Many states use systems of merit-based judicial selection for supreme court appointments. Under “merit selection,” an independent commission screens judicial candidates before the governor makes a final appointment. Proponents of these systems claim that by limiting gubernatorial influence over the selection process, merit selection protects judicial independence from partisan intrusion. This study evaluates such claims by comparing the recent ideological voting behavior of judges appointed by Republican and Democratic governors in three states. Those states, Kansas, Missouri, and Colorado, use three different types of merit selection—bar-controlled, hybrid, and governor-controlled, respectively—that grant the governor varying degrees of influence over the judicial selection process. This study finds the largest gap between the voting behavior of Republican- and Democratic-appointed judges in Colorado and the smallest gap in Kansas, with Missouri falling in between. These results show how increased gubernatorial influence over the judicial selection process translates into a judiciary that is more ideologically polarized. This ideological polarization limits judicial independence but is indicative of greater democratic control, as exercised by the popularly elected governor, over the state judiciary. In relative terms, Colorado maximizes political accountability, Kansas maximizes political independence, and Missouri strikes a balance between the two goals.
Gubernatorial Influence in Merit-Based Judicial Selection: Kansas, Missouri, and Colorado, 2012–2021,
88 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol88/iss1/7