Weighing Democracy and Judicial Legitimacy in Judicial Selection

Abstract

For over two centuries Americans have debated whether judges should be elected or appointed. While the explicitly framed tension has been about the relative importance of judicial independence and judicial accountability in a democracy, the underlying issue has been about which structure better promotes the legitimacy of the judiciary. An institution has legitimacy when it enjoys diffuse support even for controversial decisions. Judicial legitimacy is in inherent tension with a judiciary in a democracy, since democracy implicitly assumes political elements to selection of all leaders (including judges), while judicial legitimacy is undermined by politics. The contemporary work on the relationship between judicial selection methods and legitimacy does not support a clear preference for judicial election versus judicial appointment. This Article proposes that in order to promote judicial legitimacy in a democracy, consideration should be given to a civil service-like, nonpartisan, objective merit screening of judicial aspirants - whether the aspirant ultimately is selected through election or appointment.