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. Such a sortition process could even be adopted to replace
or supplement partisan nomination for other elected positions, including for
candidates for 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.