUQVLQDGPLQLVWUDWLYHODZFDVHV
41. See SUNSTEIN ET AL., supra note 37, at 28-29.
42. See id. at 29-30; ROWLAND & CARP, supra note 38, at 40.
43. See SUNSTEIN ET AL., supra note 37, at 30-32, 35-36; ROWLAND & CARP,
supra note 38, at 40.
44. See SUNSTEIN ET AL., supra note 37, at 32-33.
45. See id. at 33-34.
46. See id. at 24-25, 36-37.
47. See id. at 54-57; ROWLAND & CARP, supra note 38, at 40.
48. See ROWLAND & CARP, supra note 38, at 40 (noting strong partisan divisions
among district judges in the areas of freedom of religion and freedom of expression).
49. See SUNSTEIN ET AL., supra note 37, at 32-33; ROWLAND & CARP, supra note
38, at 40.
50. See generally Kenneth Kress, Legal Indeterminacy, 77 CAL. L. REV. 283
(1989).
51. See Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the
Rules or Canons About How Statutes Are to be Construed, 3 VAND. L. REV. 395, 395-
96 (1949) (suggesting that judicial opinions usually can be interpreted in a variety of
ways).
52. See id. at 399 (setting forth his famous dueling canons of statutory interpreta-
tion).
53. See, e.g., ERWIN CHEMERINSKY, INTERPRETING THE CONSTITUTION 110
³7KHVHDUFKIRUGHWHUPLQDF\LVLQKHUHQWO\IXWLOH>$@WOHDVWVLQFHWKHWLPHRI
the legal realists at the beginning of this century, formalism has been regarded, almost
universally, as imSRVVLEOH´
54. See generally Frank B. Cross, Political Science and the New Legal Realism:
A Case of Unfortunate Interdisciplinary Ignorance, 92 NW. U. L. REV. 251 (1997).
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2009] POLITICS OF MERIT SELECTION 689

statutes and constitutions, but, much more so than their federal counterparts,
they also have the power to make common law.55
This correlation is important because it is often more difficult to observe
directly the decisional propensities of judicial candidates at the selection stage
± e.g., whether a candidate is inclined to dismiss cases or reduce damages
awards ± than it is to observe proxies for the ideological preferences of judi-
cial candidates. Judges can be asked specific questions about dismissing
cases, reducing damages awards, etc., and they can be asked to state their
general judicial philosophies. But there is no assurance that the candidates
will answer these questions honestly, and, as the federal judicial confirmation
process shows, candidates basically utter the same platitudes about judicial
decision-making regardless of their judicial philosophy.56 On the other hand,
LWLVRIWHQHDV\WRJHWDVHQVHRIDFDQGLGDWH¶VLGHRORJLFal preferences by ob-
serving whether he or she has been more involved in the Republican or Dem-
ocratic Party. Although involvement with one political party or the other is
only a proxy for the ideological preferences of a judicial candidate, the proxy
is strong enough that scholars have found correlations between the party affil-
iation of a judge and his or her decisions, including, to continue the example,
findings that Republican judges are more likely to side with corporate defen-
dants and dismiss certain types of cases than are Democratic judges.57
Although the studies demonstrating these correlations are not without
their limitations,58 and it is always difficult to infer causation from correla-
tion, it is important to note that it should be unimportant to the lawyers who
sit on merit commissions whether judicial decisions are actually influenced
by the personal ideological preferences of judges or whether those decisions
are instead influenced by something that is simply correlated with those pre-
ferences. To the extent the correlation between ideological preferences and
outcomes exists, the correlation is useful to anyone who wishes to predict the
decisions a judge will render; it is irrelevant for such purposes why the corre-
lation exists.
Thus, if we are willing to accept the notions that lawyers care about the
outcomes of judicial decisions and that these outcomes are correlated with
MXGJHV¶LGHRORJLFDOSUHIHUHQFHVWKHQZHPLJKWH[SHFW merit commissions to
select judges who share the ideological preferences of the bar rather than

55. See Republican Party of Minn. v. White, 536 U.S. 765, 784 (200 ³1RW
only do state-FRXUWMXGJHVSRVVHVV WKH SRZHU WRµPDNH¶ FRPPRQ ODZEXW WKH\ KDYH
the imPHQVHSRZHUWRVKDSHWKH6WDWHV¶FRQVWLWXWLRQVDVZHOO´
56. See Brian T. Fitzpatrick, Confirmation Kubuki Does No Justice, POLITICO
(July 20, 2009).
57. See SUNSTEIN ET AL., supra note 37, at 30-36 (finding that Democratic court
of appeals judges vote with plaintiffs more often than Republican judges in cases
involving sex discrimination, disability, sexual harassment, corporate veil-piercing,
and Title VII claims).
58. See Cross, supra note 54, at 279-309.
File: Fitzpatrick Created on: 10/5/2009 11:03:00 AM Last Printed: 10/8/2009 12:53:00 PM

690 MISSOURI LAW REVIEW [Vol. 74

those of the pubOLF :KHWKHU WKH EDU¶V LGHRORJLFDO SUHIHUHQFHV DUH GLIIHUHQW
from those of the public is a question I take up in the next Part.
Before turning to the next Part, however, it is important to note that, if it
is indeed true that lawyers as a group have different ideological preferences
than the public at large, then merit selection may produce this same shift in
the ideological direction of the judiciary even if the lawyers who sit on merit
commissions completely ignore the personal ideological preferences of the
judicial candidates who come before them. That is, because the public and its
elected representatives can ± and by the hypothesis of merit-selection propo-
nents do ± screen candidates to find judges who share their ideological prefe-
rences,59 a method of selection that does not select for ideology may simply
replicate the distribution of ideological preferences within the bar. If the dis-
tribution of preferences among lawyers differs from the distribution among
the public, then we would still expect to see the same shift in the ideological
direction of the judiciary toward the preferences of lawyers and away from
the preferences of the public.

