Proponents of the Missouri Plan argue that it would remove the influence of money from the judiciary, as well as safeguard its impartiality. But empirical research does not support that theory and none of the proposed benefits of the plan - depoliticized elections, increased legitimacy, higher quality of courts - has been found true.
First, look at what kind of candidates end up being nominated by the commissions. Using data from Tennessee and Missouri, Vanderbilt University law professor Brian Fitzpatrick found 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." Rather than removing politics from judicial selection, Fitzpatrick says, "merit selection may simply move the politics of judicial selection into closer alignment with the ideological preferences of the bar." That is, the process benefits the elites with the most control over the legal profession at the expense of the electorate.
Melinda Gann Hall, a professor of political science at Michigan State University, finds that as retention elections draw near, judges soon to face voters change their behavior. "In states where citizen preferences are conservative, judges' decisions become more pro-government as retention elections draw closer, but in states where citizens are more liberal, judges' decisions become more pro-defendant in the face of retention," Hall writes. When it comes to keeping their jobs, these judges are responsive to the public, just like judges in partisan and nonpartisan states.
Another way to evaluate Missouri Plan states is by what happens to judges once they ascend to the bench. Larry Aspin reports that the average percentage of the vote received by candidates standing for retention in 2010 was 69.5 percent; this was the lowest average percentage of "yes" votes from 1964 to 2010. Additionally, I have found that only three of 231 incumbent state Supreme Court justices - 1.3 percent - were defeated in their retention bids from 1990 to 2004, compared with 5.2 percent of incumbents in nonpartisan elections and 31.4 percent of incumbents in partisan elections. The average percentage of the vote received during that period for incumbents in retention elections was 71 percent. That figure was 57.9 percent in contested nonpartisan elections and 55.7 percent in contested partisan races. "Retention elections seek to have the benefit of appearing to involve the public," says Michael Dimino, a Widener University law professor, "but in actuality function as a way of blessing the appointed judge with a false aura of electoral legitimacy."
It is also worth considering that incumbents face an uphill battle in retention elections. They are not running against an opponent; rather, they are running against some kind of "ideal" judge. Consider three Iowa judges who lost retention bids in 2010. In addition to choosing not to campaign until very late in the process, they weren't running against anyone. It's hard to campaign against an ideal or mythical candidate.
When it comes to campaign spending, the Brennan Center for Justice reported that in 2010, more than $3 million was spent in retention elections. Retention elections used to be quiet, sleepy affairs, but it appears those days are gone. In addition to the three races in Iowa, there were serious campaigns in 2010 to unseat justices in Alaska, Colorado, and Illinois.
Finally, retention elections deprive voters of meaningful choice. Voters might not like Justice A, but they have no idea who her replacement would be if she were voted out of office. Perhaps Justice A is preferable to potential Justice B, but not potential Justice C. How does the voter decide? In essence, these elections effectively disenfranchise the electorate.
In sum, many of the ills that reformers claim plague partisan and nonpartisan elections are also prevalent in retention elections. Before states rush headlong into finding solutions to the issue of judicial selection, they should first diagnose whether there is a problem. Moreover, they should be sure the cure is not worse than the disease. When it comes to the Missouri Plan method of selection, it is far from clear that is the case.
E-mail Chris Bonneau at cwbonneau@gmail.com.
