During the twentieth century, judicial reformers attempting to depoliticize the selection of state court judges and increase respect for the courts advocated moving from competitive elections for judges to "merit selection" or - as it was initially known - the "Missouri Plan." During the 1960s and 1970s, these reformers enjoyed considerable success. Whereas in 1960 only three states - Alaska, Kansas, and Missouri - employed merit selection to choose state supreme court justices, by 1980 eighteen did so. Of course, adoption of merit selection did not altogether eliminate judicial elections, because judges appointed under merit selection are in most states obliged to run periodically in retention elections. Yet this requirement did not unduly concern judicial reformers, because they believed that retention elections differ fundamentally from partisan and non-partisan elections, in that they tend to banish partisanship and facilitate well-informed choices by voters. Moreover, reformers recognized that, even if incumbent judges were defeated, this would not elevate unqualified persons to the bench since the nomination of their replacements would remain in the hands of non-partisan judicial selection commissions. Whether merit selection in fact reduces the influence of politics in judicial selection and elevates the quality of the judiciary has been the subject of considerable debate - one where social scientists have played an increasingly prominent role. This Article contributes to that debate by assessing whether retention elections serve the purposes for which they were created. However, this inquiry is only one part of a comprehensive assessment of merit selection and retention elections. One must also consider whether the ends that merit selection seeks to foster are the appropriate aims for a system of judicial selection and whether the proponents of merit selection have a persuasive understanding of the problems facing the courts. To clarify this point, this Article begins by describing the political context out of which merit selection arose and the implications of that history for the present day.
G. Alan Tarr,
Do Retention Elections Work,
74 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol74/iss3/10