IV. THE POLITICS OF THE ³/AWYER CLASS´

Are the ideological preferences of lawyers different from those of the

public at large? As with any group of people of a significant size, there is a
diversity of ideological views among individual lawyers. There are lawyers
who associate with the Democratic Party and lawyers who associate with the
Republican Party. There are lawyers who identify themselves as conserva-
tive, lawyers who identify themselves as liberal, and lawyers who call them-
selves neither.
Nonetheless, many people believe that lawyers are, on average, more
liberal than are the members of the general public. Justice Scalia, for exam-
ple, argued in his dissent in Romer v. Evans WKDW WKH ³ODZ\HU FODVV´ KROGV
more liberal views on social issues than does the public.60 More broadly, a
former head of the Federal Election Commission, pointing to larger campaign
contributions to Democratic candidates than Republican candidates, opined

59. See, e.g., Joanna M. Shepherd, Are Appointed Judges Strategic Too?, 58
DUKE L.J. ³$VHOHFWHG MXGJHV¶SULPDU\FRQVWLWXHQWVDUHWKHYRWHUV
MXGJHV IDFLQJ UHHOHFWLRQ DUH PRUH OLNHO\ WR YRWH FRQVLVWHQWO\ ZLWK WKH YRWHUV¶ SUHIer-
HQFHV LQ FDVHV WKDW WKH YRWHUV FDUH VWURQJO\ DERXW  6LPLODUO\ DV DSSRLQWHG MXGJHV¶
constituents are governors or legislatures, judges facing reappointment should vote
consistently with the preferences of the other governmental branches in cases in
ZKLFKWKRVHEUDQFKHVKDYHDVWDNH´
60. Romer v. Evans, 517 U.S. 620, 652-6FDOLD-GLVVHQWLQJ³:KHQ
the Court takes sides in the culture wars, it tends to be with the knights rather than the
villeins ± and more specifically with the Templars, reflecting the views and values of
WKHODZ\HUFODVVIURPZKLFKWKH&RXUW¶V0HPEHUVDUHGUDZQ´
File: Fitzpatrick Created on: 10/5/2009 11:03:00 AM Last Printed: 10/8/2009 12:53:00 PM

2009] POLITICS OF MERIT SELECTION 691

WKDW ³ODZ\HUV JHQHUDOO\ WHQG WR OHDQ OHIW SROLWLFDOO\´61 Surveys of lawyers
confirm that lawyers associate themselves with the Democratic Party and the
³OLEHUDO´ODEHOPRUHRIWHQWKDQGRPHmbers of the general public.62
Of course, I do not mean to suggest that lawyers are more liberal than
the public on every issue. It is not entirely obvious, for example, why law-
yers would be more liberal than the general public on economic issues: law-
yers make more money on average than most other people and, as such, are
likely to feel the brunt of redistributive economic policies. On the other hand,
on at least some economic issues ± government regulation of businesses, tort
reform, etc. ± most lawyers, no matter what their personal beliefs, have a
selfish interest in liberal policies. The greater the number of lawsuits against
businesses, for example, the more work there is for lawyers on both sides of
those suits. Hence, even lawyers who are socially conservative might prefer
judges who support many liberal economic and regulatory policies.
Although none of this evidence is conclusive, I tend to share the view of
many people that, on average, lawyers are more liberal than the rest of the
public. If lawyers are in fact more liberal, then, as I explained in the previous
Part, we might expect merit systems to select judiciaries that are more liberal
than those selected by the public or their elected representatives.
I am unaware of any effort to test this hypothesis empirically, but it is
interesting to note that three scholars recently came to a similar conclusion in

61. Amy Miller, Top Corporate Lawyers are Split Between McCain and Obama,
CORPORATE COUNSEL, Oct. 7, 2008, http://www.law.com/jsp/ihc/PubArticleIHC.jsp?
id=1202425064139.
62. It should be noted that none of these surveys is very comprehensive. See
Amy E. Black & Stanley Rothman, Shall We Kill All the Lawyers First?: Insider and
Outsider Views of the Legal Profession, 21 HARV. J.L. & PUB. POL¶Y 835, 842-44
VXUYH\LQJSDUWQHUVIURPWKH³PRVWSUHVWLJLRXVODZILUPVLQWKH8QLt-
HG6WDWHV´DQGILQGLQJWKHPPRUHOLNHO\WRGHVcribe themselves as Democrats, 42%,
WKDQ 5HSXEOLFDQV  DQG WKDW ³ODUJH PDMRULWLHV IDYRU>@    PRUH µOLEHUDO¶ VRFLDO
SROLFLHV´LQFOXGLQJIRUH[DPSOHWKDW³DJUHHGWKDWZRPHQKDYHDULJKWWRFKRRVH
DQ DERUWLRQ´ )UHGHULFN ' +HU]RQ Ideology, Constraint, and Public Opinion: The
Case for Lawyers, 24 AM. J. POL. SCI. 233, 244 (1980) (interviewing 226 randomly
selected, Philadelphia-DUHDODZ\HUVLQDQGILQGLQJZHUHWR³VRPHGHJUHH
OLEHUDO >ZKLOH@ >ZHUH@ FRQVHUYDWLYH´ 5REHUW / Nelson, Ideology, Practice,
and Professional Autonomy: Social Values and Client Relationships in the Large Law
Firm, 37 STAN. L. REV. 503, 509-10 (1985) (studying 224 lawyers drawn from four
Chicago law firms, and finding that 38.5% were Democrats, 23.5% Republicans, and
38.0% Independent); JOHN P. HEINZ ET AL., URBAN LAWYERS: THE NEW SOCIAL
STRUCTURE OF THE BAR 19, 181-82 (University of Chicago Press 2005) (reviewing
surveys of random samples of 800 Chicago lawyers in 1975 and 1995, and finding
that Democrats outnumbered Republicans by approximately 56% to 29% in both
years); ROBERT LERNER ET AL., AMERICAN ELITES 50, 142 (Yale University Press
LQWHUYLHZLQJD³UDQGRPVDPSOHRIHOLWHFRUSRUDWHODZ\HUVFRQVLVW>LQJ@RISDUt-
ners from New York and Washington, DC, law firms with more than fifty partQHUV´LQ
1982, and finding 32% identified themselves as conservative, 22% as moderate, and
47% as liberal).
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692 MISSOURI LAW REVIEW [Vol. 74

D VWXG\ RI WKH ODZ\HUV¶ FRPPLVVLRQ WKDW HYDOXDWHV IHGHUDO MXGLFLDO QRPi-
nations: the ABA Standing Committee on the Federal Judiciary.63 After con-
trolling for other vaULDEOHVWKHVHVFKRODUVIRXQGHYLGHQFHRI³V\VWHPDWLFELDV
toward Democratic noPLQHHVLQWKH$%$¶VUDWLQJV´64 and they hypothesized
WKDW WKH ELDV PLJKW KDYH EHHQ FDXVHG E\ D ³VNHZ WRZDUG WKH OHIW´ DPRQJ
PHPEHUVRIWKH$%$¶V6WDQGLQJ&RPPLWWHH65
It is beyond the scope of this Article to make the same sort of rigorous
assessment of merit systems. Nonetheless, in order to shed at least a bit of
light on the matter, I collected data on the ideological preferences of the ap-
pellate nominees recommended since 1995 by the merit commissions in two
states. The two states I selected were Tennessee, where during this time the
bar controlled twelve of the seventeen members of the merit commission
(71%), and Missouri, where the bar controlled three of the seven commission
members (43%). Although far from conclusive, the data I collected on the
nominees from these commissions is consistent with the hypothesis that the
ideological preferences of judges in merit systems are to the left of those who
would have been selected by the electorate or their representatives.
In order to obtain data on the ideological preferences of the appellate
nominees in Tennessee and Missouri, I first obtained a list of all such nomi-
nees from the Tennessee Administrative Office of Courts and the Missouri
Appellate Judicial Commission.66 In Tennessee, there have been 90 appellate
nominations since 1995, and in Missouri there have been 108 during that
time. The lists of nominees are set forth in Appendices A and B.
It is impossible to observe directly the ideological preferences of each of
these nominees; as with all studies in this area, preferences can only be ascer-
tained through proxies. A common proxy for the personal ideological prefer-
ences of a judge is the political party with which the judge is affiliated,67 but
even this proxy was not directly observable here because both Tennessee and
Missouri hold open primaries and do not require registration with a political
party.68
Tennessee does record, however, whether an individual has voted in a
Democratic or Republican primary; thus, it is possible to get an indication of
D QRPLQHH¶V SDUWLVDQ DIILOLation by examining whether the nominee voted

