Dustin Houchin: Selecting the selectors: Political bias in choosing judges

Indiana selects its Supreme Court justices and Court of Appeals judges through a commission-based process commonly known as the Missouri Plan. That process is commonly defended on the theory that it keeps politics out of judicial selection. The data suggest that defense doesn’t hold up, however, prompting a closer look at the selection model.

There are four basic ways judges are selected in the United States: (1) appointment by elected officials; (2) partisan elections; (3) nonpartisan elections; and (4) selection by a commission. There has been no research specific to Indiana, and we have a fine selection of higher court jurists. But Vanderbilt law professor, Brian Fitzpatrick has compared methods of judicial selection across several states, examining the ideological affiliations of state appellate judges over a 20-year period and measuring them against each state’s electorate.

Fitzpatrick found that judges selected by commission and, to a similar degree, by nonpartisan election showed the sharpest ideological skew away from their state’s population. That skew ran consistently to the left, regardless of the state’s own politics. Judiciaries chosen by appointment or by partisan election tracked their electorates far more closely, with appointment producing the closest match of all. (Brian T. Fitzpatrick, The Ideological Consequences of Selection: A Nationwide Study of the Methods of Selecting Judges, 70 Vand. L. Rev. 1729 (2017).)

Simply put, in conservative-leaning states that select judges by commission, the resulting bench tends to be more liberal than the state’s population at large.

Part of the explanation for this phenomenon is the makeup of the commissions. Lawyers are the primary group selecting the commission members who, in turn, select high court judges. Fitzpatrick notes that judicial selection commissions are usually heavily influenced by lawyers’ organizations, as is the case in Indiana, and that the legal profession itself leans left of the general public. (See Adam Bonica, Adam S. Chilton & Maya Sen, The Political Ideologies of American Lawyers, 8 J. Legal Analysis 277 (2016).)

None of this means commission selection is corrupt or that its members are acting in bad faith. It means the process does not do what it is often said to do. Removing direct elections from judicial selection does not remove ideology from the outcome; it relocates the decision to a smaller body that is less representative of the population the judiciary ultimately serves.

This matters, because judicial ideology is not simply a political label. There are real interpretive differences between jurists. For instance, on one side is originalism and textualism, and on the other a more pragmatic or evolving approach to constitutional and statutory text. Those differences shape outcomes. If ideology is unavoidably part of judicial selection no matter the method, then it’s worth asking which method most transparently reflects the values of the people the courts serve.

Selection by appointment, partisan election and nonpartisan election all carry their own trade-offs, and reasonable people disagree about which of them best balances independence, accountability and legitimacy. But the specific claim that commission selection is the least political of the available options is not supported by the data and deserves more scrutiny than it usually gets.

The pattern suggests judges reflect the values of the group that selects them. Who, then, should select them?•

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Houchin is the Washington County Superior Court judge in Salem. He also is the publisher of Judex, a Substack newsletter on conservative judicial issues at judex.substack.com. Opinions expressed are those of the author.