Category: Volume 56 No. 2

There is only one reason why I should be included in the group of distinguished contributors to this symposium on an independent judiciary in Michigan, and that reason is expressed by the old joke that an expert is someone from out of town. I am not an authority on judicial selection. I am not myself a judge. I am not even from Michigan. Nor do I have an opinion about how judges should be selected—at least not one I am going to express in this comment. I am instead an author of books and articles on constitutional and legal history (and on property law, but that is beside the point). To the extent that I have focused on one state, that state has been North Carolina, where I have taught law for over thirty years. Read More …

In the spring of 2008, I was invited to participate in a panel discussion with Professor Charles Geyh on judicial selection. Professor Geyh had been a frequent and articulate critic of judicial elections, and I had been a skeptical supporter. But on the day of the discussion, we surprised each other. I had argued in favor of judicial elections based on principles of democracy—judges decide matters of policy based (at least in part) on the judges’ policy preferences, and therefore increasing public input into judicial selection makes those policy decisions more reflective of the public will. In my remarks that day, however, I acknowledged that different courts engaged in policy-making to different extents. As a result, I suggested that different methods of selection might be appropriate for different courts, so that the public would be able to exert some influence over the courts that make the most policy unconstrained by existing law, while other courts would be provided with greater independence. Read More …

On Monday, May 14, 1787, the first delegates assigned to the task of revising the American federal system of government began to assemble in Philadelphia. Over the course of the following weeks, delegates from across the colonies arrived and took their seats in assembly. An intense debate ensued over whether, and how, to scrap the Articles of Confederation and replace them with a new guiding document. The delegates were divided over multiple issues, such as how to fund the federal government, what legal weight to give to treaties, and, notably, how to handle the question of slavery. Yet, however varied their views on the intricate details, the delegates ultimately determined that they were bound by one common principle: America should be a place where the people govern. Read More …

There is no perfect system for selecting state supreme court justices. My first title for this Article was Two and a Half Cheers for the Appointment System, which eventually became, Two Cheers for the Appointment System, as I recognized that some of my inherent support for the appointment system may have been overly influenced by my support for the federal system and the New Jersey system with which I basically grew up. I can remember, as a new lawyer and law professor, being disappointed when campaign advertisements would appear for judges from other states. I can still recall a commercial where a judge running for office was pictured slamming a jail house door and saying something to the effect that he would be tough on crime. As I analyzed my own arguments in favor of the appointment system while working through the various arguments pro and con I became less sure of my own position. However, the ultimate conclusion of this paper is still that the appointment system—appointment by the governor with advice and consent of the state senate—is a better system than an elective system or the so-called merit or Missouri system. I realize that in light of the opinion of some that position makes me an elitist as opposed to a populist. Read More …