63. See Richard L. Vining, Jr., et al., Bias and the Bar: Evaluating the ABA Rat-
ings of Federal Judicial Nominees (SSRN, Working Paper No. 1368891, 2009),
available at http://ssrn.com/abstract=1368891.
64. Id. at 19.
65. Id. at 10.
66. These lists were current as of July 2008 in Tennessee and December 2008 in
Missouri.
67. See e.g., SUNSTEIN ET AL., supra note 37 (using the political party of the
pUHVLGHQWZKRDSSRLQWHGWKHMXGJHDVDSUR[\IRUWKHMXGJH¶VLGHRORJLFDOSUHIHUHQFHV
68. See MO. REV. STAT. § 115.397; TENN. CODE ANN. § 2-7-115 (2008).
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2009] POLITICS OF MERIT SELECTION 693

more often in Democratic primaries or Republican primaries.69 Consequent-

ly, I sought from each of the county election offices in Tennessee the primary
voting history for all of the individuals nominated for appellate judgeships by
7HQQHVVHH¶VPHULWFRmmission. The primary voting histories I received were
not over a uniform time period; I was able to obtain data on some nominees
back to the 1980s, whereas I was able to obtain data on others only back to
2000.70 Nonetheless, I received several years of primary voting records for
eighty-eight of ninety appellate nominations.71 In eighty-seven of those nom-
LQDWLRQVWKHQRPLQHHYRWHGPRUHRIWHQLQRQHRIWKHWZRSDUWLHV¶SULPDULHV
RQHQRPLQHHYRWHGDQHTXDOQXPEHURIWLPHVLQHDFKSDUW\¶VSULPDULHV:LWK
respect to the eighty-seven nominees for which I could assign a partisan affil-
iation, 67% voted more often in Democratic primaries, and 33% voted more
often in Republican primaries. In order to get a sense of how this ratio of
Democrats to Republicans compared to the ratio in the Tennessee electorate
as a whole, I collected data on the percentage of votes received by Democrat-
ic candidates since 1995 in general elections for the Tennessee House of Rep-
UHVHQWDWLYHVDQGIRU7HQQHVVHH¶VVHDWVLQWKH86+RXVHRI5HSUHVHQWDWLYHV72
Figure 1 shows this comparison: although 67% of the merit nominees in Ten-

69. Like any proxy, primary voting records will not always perfectly reflect the
ideological preferences of a judicial nominee. For example, a nominee may vote in
RQHSDUW\¶VSULPDU\QRWEHFDXVHWKHQRPLQHHIDYRUVWKDWSDUW\EXWEHFDXVHWKHRWKHU
SDUW\¶VSUimary is not contested.
70. The numbers reflected below are based on all of the data available for each
nominee. Although in theory the lack of uniformity in time periods might not capture
changes in partisan affiliation for some nominees that it captures in others, in this
case, even if only the data back to 2000 are used for each nominee, the percentage of
nominees who voted more often in Democratic primaries (67%) is no different than
the percentage when all of the available data is used for each nominee.
71. Data could not be obtained for one nominee who was nominated twice.
72. State and federal House races were used because these races occur every two
years, and, as such, they offered a more precise reflection of the partisan affiliation of
the Tennessee electorate over time. If races for candidates elected statewide were
used instead, it would suggest the same or even greater divergence between the Ten-
nessee merit-plan nominees and the Tennessee electorate. While votes for Democrat-
ic and Republican candidates were split in roughly the same way in statewide guber-
natorial elections as they were in state and federal House races over the same time
period (with Democrats receiving 52% of the gubernatorial votes), Republican candi-
dates won all but one statewide federal race in Tennessee in that time (and often by
very large margins). See TENN. DEP¶T OF STATE, NOVEMBER 4, 2008 GENERAL
ELECTION OFFICIAL RESULTS (2008), http://www.state.tn.us/sos/election/results/2008-
11/index.htm; TENN. SEC¶Y OF STATE, TENNESSEE BLUE BOOK 2007-2008, at 564-65,
578-79 (2008); TENN. SEC¶Y OF STATE, TENNESSEE BLUE BOOK 2005-2006, at 560-61
(2006); TENN. SEC¶Y OF STATE, TENNESSEE BLUE BOOK 2001-2004, at 560-61, 565-
66, 617-18, 626-627 (2004); TENN. SEC¶Y OF STATE, TENNESSEE BLUE BOOK 1999-
2000, at 542-43 (2000); TENN. SEC¶Y OF STATE, TENNESSEE BLUE BOOK 1997-1998,
at 526-27, 531-32 (1998); TENN. SEC¶Y OF STATE, TENNESSEE BLUE BOOK 1995-
1996, at 516-17 (1996).
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694 MISSOURI LAW REVIEW [Vol. 74

nessee since 1995 voted more often in Democratic Party primaries, only 51%
RI WKH YRWHV IRU WKH VWDWH +RXVH DQG RQO\  RI WKH YRWHV IRU 7HQQHVVHH¶V
federal House seats were for Democratic candidates over the same time.

