James Sample, who does some of the best legal work on judicial selection mechanisms, has posted this draft on SSRN (forthcoming Depaul Law Review). Here is the abstract:
The vast majority of judicial selection discussions, whether in academia, on the bench, or in the bar, portray an unintended erudition. Although dressed down in the sartorial language of pragmatics, judicial selection debates are, albeit unintentionally, actually abstract philosophical discussions of competing Platonic Forms. The debates exist in an ethereal realm entirely separate from the earthly grime of the manner in which judges are actually selected. This Article asserts that, while the Forms debate has its place, its high temperatures, infinite circularity, and chasm of separation from the actual day-to-day grind of administering justice for the rule of law’s true consumers, renders the debate a luxury that, as a citizenry, we should no longer blindly indulge. Instead of asking “which method of judicial selection is ‘best,’” we should ask “how can we improve our current judicial selection systems, whatever they may be?”
The purpose of this Article is simple: to encourage the de-emphasis of the Forms version of the judicial selection debate in favor of a heightened focus on incremental improvements that actually redound to the benefit of litigants and the citizenry. Scholarly energies ought to be refocused from lofty Forms questions to the less lofty, but no less difficult, questions of incremental improvements. This is not to say that the Forms debate does not matter. After all, “[w]e should care about how America picks its judges because we should care about who becomes judges because we should care about the decisions that judges make.” We should care because judges interpret constitutions and statutes; because judges create law; and because judges “are powerful people who control the fates of parties who petition the courts to resolve their disputes.” The Forms debate, perhaps because of its endlessness, offers substantial guidance as to the strengths and weaknesses of various modes of selection. But at a certain point, we must stop merely repackaging old arguments as new, and must devote energy, through academic work or advocacy, towards improving the systems that real people come in contact with every single day.