What are the pros and cons of the merit appointment system of selecting judges?

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Most constitutional governments, including the United States' government, use three branches of government—the legislative, executive, and judicial—and rely on a system of checks and balances to ensure that none of these branches gain too much power over the others. Because the branches that are the most likely to gain an...

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Most constitutional governments, including the United States' government, use three branches of government—the legislative, executive, and judicial—and rely on a system of checks and balances to ensure that none of these branches gain too much power over the others. Because the branches that are the most likely to gain an exorbitant amount of power and then to use that power for political purposes are the executive branch and the legislative branch, democracies need to have a judicial branch that is free from political pressures.

The existence of this political pressure drives the list of the pros and cons of having a merit-based appointment system for the judges on the judiciary.

The biggest pro of having a merit-based system of appointment is simple: you get the best and most qualified judges sitting on the bench. In theory, these judges would be the best equipped to deal with the complicated questions of justice that judges see every day. Their knowledge of the law and how it can be applied to particular circumstances would allow them to resolve disputes in ways that are objectively correct.

Another important pro of having a merit-based system of judicial appointments is that it takes the process out of the hands of voters, avoiding one of the most popular alternatives to judicial appointments. Voters are predominantly laypeople who live without an extensive knowledge of the law and what it means to be a good judge. They are unlikely to recognize the differences in the makeup of an effective judge and an ineffective one and are nearly as likely to vote for bad judges as they are to vote for good ones. Additionally, allowing voters to choose judges, in a way, makes judicial appointment political: voters will vote for judges they agree with, and if popular opinion swings in a way that becomes unconstitutional (an outrageous example would be if, suddenly, the majority of people thought slavery was acceptable again), it may result in numerous judges who thought in the same vein. A merit-based appointment system prevents voters from making this mistake.

However, any judicial appointment system is rife with cons as well.

The chief con with appointing judges is that, paradoxically, it may be just as political as letting regular voters select their judges. Instead of getting judges who cater to popular opinion through the voting process, the appointment process results in judges who cater to the opinion of only a small set of people: whoever is on the appointment panel. Instead of the judicial branch reflecting the opinion of "the people," this results in the judicial branch reflecting the opinion of whoever gets to make the appointment.

This first con hints at the real problem with a "merit-based" appointment system for judges: what is "merit"? There are numerous ways of thinking about justice—so many that there is an entire field of thought for it, called jurisprudence. Even the best judges disagree with one another: look at the Supreme Court of the United States, which is filled with constitutional scholars from Ivy League law schools who have decades of experience as lawyers and judges, splitting 4-4-1 in the pivotal Obamacare case, National Federation of Independent Business v. Sibelius. In the end, judicial "merit" can be political as well. Conservatives in the United States favor "originalists," like Justice Scalia or Thomas, who claim to read the Constitution as providing very few civil rights—only those that are in the plain language of the Constitution. Liberals, on the other hand, favor judges like Justice Ginsburg or Sotomayor, who are willing to expand the language of the Constitution to "create" civil rights that are not mentioned in the Constitution but which are clearly "meant" to be there. For example, consider the right to privacy, which is never mentioned in the Constitution but was "created" from the values of several other amendments.

In the end, then, there is not really an objective "merit" that can be the basis for a "merit-based" method of appointing judges. This potentially means that any "merit-based" system could be used to cover up politically driven judicial appointments from scrutiny.

Finally, another con of a merit-based system of appointing judges is that deciding, once and for all, what it means to be a "good" judge is inherently impirical. Once a merit-based system is in place, all subsequent judges will have only the traits that allow them to sit on the bench. With only a small set of values allowed, only those values will be used to make judicial decisions, which stagnates innovation in the law and prevents society from progressing.

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I agree.  Judges should not be politically elected, because it would be disastrous to have judges act as politicians do.  It is bad enough that politically-inspired laws can be passed by legislators who are beholden to the interest groups that got them elected, we do not also need judges who have to interpret the law in a certain way in order to remain elected.  In my opinion, district attorneys and judges should not be popularly elected on regular, short terms.

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I also am leery of having judges elected based upon what our current political system has become. I would fear that a judge that is elected would owe a debt to his political supporters.

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Unfortunately, we (voters) often choose our elected officials based on superficial elements such as appearance, name, simple recognition rather than merit. If that's a bad thing when it comes to our government representatives, it's a horrible thing for our judges.

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As the purpose of a judicial system is impartial interpretation of the law, merit is everything.  I would much rather have a constitutional scholar, a judge with vast experience in the law itself, than someone with a pretty face and a good election slogan who knows how to be popular.

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The above two posts make it completely clear that it would be very dangerous to elect judges as politicians are elected. To carry out their duties as a judge it is vital that they are impartial, and the party political system and method of voting would guarantee that they would lack that necessary impartiality that is needed.

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In concurrence, judges should not be part of the political system, for then they are beholden to someone and may not be impartial as they should.

The fault of any alliance to a political thinking is evidenced in the Supreme Court appointments as presidents appoint judges with whom they will have an alliance of ideology.  History has recorded cases in which certain judges of the Supreme Court have, in their single presence or in their single absence, made the difference in a ruling.

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As far as I am concerned, there are a lot of pros and really no cons that I think are valid concerns.

The pros are numerous, but what they boil down to is that you want your judges to make their decisions based on the law, not based on what public opinion says or what people who can contribute lots of money to campaigns think.  If you have a non-political body set up to recommend potential appointees (and you let the governor pick which one(s) to actually appoint) then the potential appointees will be selected on legal expertise, not for political reasons.

The only con I can see is that this takes some power away from the voters.  However, I do not think that the voters are the ones who should decide how to interpret the laws.

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