Vol. 6, No. 2 (February, 1996) pp. 31-33
THE IMPACT OF JUDICIAL-SELECTION METHOD ON STATE-SUPREME-COURT
POLICY: INNOVATION, REACTION AND ATROPHY by Daniel R. Pinello.
Westport, CT: Greenwood Press, 1995. 226 pp. Cloth $59.95.
Reviewed by Bradley C. Canon, Department of Political Science,
University of Kentucky
Politicians, practitioners and scholars have long speculated
about what relationship, if any, exists between variations in
judicial selection systems in the American states and the
policies rendered by state courts. Historically, many thought a
relationship existed; otherwise they would not have pushed
reforms such as partisan elections in the Jacksonian era,
non-partisan elections in the Progressive era, and the Missouri
or merit selection plan in recent decades. Yet scholars have
produced little systematic evidence of any linkage. In good part,
this is because it takes a considerable research effort to
ascertain enough state judicial policies to produce reliable
findings. There is no widespread data base containing
quantitative summaries of state supreme court decisions. Even if
such data were available, they would be of marginal utility.
Basic statistical research -- what percentage of criminals or
businesses, etc., win on appeal -- is not the same thing as
determining judicial policies.
So scholars have largely explored this question indirectly,
usually by linking state selection systems with the
characteristics of state supreme court justices in those systems.
The assumption is that courts having more Democrats,
non-Protestants, pre-appointment plaintiff oriented practices,
less prestigious college and law school degrees, etc., will
generate more liberal judicial policies. But while there is some
evidence to this effect, it is hardly an assumption that can be
taken for granted on a broad scale. Even more problematical,
research seems to show that there is not a lot of variety in
background characteristics across states, except as they reflect
religious, political or socio-economic differences between the
states. As Elliott Slotnick put it a few years ago,
"judicial recruitment ... is not an area where great
theoretical advances of broad interest and applicability are
likely to be made" (1988: 121).
Now comes Daniel Pinello who offers us the first direct test of
the impact of selection system on state supreme court policies.
THE IMPACT OF JUDICIAL-SELECTION METHOD ON STATE-SUPREME-COURT
POLICY is a revision of his Ph. D. dissertation. His primary
focus is "whether the method of judicial selection
substantially affects policy made by American state supreme
courts" (1). He compares three methods of selection:
gubernatorial appointment (GA), legislative election (LE) and
partisan election (PE) by the voters. Pinello cleverly employs a
matched pair strategy that compares a state using one system with
a neighboring state using another system. The proximity controls
for regional variation. Three pairs are matched: Connecticut (GA)
and Rhode Island (LE); New Jersey (GA) and Pennsylvania (PE); and
Virginia (LE) and West Virginia (PE). The policy comparisons come
from three areas: criminal justice, business law and family law.
Five to seven policies in each area that are decided by both
courts in a pair are compared.
Pinello essentially tests four
Page 32 follows:
hypotheses: (1) PE system judges prefer the state over the
individual and both over business when these interests clash; (2)
GA judges prefer business over the individual and both over the
state when interests clash; (3) LE judges defer to the policies
of other branches and are least likely to engage in innovation;
and (4) GA judges are the most innovative and the most
libertarian. Innovation is defined as the adoption of new (to the
state) policies that have little support in precedent,
legislation or administrative practice.
Pinello's central conclusion is that the data "show that the
conventional wisdom of the 1980s among professional political
scientists that selection method has no meaningful impact is
mistaken" (130). PE judges, he believes, react to public
opinion while GA ones (who don't have to face a confirmation
vote) are free of this constraint. The 19th century rejection of
GA judges for being major protectors of business and property is
anachronistic in the late 20th century; indeed, they are now the
least protective. LE judges embody cautious inaction. Pinello
goes on to muse that it is because federal judges are appointed
that they have become the champions of individuals against both
business and the state.
Specifically, the findings support the third hypothesis most
strongly. LE courts are clearly more deferential and timid than
the others. The fourth hypothesis is also confirmed. The first
hypothesis is borne out in the criminal justice area, but not
otherwise. GA judges prefer both the individual and the state
over business so the second hypothesis is not confirmed, although
these judges do prefer individuals over the state.
Unfortunately, Pinello's choice of legal policy areas is not very
conducive to testing the first two hypotheses. The business law
cases mostly involve tort policies and thus seldom feature
clashes between business and the state. Family law cases don't
involve businesses and often don't involve the state and thus are
not useful for testing the first two hypotheses.
Moreover, Pinello is also annoyingly broad in stating his
hypotheses and conclusions. For example, he concludes that GA
courts prefer policies favoring the individual over the state, or
that their policies are "more libertarian" (18) than
those of other courts. But the individual versus state hypothesis
is tested only in the context of criminal justice policies.
Libertarian isn't a term normally used in evaluating criminal
justice policies (in contrast to police power, privacy or freedom
of expression cases). And certainly there are many state versus
individual policy clashes that don't involve criminal appeals. In
short, the careful reader must restate Pinello's hypotheses and
findings much more precisely to make them useful.
Pinello's investigation is also incomplete because it focuses on
only three selection systems: LE, GA and PE. The first prevails
in just three states, the second in only seven, and 13 states use
PE. That leaves two systems used by over half the states
uncovered. Pinello somewhat cavalierly lumps non-partisan
election and merit plan selection together with the PE system,
asserting that because all such judges must stand for reelection
or retention, they will all
Page 33 follows:
act alike. The fate of California's Rose Bird is cited in
justification for including merit selection with the two election
systems. Except for LE (where judges are often former legislators
and thus deferential to their old institution), Pinello assumes
that the selection system is less important than the retention
system and so his findings about the PE system are equally valid
for merit plan states (as well as non-partisan states). The
problem with this assumption is that it is unverified. Just as
Pinello did not accept the "conventional wisdom" that
selection system had little relationship to policy, I cannot
accept the untested "wisdom" that judges, regardless of
how they are selected, will manifest no systematic policy
differences if their retention depends upon any kind of popular
approval.
Although limited, Pinello's research mounts a serious challenge
to the widely held notion that selection system is not very
relevant to policy outcomes. He shows convincingly that LE and GA
systems produce different policies in some areas of law and that
PE system policies seem to fall between the two. Beyond its
findings, however, THE IMPACT OF JUDICIAL-SELECTION METHOD makes
a significant contribution because it shows us how to obtain
answers to this decades-old question about the linkage between
selection system and judicial policy. Investigating American
state supreme courts' choices when faced with similar policy
issues, along with controlling for region with matched pairs when
feasible, will reveal much. Scholars need to expand on Pinello's
work, extending it to other selection systems, to more states
within selection systems and to other policy choices that face
state supreme courts. THE IMPACT OF JUDICIAL-SELECTION METHOD
fairly invites further scholarly pursuit of this long debated
question.
Unfortunately, such research is not easily accomplished.
Exploring and comparing judicial policies (particularly common
law ones as many will be) rather than using a quantitative
approach is a time consuming undertaking that requires a good
understanding of the contexts and complexities of legal
doctrines. Scholars with legal training or sufficient experience
in navigating through legal research sources are best fitted
here. But while formidable, the task can be accomplished with
hard work; there are no major obstacles. If we want a thorough
answer to the "does selection system affect policy and, if
so, how" question, we should follow Pinello's lead.
REFERENCE
Slotnick, Elliott E. "Review Essay on Judicial Recruitment
and Selection" 13 JUSTICE SYSTEM JOURNAL 109 (1988)
Copyright 1996