Sortition for Judges
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
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:
- 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.
- 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.
- 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.
- 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
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
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.