Figure 1: Percentage of Tennessee merit-plan nominees since 1995

who voted more often in Democratic primaries versus percentage
of votes received by Democratic FDQGLGDWHVLQ7HQQHVVHH¶VVWDWH
and federal House races73

73. The state and federal House vote percentage is based on the sum of votes in
biennial November elections from 1994 to 2006 exclusive of any votes received by
independent or third-party candidates. The voting data was gathered from the Ten-
nessee Blue Books in 1996, 1998, 2000, 2004, 2006, 2008, and the Tennessee De-
SDUWPHQWRI6WDWH¶VZHbsite in 2008. See TENN. DEP¶T OF STATE, NOVEMBER 4, 2008
GENERAL ELECTION OFFICIAL RESULTS (2008), http://www.state.tn.us/sos/election/res
ults/2008-11/index.htm; TENN. SEC¶Y OF STATE, TENNESSEE BLUE BOOK 2007-2008,
at 570-73, 620-37 (2008); TENN. SEC¶Y OF STATE, TENNESSEE BLUE BOOK 2005-2006,
at 566-69, 597-613 (2006); TENN. SEC¶Y OF STATE, TENNESSEE BLUE BOOK 2001-
2004, at 570-72, 598-612, 633-36, 659-73 (2004); TENN. SEC¶Y OF STATE, TENNESSEE
BLUE BOOK 1999-2000, at 563-64, 595-606 (2000); TENN. SEC¶Y OF STATE,
TENNESSEE BLUE BOOK 1997-1998, at 539-41, 572-84 (1998); TENN. SEC¶Y OF STATE,
TENNESSEE BLUE BOOK 1995-1996, at 531-32, 558-67 (1996).
File: Fitzpatrick Created on: 10/5/2009 11:03:00 AM Last Printed: 10/8/2009 12:53:00 PM

2009] POLITICS OF MERIT SELECTION 695

Figure 2 shows the same comparison as Figure 1 but in increments of two-

year election cycles. In all but one election cycle, the Tennessee merit system
nominated a greater percentage of judges more affiliated with the Democratic
Party than the percentage of votes Democratic candidates received in TennesVHH¶V
state and federal House races. The one exception was during 1995-96, where the
percentage of Democratic merit nominees was 50%, slightly lower than the
50.1% and 53.2% of votes that went to Democratic candidates in state and federal
House races, respectively, in the November 1994 election (which was the election
that selected state and federal House members who served during 1995-96).

Figure 2: Percentage of Tennessee merit-plan nominees

who voted more often in Democratic primaries versus
percentage of votes received by Democratic candidates in
TennesVHH¶V state and federal House races74

Unfortunately, Missouri does not similarly record whether voters cast

74. There were no appellate nominations during 2001-2002. The state and fed-
eral House vote percentage for each two-year period is based on the percentage of
votes Democratic candidates received in the November election of the year before
each period began, exclusive of any votes received by independent or third-party
candidates. The voting data was taken from the Tennessee Blue Books in 1996, 1998,
    DQG WKH 7HQQHVVHH 'HSDUWPHQW RI 6WDWH¶V ZHEVLWH LQ 
See supra note 73.
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696 MISSOURI LAW REVIEW [Vol. 74

ballots in Republican or Democratic primary elections. Thus, I used a differ-

ent proxy for partisan affiliation: campaign contributions. Although cam-
paign contributions are also used by scholars as a proxy for partisan affilia-
tion,75 they are, at least in my view, a less useful proxy than party registration
or primary voting because many people do not make any campaign contribu-
tions at all, and lawyers may contribute to candidates for professional reasons
as opposed to personal ones. Nonetheless, as this was the only indication of
partisan affiliation readily ascertainable in Missouri, it was the one I used. I
gathered data on federal and state campaign contributions from the electronic
databases maintained by the Federal Elections Commission (FEC),76 Open-
Secrets,77 and the Missouri Ethics Commission (MEC).78 The FEC database
included contributions from 1997, OpenSecrets from 1995, and the MEC
from 2002.79 I recorded any contribution to a Republican or Democratic can-
didate or to the Republican or Democratic Parties. Of the 108 nominations in
Missouri, the nominee made campaign contributions in only half of the cases
(fifty four). Nonetheless, these fifty-four nominees can be examined to pro-
vide some sort of indication of the political balance of the Missouri merit
commission. Of the fifty-four nominees in Missouri since 1995 who made
any campaign contributions, 87% gave more to Democrats than Republicans,
and only 13% gave more to Republicans than Democrats. Over the same
time period, Democratic candidates in Missouri only received roughly 50% of
the general election votes in state and federal House races.80 Figure 3 shows

75. See, e.g., John O. McGinnis et al., The Patterns and Implications of Political
Contributions by Elite Law School Faculty, 93 GEO. L.J. 1167 (2005) (using cam-
paign contributions as proxies for partisan affiliation).
76. Federal Elections Commission, Advanced Transaction Query by Individual,
http://www.fec.gov/finance/disclosure/advindsea.shtml (last visited Feb. 25, 2009).
77. OpenSecrets, Donor Lookup: Find Individual and Soft Money Contributors,
http://www.opensecrets.org/indivs/index.php (last visited Feb. 25, 2009).
78. Missouri Ethics Commission, Contributions & Expenditures: Statewide &
Legislative Candidate Committees, http://www.mec.mo.gov/EthicsWeb/Campaign
Finance/CF_SearchContr.aspx (last visited Feb. 25, 2009).
79. The name of each nominee was input into all three databases, and every year
of available contribution data was examined. Searches were conducted as broadly as
possible, typically by omitting the middle initial, in order to catch contributions made
under just a first and last name. Careful attention was paid, however, to the name,
city, and ZIP code, to avoid including data of a different person with the same name.
80. State and federal House races were used because these races occur every two
years, and, as such, they offered a more precise reflection of the political affiliation of
the Missouri electorate over time. If races for candidates elected statewide were used
instead, it would suggest the same divergence between the Missouri merit-plan nomi-
nees and the Missouri electorate. For example, the votes for Democratic and Repub-
lican candidates were split in roughly the same way in statewide gubernatorial elec-
tions as they were in state and federal House races over the same time period (with
Democrats receiving only 53% of the gubernatorial votes); in statewide federal races,
Republican candidates did even better, winning a large majority of votes over that
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2009] POLITICS OF MERIT SELECTION 697

these comparisons. It should be noted that the disparity in the amount of

money these nominees contributed is even more stark than the disparity in the
number of nominees who contributed: nearly 93% ($316,010) of all of the
money contributed went to Democratic candidates, whereas only 7%
($24,615) went to Republicans.

time (67%). See BOARD OF STATE CANVASSERS, OFFICIAL ELECTION RETURNS

(2008), http://www.sos.mo.gov/enrweb/allresults.asp?arc=1&eid=256; ROBIN
CARNAHAN, MO. SEC¶Y OF STATE, 2007-2008 OFFICIAL MANUAL 644-63 (2008);
ROBIN CARNAHAN, MO. SEC¶Y OF STATE, 2005-2006 OFFICIAL MANUAL 632-61
(2006); BOARD OF STATE CANVASSERS, OFFICIAL ELECTION RETURNS (2002), http://w
ww.sos.mo.gov/enrweb/allresults.asp?arc=1&eid=87; BOARD OF STATE CANVASSERS,
OFFICIAL ELECTION RETURNS (2000), http://www.sos.mo.gov/enrweb/allresults.asp?
arc=1&eid=14; BOARD OF STATE CANVASSERS, OFFICIAL ELECTION RETURNS (1998),
http://www.sos.mo.gov/enrweb/allresults.asp?arc=1&eid=6; BOARD OF STATE
CANVASSERS, OFFICIAL ELECTION RETURNS (1996), http://www.sos.mo.gov/enrweb/
allresults.asp?arc=1&eid=4.
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698 MISSOURI LAW REVIEW [Vol. 74

Figure 3: Percentage of M issouri merit-plan nominees since

1995 who contributed more money to Democratic candidates
versus percentage of votes received by Democratic candidates in
M isVRXUL¶VVWDWHDQGIHGHUDO+RXVHUDFHV81

100%

90% 87%

80%

70%

60%

49% 50%
50%

40%

30%

20%

10%

0%
%  Democratic  Merit  Nominees %  Democratic  House  Votes %Democratic  Fed  House  Votes

Figure 4 shows the same comparison as Figure 3 but in increments of

two-year election cycles. In every election cycle, the Missouri merit system
nominated a greater percentage of individuals evidencing more affiliation
with the Democratic Party than the percentage of votes Democratic candi-
dates received in state and federal House races.

