Sortition for Judges

Jon Roland

There is a longstanding debate concerning how best to select judges. Most of the debate is between advocates of only two basic methods: appointment or election. Appointment is usually by an executive branch official, and requires the consent of at least one house of the legislative branch. Election can be partisan, "non-partisan", or "retention" of an appointed judge.

It is perhaps surprising that more attention has not been paid to the alternative of sortition — selection by a random process — perhaps interleaved with some kind of examination process to screen out unqualified contenders. In other words, by a process similar to that which we use to select trial juries, and arguably are supposed to use to select grand juries.

The difficulties with appointment and election are well-understood. In the early days of the Republic it was naively thought that executive officials would nominate only persons of superior merit, and legislatures would confirm them, without regard for their ideological tendencies. That quickly fell apart with the partisan way President John Adams made judicial appointments during the last days of his administration after his party lost the election of 1800, most notably of John Marshall as Chief Justice of the Supreme Court. Subsequent appointments of judges, at both federal and state levels, tended to be of persons who the nominating official expected would support his positions in court.

Early proponents of electing judges expected, with similar naivete, that the electorate would choose judges based on their reputations as men of outstanding judicial competence and impartiality. That might have worked to some degree in small communities where the candidates could become known to most of the electorate, at a time when a candidate didn't need to spend much money to get elected to any office, because public demand for candidacy information made it profitable for newspapers to print it, but by the middle of the 19th century, that situation changed.

The problem was brought home to me back in the 1980s when an incompetent and prejudiced district court judge in Texas, where such judges are elected, who had been voted the worst judge in the district by the lawyers there, was nominated for and elected to the Texas Supreme Court, with the support of those same lawyers, as a way to get him out of the district. They figured he could do less harm as one of several judges on the Supreme Court.

A process similar to sortition is sometimes used in some jurisdictions to assign judges to cases, although more often there is a presiding judge who can intervene to assign cases manually. Ostensibly that is done to balance the load on their dockets, allow for time off, and other factors, but we have seen that it is sometimes an opening to the corrupt practice of assigning a case to a judge who is not impartial in that case.

The usual reaction to proposals to select judges by some sortition process is that it would not result in selecting the most qualified persons for those positions, which require a high level of legal training and ability. Unfortunately, one has to ask whether the present practices do that either. Too often it seems that judicial appointments go to lawyers who aren't good enough to make it in private practice, although such incompetents are also often supported for election to public offices like Congress. Short of drafting the best lawyers to serve, at least for limited periods, as judges, how do we get the best qualified to serve in that critical office?

A selection process might work as follows:

1.  Sortition would be used to empanel one or more grand juries to supervise the original selection of members of a candidate pool, which would automatically include lawyers in practice in the area, legal historians, philosophers, and other persons who make a minimum score on a qualifying exam open to any citizen of an age and residency that qualify him or her for the positions to be filled.
   
   
2.  That grand jury would then supervise the sortition of the large pool into a smaller pool consisting of, say 100 candidates for each position to be filled, and a second sortition from that larger pool of a second grand jury to supervise the next stage of the process. Each member might have a certain number of strikes to be used to exclude obviously unqualified candidates, if supported by, say, at least four other members.
   
   
3.  That second grand jury, consisting of none of the persons in the reduced candidate pool, would then supervise the taking by the candidates of further examinations, two-thirds of the questions of which would be on the federal (and perhaps state) constitution, its legislative history, the writings of its founders and those that influenced their thinking, and the remaining one-third on judicial procedure in the court in which the judges would serve. Participation would be mandatory, and while a candidate could choose to deliberately do poorly on the examination if he didn't want to serve as a judge, it would be hoped that the stigma of doing poorly would be a sufficient deterrent to prevent most of them from taking that course.
   
   
4.  The final selection of judges would be sortition of those who scored above, say, the 80-percentile point on the examination

Each judge thus selected would serve for a limited term, perhaps a year or two, perhaps only on a part-time basis. He would have no career path ahead of him to influence his decisions, and he would be shielded from personal liability for taxes and other claims that might be used to impair his judicial independence.

I would also advocate that, in association with such a system, most courts have multi-judge panels, with members presiding in rotation, and make it a rule that for any question involving a right of an individual against a delegated power of government, the presumption rest with the individual, and that it would require a unanimous vote of the judicial panel to sustain the position of the government. In this way, judicial panels would be governed by a similar rule to that for trial juries for verdicts in criminal cases.

In this system, judges would not be paid as much as they are today, but more would be selected, and would serve for shorter terms, thus distributing the burden of judicial service over a larger number of citizens. In particular, there would be more appointments to appeals positions, so that more cases could be heard on appeal on their merits. The training they might need would be provided at public expense, since it would no longer make sense to require judicial candidates to pay for their own training, other than that which would enable them to score high on the examination questions on judicial procedure.

It has been suggested that such a system would unduly increase the influence of full-time professional judicial staff persons, which is already a problem. The solution is likely to be to apply a similar sortition process to the selection of judicial staff.

The question also arises of how a radical departure from tradition like sortition might be adopted in jurisdictions where judicial election is entrenched, perhaps in a state constitution. In such jurisdictions, the legislature can prescribe procedures for getting on the ballot, and it could provide that a sortition process like that described above could be used to reduce the number of candidates on the ballot to two, the final selection to be made by popular election. Sortition could be adopted to replace or supplement partisan nomination for elected executive and legislative positions.

Another approach would be to select judges not for particular courts, but for membership in a general pool, nationwide for federal judges, statewide for state judges, and assign them at random to particular courts for short periods of time, and to particular cases. It would also help to always assign panels of at least three judges to every trial. The inconvenience of having to move around could be alleviated by making it a part-time job, selecting many more judges than needed for cases, allowing judges to serve most of their time clerking, researching, writing, or teaching. It could also give them more time to study cases and deliberate on them more thoroughly.