However, electing judges, especially having them elected by the common non-lawyer people, is a thought that all German attorneys, judges, and prosecutors I know can hardly accept as serious possibility to get them on the bench. In Germany, only the best few percent of all graduates of the final law school exams qualify for being judge or prosecutor, and they are simply hired by the states’ departments of interior and/or legal affairs. After a period of two years they are usually finally hired as a kind of state servants “for life”. So they are sure to be independent of the trial’s parties.

Downside: A middle-aged judge who sees himself already at the highest step of his career ladder may be a bit slower and lazy…

Retention elections allow us to remove the rare really awful judge from the bench if need be without the downsides of having judges elected in a partisan election.

Readers should also be aware that this topic also came up in last week’s excellent NewTalk.org discussion of judicial activism. (See: http://newtalk.org/2008/07/what-is-the-role-of-the-courts.php.)

Our friend Ted Frank had this to say:

Robert Joffe suggests that the problem with judges is that they are largely selected through “elections or political appointments, rather than true merit selection.” I query what he means by “true merit selection.” Missouri ostensibly has a “merit selection” process that is often held up as a model, but one sees no indication that Missouri judges are superior to other judges. Indeed, the Missouri merit selection process has been notoriously captured by the special interest of the plaintiffs’ bar.

On the Missouri point, Ted linked to the following Federalist Society report: http://www.fed-soc.org/publications/PubID.90/pub_detail.asp.

The report notes in part:

The classic study of the first 25 years of merit selection in Missouri is a book by Richard A. Watson & Rondal G. Downing, The Politics of the Bench and the Bar (1969). A recent textbook summarizes their findings as follows:

[I]n the process of selecting lawyer members of the nominating commissions, attorneys tended to split into two groups [plaintiffs’ lawyers and defense lawyers], much in the manner of a traditional two-party system. Far from bringing more Aprofessional values to bear on the selection process, the attorneys tended to focus on more tangible selection criteria, in particular the socioeconomic interests of their clients . . . . As it turned out, these competing plaintiff and defendant bar interests were about equally successful in obtaining commission seats, the result being a rather well-balanced two-party competition in the Kansas City and St. Louis bars.

Thus, far from taking judicial selection out of politics, the Missouri Plan actually tended to replace politics, wherein the judge faces popular election (or selection by a popularly elected official), with a somewhat subterranean process of bar and bench politics, in which there is little popular control.

It appears that the situation in Missouri has deteriorated even further since Watson and Downidle wrote in 1969. In a recent Rule of Law column in the Wall Street Journal, Elliot Kaplan opined that Missouri is Acreeping up on our famous brethren Alabama and Texas in the adoption of inefficient tort law. According to this Kansas City lawyer, Missouri currently suffers from runaway jury verdicts, a judiciary afraid to make necessary reforms, and a legislature and state government controlled by the plaintiffs’ bar.” Kaplan notes the increase in large damage awards by Missouri juries, explaining that in 1995 four of the six largest jury verdicts in the country were awarded in Missouri.