81. The state and federal House vote percentage is based on the sum of votes in
biennial November elections from 1994 to 2006 exclusive of any votes received by
independent or third-party candidates. The voting data was gathered from the Mis-
souri Official Manuals in 1996, 1998, 2000, 2002, 2004 and the Missouri Secretary of
6WDWH¶V ZHbsite in 2006 and 2008. See MO. SEC¶Y OF STATE, OFFICIAL ELECTION
RETURNS, http://www.sos.mo.gov/enrweb/allresults.asp?eid=256 (last visited Feb. 25,
2009); MO. SEC¶Y OF STATE, OFFICIAL ELECTION RETURNS, http://www.sos.mo.gov/
enrweb/allresults.asp?arc=1&eid=189 (last visited Feb. 25, 2009); O FFICIAL MANUAL,
STATE OF MISSOURI, 2005-06, at 650-61 (Krista S. Myer ed.); OFFICIAL MANUAL,
STATE OF MISSOURI, 2003-04, at 630-41 (Rob Davis ed.); OFFICIAL MANUAL, STATE
OF MISSOURI, 2001-02, at 634-44 (Rob Davis ed.); OFFICIAL MANUAL, STATE OF
MISSOURI, 1999-2000, at 565-76 (Julius Johnson ed.); OFFICIAL MANUAL, STATE OF
MISSOURI, 1997-98, at 567-80 (Jim Grebing ed.).
File: Fitzpatrick Created on: 10/5/2009 11:03:00 AM Last Printed: 10/8/2009 12:53:00 PM

2009] POLITICS OF MERIT SELECTION 699

Figure 4: Percentage of M issouri merit-plan nominees who

contributed more money to Democratic candidates versus
percentage of votes received by Democratic candidates in
M isVRXUL¶VVWDWHDQGIHGHUDO+RXVHUDFHV82

100%

90%

80%

% 70%
 
D
e 60%
m
o
c 50%
r
a
MO  Merit  Plan  nominees
t 40%
i
MO  House  Votes
c
30%
Fed  House  Votes

20%

10%

0%
1995-­‐96 1997-­‐98 1999-­‐2000 2001-­‐02 2003-­‐04 2005-­‐06 2007-­‐08

Figures 1-4 are consistent with the hypothesis that merit systems select
judiciaries with ideological preferences to the left of those that would have
been selected by the public or its elected representatives. At the same time, it
is important not to read too much into these graphs. Again, in Missouri, half
the data is missing. If all of the missing nominees were Republicans, Figures
3 and 4 would look much different. Of course, there is little reason to believe
that the missing data would look any different than the data that was uncov-
ered. But even apart from this particular limitation, there are several other
reasons to treat Figures 1-4 cautiously.

82. The state and federal House vote percentage for each election cycle is based
on the percentage of votes Democratic candidates received in the general election in
November of the year before each cycle, exclusive of any votes received by indepen-
dent or third-party candidates. The voting data was gathered from the Missouri Offi-
cial Manuals in 1996, 1998, 2000, 2002, 2004 DQGWKH0LVVRXUL6HFUHWDU\RI6WDWH¶V
website in 2006 and 2008. See supra note 81.
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700 MISSOURI LAW REVIEW [Vol. 74

First, these graphs are for only two states, and, in particular, they are for
the two states where the merit system may be the most controversial.83 It is
possible that the merit system has become controversial in these two states
precisely because these are the only two states in which the systems have
resulted in judiciaries skewed to the left.
Second, for much of the time covered by the graphs, both Tennessee and
Missouri had Democratic governors. Tennessee had Democratic governors in
six of the fourteen years since 1995,84 and Missouri had Democratic gover-
nors in ten of fourteen years.85 Some commentators believe that merit com-
missions alter the partisan affiliation of the judges they nominate in deference
to the political party of the governor;86 moreover, in Missouri, the governor
has the power to select some of the merit commission members.87 The data
from Tennessee and Missouri is consistent with this belief but not in a way
that undermines the hypothesis of liberal skew. Table 3 compares the percen-
tage of merit nominees who were more affiliated with the Democratic Party
in primary voting or campaign contributions in Figures 1-4 in years in which
the governors in Tennessee and Missouri were Democrats to the percentage
when the governors were Republicans. Table 3 shows that merit commis-
sions sent overwhelmingly Democratic slates to Democratic governors (82%
and 94%) and only less overwhelmingly Democratic slates to Republican
governors (54% and 72%).

83. See Fitzpatrick, supra note 34, at 88 (describing the controversy surrounding
WKH7HQQHVVHHOHJLVODWXUH¶VGHFLVLRQ³LQ0D\RIDIWHUDKLJK-profile debate, not
to reauWKRUL]HWKH7HQQHVVHHSODQ´DQGLQVWHDG³VHQ>G@WKH3ODQLQWRDRQH-year wind
GRZQ SHULRG´ .HOO\ :LHVH Proposed Changes to Missouri Plan Gather Steam at
Capitol, KAN. CITY DAILY REC., Mar. 12, 2008 (describing a proposed constitutional
amendment to MissRXUL¶VMXGLFLDOVHOHFWLRQSURFHVV$PDQGD%URQVWDG6WDWH¶V-XGi-
cial Nomination Process Threatened, NAT¶L /-$XJDW³7KHSROLWLFDO
IHXG EHWZHHQ RSSRQHQWV RI µMXGLFLDO DFWLYLVP¶ DQG SURSRQHQWV RI µLPSDUWLDO FRXUWV¶
that inundated last year¶V MXGLFLDO HOHFWLRQVKDV ODQGHG LQ 0LVVRXUL   ´ +HQU\ -
Walters III, Opinion, Extraordinary Exchange: Blunt v. the Missouri Plan, COLUMBIA
DAILY TRIB., Aug. 12, 2007 (deVFULELQJIRUPHU*RYHUQRU0DWW%OXQW¶V³DWWDFNRQWKH
0LVVRXUL3ODQ´
84. See TENN. SEC¶Y OF STATE, TENNESSEE BLUE BOOK 2007-2008, at 111, 489-
505 (2008), available at http://www.state.tn.us/sos/bluebook/.
85. See Missouri election sources cited supra note 81.
86. See Charles B. Blackmar, 0LVVRXUL¶V1RQSDUWLVDQ&RXUW3ODQIURPWR
2005, 72 MO. L. REV. 199, 205 (2007) GHVFULELQJKRZ³>V@RPHMXGLFLDOFRPPLVVLRQV
adopted the pracWLFHRIQDPLQJWZRPHPEHUVRIWKHJRYHUQRU¶VSDUW\DQGRQHPHPEHU
of the opSRVLQJSDUW\WRHDFKSDQHO´
87. See MO. CONSTDUW9†G³>7@KHJRYHUQRUVKDOODSSRLQWRQHFLWL]HQ
from among the residents of each court of appeals district, to serve as a member of
VDLG>MXGLFLDO@FRPPLVVLRQ´
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2009] POLITICS OF MERIT SELECTION 701

