Bar Association Surveys and the Merit Retention of Judges: An Empirical Analysis

Abstract

Traditionally in the United States, the selection and retention ofjudges has been a part of the electoral process. Dissatisfaction with the electoral method has resulted in the merit plan, aformat whereby judges are initially selected by the executive branch of government and thereafter stand unopposedfor retention election. To assist voters with the retention decision, local bar associations sometimes provide assessments of judicial performance. Arizona amended its constitution in 1974 to provide for merit selection and retention ofjudges. Prior to a retention plebiscite in 1978, several bar associations in Arizona polled their members to elicit evaluations ofjudicialperformance. The results, characterized as a rational, professional assessment of judges, were publicized in an attempt to educate voters in a retention plebiscite. There is empirical evidence which suggests that the results of the bar associations'polls perhaps are not as rational as the legal community suggests. Rather than a summary decision based on an assessment of 12 performance criteria, lawyers'recommendations for or against the retention ofjudges appear to have been afunction of: (a) both necessary and sufficient conditions among the performance criteria rated; (b) the overall performance criteria rated by the lawyers; and (c) characteristics of the lawyer respondents.