Abstract
to me after White that judicial selection in this country had strayed from constitutional and republican principles and needed to be reexamined. I was particularly troubled by the trend towards merit selection and away from popular elections, and, since White, I have taken up three legal challenges to the use of merit selection in the states. 2 Merit selection is inherently perilous to a well-functioning democracy and is fundamentally illegitimate because it permits groups of selected elites, not the People, to choose our policy makers, i.e., judges. Merit selection is founded on the erroneous belief that expertise is the only quality necessary for a person to be a good judge because it claims to ignore an even more important qualification: judicial philosophy. The art of judging is not merely the product of skill and experience; judging depends heavily on the perspective, values, and judicial philosophy of the judge. Law-making is at the heart of common-law judge’s 3
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