Table 3: Percentage of merit nominees who were Democrats in

Tennessee and M issouri by political party of the Governor

Percentage of merit nominees who were Democrats

Years with Democratic Years with Republican
Governors Governors

Tennessee 82% 54%

(n = 39) (n= 48)

Missouri 94% 72%

(n = 36) (n = 18)

Third, in Tennessee, all of the members of the merit commission during

this time were selected by the speakers of the two houses of the state legisla-
ture (again, mostly from lists of nominees provided by several special bar
associations).88 Over almost the entire period since 1995, the speakers of
both Tennessee houses were Democrats.89 It is possible, then, that the parti-
san skew of the nominees in Tennessee may be more a function of who the
speakers of the Tennessee legislature were, as opposed to the ideological
preferences of the bar associations that submitted the names for membership
on the commission.
Finally, it should be noted that the data presented in Figures 1-4 reflect
the judges who were nominated WRWKHJRYHUQRUE\WKHODZ\HUV¶FRPPLVVLRQV
not the judges who were ultimately selected by the governor. It is possible
that any skew in nominations was not reflected in the ultimate selections.90
Moreover, even if the governors did not correct the skew in nominations, it
does not necessarily follow that the judiciaries selected by voters or their
elected representatives would have looked much different than the judiciaries
selected by the merit systems. Although, again, the hypothesis of merit-
selection proponents is that voters and elected officials will select judges who

88. See TENN. CODE ANN. § 17-4-102.

89. See Andy Sher, Tennessee: General Assembly Landscape Changes as GOP
Takes Over, CHATTANOOGA TIMES1RYGHVFULELQJ5HSXEOLFDQV¶WDNH-over
of the House as the first since Reconstruction); Andy Sher, Nashville: Parties Fight
for Control of Assembly, CHATTANOOGA TIMES, June 29, 2008 (noting that in 2007
SeQDWH5HSXEOLFDQVPDGHKLVWRU\E\HOHFWLQJ³WKHILUVW5HSXEOLFDQVSHDNHUVLQFHSRVW-
Civil War ReconstrucWLRQ´
90. In both Tennessee and Missouri, the merit commissions submit three nomi-
nees to the governor for every vacancy. Thus, for example, so long as at least one of
these three nominees was conservative for every vacancy, conservative governors
would have been able to fill the judiciary with conservatives.
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702 MISSOURI LAW REVIEW [Vol. 74

share their ideological preferences, the reality of electoral politics can dramat-
ically undermine the theory.91
For all these reasons, much more empirical research is needed before
any sort of conclusions can be drawn regarding the ideological shift in the
judiciary, if any, that might accompany merit selection.
I wish to close this Article by making the obvious point that simply be-
cause merit selection might produce a leftward shift in the judiciary does not
necessarily mean that merit selection is an inferior method of choosing
judges. Many people believe that the judiciary (at least when interpreting a
constitution) should act in a counter-majoritarian manner, and, therefore, by
design, the judiciary should not reflect the ideological preferences of the pub-
lic.92 Not everyone believes this, of course,93 but even if one does believe
WKLV LW LV VWLOO QRW FOHDU ZK\ WKH MXGLFLDU\¶V GLYHUJHQFH IURP SXEOLF RSLQLRQ
should be a leftward divergence. Judges can perform a counter-majoritarian
function from the right of public opinion just as well as they can from the left;
judges can strike down laws because they violate the right to bear arms, the
right to freely exercise religion, and the right not to have property taken (all
constitutional rights affiliated today with the right side of the political spec-
trum), just as easily as they can strike down laws because they violate the

91. For example, although the state House votes in both Tennessee and Missouri
were almost exactly balanced between the two political parties, it does not necessarily
follow that judicial elections would have resulted in a fifty-fifty split in the judiciary.
As a consequence of winner-take-all election systems, the barest of majorities in the
electorate can, in theory, produce public officials uniformly from one political party.
This is especially the case if appellate judges would have been elected statewide as
opposed to in geographic districts. In both Missouri and Tennessee over this time
period, the two parties alternated in collecting majorities of state House votes, with
ten of fourteen years resulting in Democratic candidates receiving more House votes
overall in Tennessee and Democratic candidates receiving more House votes overall
in eight of fourteen years in Missouri. See Tennessee and Missouri election sources
supra notes 73, 81. If one presumes that whichever political party won more House
votes overall would have won all statewide judicial elections in those years, then
direct election of judges would have produced a Tennessee judiciary that was 71%
Democratic over this time period and a Missouri judiciary that was 57% Democratic.
If judges were not elected statewide, but instead in districts, then we would expect the
political balance of the elected judiciaries to more closely track the balance in the
House vote in each election cycle. Much the same might be true if judges were ap-
pointed by elected officials. For example, if the governor would have appointed all
appellate judges in Tennessee and Missouri, and if one assumes that the governor
would appoint judges entirely from his or her own political party, then, because Ten-
nessee had Democratic governors only six of fourteen years, one might have expected
a judiciary that was 43% Democratic over the same time frame and, in Missouri, with
ten years of Democratic governors, a judiciary that was 71% Democratic.
92. See, e.g., Suzanna Sherry, Politics and Judgment, 70 MO. L. REV. 973, 979-
82 (2005).
93. See, e.g., LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR
CONSTITUTIONALISM AND JUDICIAL REVIEW 248 (2004).
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2009] POLITICS OF MERIT SELECTION 703

right to abortion, the right to same-sex marriage, and the right to be free from
unreasonable searches (all constitutional rights affiliated today with the left
side of the political spectrum). In short, I do not believe any leftward skew in
the judiciary that may be associated with merit selection can be justified
simply by invoking the principle of counter-majoritarianism. Whether the
proponents of merit systems can justify any such skew on other grounds re-
mains to be seen; I am unaware of any effort by proponents to address this
matter. But if future empirical research confirms that merit systems are asso-
ciated with a leftward shift in the ideological direction of the judiciary, then
proponents may need to do so sooner rather than later.

