Politicians, practitioners and scholars have long speculated about what relationship, if any, exists between variations in judicial
selection systems in the American states and the policies rendered by state courts. Historically, many thought a relationship
existed; otherwise they would not have pushed reforms such as partisan elections in the Jacksonian era, non-partisan elections
in the Progressive era, and the Missouri or merit selection plan in recent decades. Yet scholars have produced little systematic
evidence of any linkage. In good part, this is because it takes a considerable research effort to ascertain enough state judicial
policies to produce reliable findings. There is no widespread data base containing quantitative summaries of state supreme court
decisions. Even if such data were available, they would be of marginal utility. Basic statistical research -- what percentage of
criminals or businesses, etc., win on appeal -- is not the same thing as determining judicial policies.
So scholars have largely explored this question indirectly, usually by linking state selection systems with the characteristics of
state supreme court justices in those systems. The assumption is that courts having more Democrats, non-Protestants,
pre-appointment plaintiff oriented practices, less prestigious college and law school degrees, etc., will generate more liberal
judicial policies. But while there is some evidence to this effect, it is hardly an assumption that can be taken for granted on a
broad scale. Even more problematical, research seems to show that there is not a lot of variety in background characteristics
across states, except as they reflect religious, political or socio-economic differences between the states. As Elliott Slotnick put
it a few years ago, "judicial recruitment ... is not an area where great theoretical advances of broad interest and applicability are
likely to be made" (1988: 121).
Now comes Daniel Pinello who offers us the first direct test of the impact of selection system on state supreme court policies.
THE IMPACT OF JUDICIAL-SELECTION METHOD ON STATE-SUPREME-COURT POLICY is a revision of his Ph.
D. dissertation. His primary focus is "whether the method of judicial selection substantially affects policy made by American
state supreme courts" (1). He compares three methods of selection: gubernatorial appointment (GA), legislative election (LE)
and partisan election (PE) by the voters. Pinello cleverly employs a matched pair strategy that compares a state using one
system with a neighboring state using another system. The proximity controls for regional variation. Three pairs are matched:
Connecticut (GA) and Rhode Island (LE); New Jersey (GA) and Pennsylvania (PE); and Virginia (LE) and West Virginia
(PE). The policy comparisons come from three areas: criminal justice, business law and family law. Five to seven policies in
each area that are decided by both courts in a pair are compared.
Pinello essentially tests four
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hypotheses: (1) PE system judges prefer the state over the individual and both over business when these interests clash; (2) GA
judges prefer business over the individual and both over the state when interests clash; (3) LE judges defer to the policies of
other branches and are least likely to engage in innovation; and (4) GA judges are the most innovative and the most libertarian.
Innovation is defined as the adoption of new (to the state) policies that have little support in precedent, legislation or
administrative practice.
Pinello's central conclusion is that the data "show that the conventional wisdom of the 1980s among professional political
scientists that selection method has no meaningful impact is mistaken" (130). PE judges, he believes, react to public opinion
while GA ones (who don't have to face a confirmation vote) are free of this constraint. The 19th century rejection of GA judges
for being major protectors of business and property is anachronistic in the late 20th century; indeed, they are now the least
protective. LE judges embody cautious inaction. Pinello goes on to muse that it is because federal judges are appointed that
they have become the champions of individuals against both business and the state.
Specifically, the findings support the third hypothesis most strongly. LE courts are clearly more deferential and timid than the
others. The fourth hypothesis is also confirmed. The first hypothesis is borne out in the criminal justice area, but not otherwise.
GA judges prefer both the individual and the state over business so the second hypothesis is not confirmed, although these
judges do prefer individuals over the state.
Unfortunately, Pinello's choice of legal policy areas is not very conducive to testing the first two hypotheses. The business law
cases mostly involve tort policies and thus seldom feature clashes between business and the state. Family law cases don't
involve businesses and often don't involve the state and thus are not useful for testing the first two hypotheses.
Moreover, Pinello is also annoyingly broad in stating his hypotheses and conclusions. For example, he concludes that GA
courts prefer policies favoring the individual over the state, or that their policies are "more libertarian" (18) than those of other
courts. But the individual versus state hypothesis is tested only in the context of criminal justice policies. Libertarian isn't a term
normally used in evaluating criminal justice policies (in contrast to police power, privacy or freedom of expression cases). And
certainly there are many state versus individual policy clashes that don't involve criminal appeals. In short, the careful reader
must restate Pinello's hypotheses and findings much more precisely to make them useful.
Pinello's investigation is also incomplete because it focuses on only three selection systems: LE, GA and PE. The first prevails in
just three states, the second in only seven, and 13 states use PE. That leaves two systems used by over half the states
uncovered. Pinello somewhat cavalierly lumps non-partisan election and merit plan selection together with the PE system,
asserting that because all such judges must stand for reelection or retention, they will all
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act alike. The fate of California's Rose Bird is cited in justification for including merit selection with the two election systems.
Except for LE (where judges are often former legislators and thus deferential to their old institution), Pinello assumes that the
selection system is less important than the retention system and so his findings about the PE system are equally valid for merit
plan states (as well as non-partisan states). The problem with this assumption is that it is unverified. Just as Pinello did not
accept the "conventional wisdom" that selection system had little relationship to policy, I cannot accept the untested "wisdom"
that judges, regardless of how they are selected, will manifest no systematic policy differences if their retention depends upon
any kind of popular approval.
Although limited, Pinello's research mounts a serious challenge to the widely held notion that selection system is not very
relevant to policy outcomes. He shows convincingly that LE and GA systems produce different policies in some areas of law
and that PE system policies seem to fall between the two. Beyond its findings, however, THE IMPACT OF
JUDICIAL-SELECTION METHOD makes a significant contribution because it shows us how to obtain answers to this
decades-old question about the linkage between selection system and judicial policy. Investigating American state supreme
courts' choices when faced with similar policy issues, along with controlling for region with matched pairs when feasible, will
reveal much. Scholars need to expand on Pinello's work, extending it to other selection systems, to more states within selection
systems and to other policy choices that face state supreme courts. THE IMPACT OF JUDICIAL-SELECTION METHOD
fairly invites further scholarly pursuit of this long debated question.
Unfortunately, such research is not easily accomplished. Exploring and comparing judicial policies (particularly common law
ones as many will be) rather than using a quantitative approach is a time consuming undertaking that requires a good
understanding of the contexts and complexities of legal doctrines. Scholars with legal training or sufficient experience in
navigating through legal research sources are best fitted here. But while formidable, the task can be accomplished with hard
work; there are no major obstacles. If we want a thorough answer to the "does selection system affect policy and, if so, how"
question, we should follow Pinello's lead.
REFERENCE
Slotnick, Elliott E. "Review Essay on Judicial Recruitment and Selection" 13 JUSTICE SYSTEM JOURNAL 109 (1988)