V. CONCLUSION

We do not know if merit systems produce judiciaries more liberal than

those that would be produced by the other methods of judicial selection. I
think there are reasons, however, to believe that they might. No system of
judicial selection delegates as much of its power to bar associations as merit
systems do, and many people believe that lawyers as a group are more liberal
than the public at large. Moreover, it is hard to believe that any differences in
the ideological preferences of lawyers and the public will not end up reflected
in the judiciaries that each group selects, and, although far from conclusive,
data from two merit states is consistent with this hypothesis. If future empiri-
cal research confirms this hypothesis, then proponents of merit selection may
need to change the focus of their energies away from the notion that merit
selection takes the politics out of judicial selection and towards an explana-
tion as to why the judiciary should reflect the political beliefs of lawyers rath-
er than the public.
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704 MISSOURI LAW REVIEW [Vol. 74

APPENDIX A: TENNESSEE NOMINEES, JANUARY 1995 ± JULY 2008

Ash, Don R. 2000, Tennessee Court of Criminal Appeals

%DLOH\'¶Army 2006, Tennessee Supreme Court; 2007, Tennessee Su-
preme Court
Barker, William M . 1995, Tennessee Court of Criminal Appeals; 1996,
Tennessee Supreme Court; 1998, Tennessee Supreme Court
Bennett, Andy D. 2007, Tennessee Court of Appeals
Brown, M ark A. 2004, Tennessee Court of Appeals
Brown, George H., Jr. 1996, Tennessee Supreme Court
Cain, William B. 1998, Tennessee Court of Appeals
Capparella, Donald 2003, Tennessee Court of Appeals; 2007, Tennessee
Court of Appeals
Clark, Cornelia A. 1995, Tennessee Court of Criminal Appeals; 1998, Ten-
nessee Court of Appeals; 2003, Tennessee Court of Appeals; 2005, Tennessee
Supreme Court
Clement, Frank G., Jr. 2003, Tennessee Court of Appeals
Corlew, Robert E. I I I 1995, Tennessee Court of Criminal Appeals
Cottrell, Patricia J. 1998, Tennessee Court of Appeals; 1998, Tennessee
Court of Appeals
Crossley, Robert L. 1998, Tennessee Supreme Court
Daniel, Joseph S. 1996, Tennessee Court of Criminal Appeals
DeVasher, Jeffrey A. 2000, Tennessee Court of Criminal Appeals
Dinkins, Richard H. 2006, Tennessee Supreme Court; 2006, Tennessee
Supreme Court; 2007, Tennessee Court of Appeals
Duncan, Christine H. 2007, Tennessee Court of Appeals
Glenn, Alan E. 1998, Tennessee Court of Criminal Appeals; 1998, Tennes-
see Court of Criminal Appeals; 1999, Tennessee Court of Criminal Appeals
Gordon, J. Houston 2006, Tennessee Supreme Court; 2006, Tennessee
Supreme Court; 2006, Tennessee Supreme Court
Haltom, William H., Jr. 2008, Tennessee Court of Appeals
Higgs, W. Otis, Jr. 1998, Tennessee Court of Criminal Appeals
Holder, Janice M . 1996, Tennessee Supreme Court
Hollars, Amy V. 2007, Tennessee Court of Appeals; 2007, Tennessee Court
of Appeals
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2009] POLITICS OF MERIT SELECTION 705

I rvine, Kenneth F., Jr. 1998, Tennessee Court of Criminal Appeals; 1998,
Tennessee Court of Criminal Appeals
Johnson, G. Richard 2004, Tennessee Court of Appeals
Jones, Robert L. 1996, Tennessee Court of Criminal Appeals
Knowles, E. Clifton 1998, Tennessee Court of Appeals
Koch, William C., Jr. 2005, Tennessee Supreme Court; 2006, Tennessee
Supreme Court; 2007, Tennessee Supreme Court
Lafferty, Leonard T. 1996, Tennessee Court of Criminal Appeals
Lanier, Robert A. 1995, Tennessee Court of Appeals
Lee, Sharon G. 2004, Tennessee Court of Appeals
Lewis, George T. 2006, Tennessee Supreme Court
Lillard (Kirby), Holly K. 1995, Tennessee Court of Appeals
M cGinley, C. Creed 2007, Tennessee Supreme Court
M cLin, J. C. 2004, Tennessee Court of Criminal Appeals
M cM ullen, Camille R. 2008, Tennessee Court of Criminal Appeals
M oore, Hugh J., Jr. 2006, Tennessee Court of Criminal Appeals
M owles, Linda J.H. 1999, Tennessee Court of Appeals
Ogle, Norma M . 1998, Tennessee Court of Criminal Appeals; 1998, Ten-
nessee Court of Criminal Appeals
Page, Roger A. 2008, Tennessee Court of Criminal Appeals
Redding, Robert V. 1995, Tennessee Court of Appeals
Riley, Joe G. 1996, Tennessee Court of Criminal Appeals
Rose, Todd A. 2008, Tennessee Court of Appeals
Schaffner, M ary M . 1998, Tennessee Court of Appeals
Shipman, Janet L. 1999, Tennessee Court of Criminal Appeals
Smith, Jerry L. 1995, Tennessee Court of Criminal Appeals
Stafford, James S. 2008, Tennessee Court of Appeals
Swiney, David M . 1998, Tennessee Supreme Court; 1999, Tennessee Court
of Appeals
Thomas, Dea K., Jr. 2006, Tennessee Court of Criminal Appeals
Turnbull, John A. 2005, Tennessee Supreme Court
Voss, Paula R. 1995, Tennessee Court of Criminal Appeals; 1996, Tennes-
see Court of Criminal Appeals; 1998, Tennessee Court of Criminal Appeals;
1998, Tennessee Court of Criminal Appeals; 2006, Tennessee Court of Crim-
inal Appeals
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706 MISSOURI LAW REVIEW [Vol. 74

Wade, Gary R. 2006, Tennessee Supreme Court

Walker, Joe H. 2004, Tennessee Court of Criminal Appeals; 2008, Tennes-
see Court of Criminal Appeals
Ward, William M . 1996, Tennessee Court of Criminal Appeals; 1998, Ten-
nessee Court of Criminal Appeals; 1998, Tennessee Court of Criminal Ap-
peals; 1999, Tennessee Court of Criminal Appeals; 2004, Tennessee Court of
Criminal Appeals
Wedemeyer, Robert W. 2000, Tennessee Court of Criminal Appeals
Williams, Frank V., I I I 1999, Tennessee Court of Appeals
Williams, John E. 1998, Tennessee Court of Criminal Appeals
Witt, James C., Jr. 1996, Tennessee Court of Criminal Appeals
Woodall, Thomas T. 1996, Tennessee Court of Criminal Appeals
Wright, Thomas J. 1995, Tennessee Court of Criminal Appeals; 1996, Ten-
nessee Court of Criminal Appeals
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2009] POLITICS OF MERIT SELECTION 707

APPENDIX B: MISSOURI NOMINEES,

JANUARY 1995 ± DECEMBER 2008

Ahuja, Alok 2007, Missouri Court of Appeals; 2007, Missouri Court of Ap-
peals; 2007, Missouri Court of Appeals
Appelquist, Susan 2006, Missouri Court of Appeals; 2007, Missouri Court
of Appeals
Baker, Nannette A. 2004, Supreme Court of Missouri; 2004, Missouri
Court of Appeals; 2007, Supreme Court of Missouri
Barney, Robert S. 1995, Missouri Court of Appeals
Bates, Jeffrey 2003, Missouri Court of Appeals
Brechkenridge, Patricia A. 2007, Supreme Court of Missouri
Burger, Joan M . 1999, Missouri Court of Appeals; 2000, Missouri Court of
Appeals
Burrell, Don E., Jr. 2007, Missouri Court of Appeals
Callahan, Richard G. 1998, Supreme Court of Missouri
Chapel, Nimrod T., Jr. 2007, Missouri Court of Appeals
Cohen, Patricia L. 2003, Missouri Court of Appeals
Curless, Charles D. 2005, Missouri Court of Appeals
Dandurand, Joseph P. 1999, Missouri Court of Appeals; 1999, Missouri
Court of Appeals; 2007, Missouri Court of Appeals
Day, Arnold R. 1999, Missouri Court of Appeals
Doerhoff, Dale 1995, Supreme Court of Missouri
Dowd, James R. 1995. Missouri Court of Appeals; 1997, Missouri Court of
Appeals
Draper, George W., I I I 1997, Missouri Court of Appeals; 2000, Missouri
Court of Appeals
Farragut-Hemphill, Sandra 2003, Missouri Court of Appeals
Fischer, Zel M . 2007, Missouri Court of Appeals; 2008, Supreme Court of
Missouri
Friedman, Lawrence C. 2004, Missouri Court of Appeals
Gaertner, Gary M., Jr. 2007, Missouri Court of Appeals
Gunn, M ichael 2002, Missouri Court of Appeals
Hamilton, Gene 1995, Missouri Court of Appeals; 1995, Supreme Court of
Missouri; 1996, Missouri Court of Appeals; 1997, Missouri Court of Appeals
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708 MISSOURI LAW REVIEW [Vol. 74

Hardwick, Lisa W. 2001, Missouri Court of Appeals; 2008, Supreme Court

of Missouri
Hoff, M ary K. 1995, Missouri Court of Appeals
Holliger, Ronald R. 1999, Missouri Court of Appeals; 1999, Missouri Court
of Appeals; 2007, Supreme Court of Missouri; 2008, Supreme Court of Mis-
souri
Howard, Victor C. 1996, Missouri Court of Appeals
Lynch, Gary W. 2005, Missouri Court of Appeals
M anners, M ichael W. 1998, Supreme Court of Missouri; 2002, Supreme
Court of Missouri
M artin, Cynthia L.R. 2001, Missouri Court of Appeals; 2007, Missouri
Court of Appeals; 2007, Missouri Court of Appeals
M oody, John G. 2005, Missouri Court of Appeals
M ooney, Lawrence E. 1995, Missouri Court of Appeals; 1997, Missouri
Court of Appeals; 1998, Missouri Court of Appeals
Neill, M argaret M . 1995, Missouri Court of Appeals
Newberry, James W. 2001, Missouri Court of Appeals
Newton, Thomas H. 1999, Missouri Court of Appeals
Norton, Glenn A. 1998, Missouri Court of Appeals; 1999, Missouri Court of
Appeals; 2002, Missouri Court of Appeals
Odenwald, Kurt S. 2007, Missouri Court of Appeals
2¶M alley, John R. 1997, Missouri Court of Appeals
Payne, James M . 2000, Missouri Court of Appeals
Rahmeyer, Nancy S. 2001, Missouri Court of Appeals
Reeves, W. Edward 2006, Missouri Court of Appeals; 2007, Missouri Court
of Appeals
Richter, Roy L. 2005, Missouri Court of Appeals; 2005, Missouri Court of
Appeals
Riederer, Albert A. 1997, Missouri Court of Appeals
Romines, Kenneth M . 2005, Missouri Court of Appeals
Russell, M ary R. (Rhodes) 1995, Missouri Court of Appeals; 2001, Su-
preme Court of Missouri; 2004, Supreme Court of Missouri
Sanderson, M artha M .S. 2005, Missouri Court of Appeals
Schnake, Richard 2003, Missouri Court of Appeals
Scott, Daniel E. 2006, Missouri Court of Appeals
Shaw, Booker T. 2002, Missouri Court of Appeals
File: Fitzpatrick Created on: 10/5/2009 11:03:00 AM Last Printed: 10/8/2009 12:53:00 PM

2009] POLITICS OF MERIT SELECTION 709

Sheffield, M ary W. 1995, Missouri Court of Appeals; 2003, Missouri Court

of Appeals
Smart, Clifton M ., I I I 2002, Supreme Court of Missouri; 2004, Supreme
Court of Missouri
Smith, Edwin H. 1995, Missouri Court of Appeals
Stemmons, Randee 2001, Missouri Court of Appeals
Stith, Rebecca S. 2002, Missouri Court of Appeals; 2003, Missouri Court of
Appeals
Stith, Laura D. 2001, Supreme Court of Missouri
Sullivan, Sherri B. 1997, Missouri Court of Appeals; 1998, Missouri Court
of Appeals; 1999, Missouri Court of Appeals
Switzer, Erwin O., I I I 2002, Missouri Court of Appeals; 2002, Missouri
Court of Appeals; 2004, Missouri Court of Appeals
Teitelman, Richard B. 1997, Missouri Court of Appeals; 1997, Missouri
Court of Appeals; 2001, Supreme Court of Missouri; 2002, Supreme Court of
Missouri
Tucker, Laurence R. 1996, Missouri Court of Appeals
Weaver, Thomas B. 2005, Missouri Court of Appeals; 2005, Missouri Court
of Appeals; 2007, Missouri Court of Appeals
Welsh, James E. 2007, Missouri Court of Appeals
Westbrooke, Henry W., Jr. 1995, Missouri Court of Appeals
White, Ronnie L. 1995, Supreme Court of Missouri
Wilkins, Frederick J. 1995, Missouri Court of Appeals
Williams, M ichael S. 1995, Missouri Court of Appeals
Winn, Karen A. 2001, Missouri Court of Appeals
Wolff, M ichael A. 1998, Supreme Court of Missouri