Why Mass. chose an anti-democratic method of naming judges

Credit John Adams and Rufus Choate

THE ELECTION for a seat on the Wisconsin Supreme Court mercifully ended last month.  After $45 million in political donations, Wisconsin has a new justice.

The “campaign” included charges that the candidates had stated positions on constitutional questions likely to come before the court and had failed to pledge to recuse themselves from future cases presenting the same issues. Whatever the future course of Wisconsin law, the Badger State has given the nation a bracing lesson on the different methods of selection of judges on state courts.   Here in Massachusetts, where judges have been appointed by the governor—not elected—for centuries (and serve until mandatory retirement at age 70), the Wisconsin fray reminds us of the reasons for the method of selection we chose in 1780.

The Massachusetts Constitution of 1780 confers on the governor the power to appoint all judges, subject to the consent of the separately elected Executive Council.  The drafter of our constitution, John Adams, considered gubernatorial selection and life tenure to be pillars of judicial independence.  In his 1776 pamphlet, “Thoughts on Government,” he wrote:

“The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that. The judges, therefore, should be always men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness, and attention. Their minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men. To these ends, they should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law.”

In his 1780 constitution, Adams codified this principle and added, in Article 29 of the Declaration of Rights: “It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit. It is, therefore, not only the best policy, but for the security of the rights of the people, and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well[.]”

Adams did not consider independence of the judiciary an absolute, however:  his Constitution included (1) impeachment and removal and (2) a bill of address, providing means by which the Legislature alone (impeachment and conviction) or the Legislature and governor (address) could remove a judge.  Despite these legislative means of removal, the Massachusetts tradition of appointment and tenure differs dramatically from the direct election of judges recently on display in Wisconsin.

The federal Constitution of 1787 followed the Massachusetts approach. Federal judges are appointed by the president with the advice and consent of the Senate.  They “shall hold their offices during good Behaviour,” and thus may serve for life.  In The Federalist No. 78, Alexander Hamilton criticized the modes of selection of judges for “temporary” terms, or “periodical appointments,” including by the people:

“Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to [judges’] necessary independence. If the power of making [temporary commissions] was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.”

Despite the early examples of the Massachusetts and federal constitutions, other states have chosen different means for the selection of their state court judges.  In 21 states, all judges are selected by partisan or non-partisan election.  In 11 more states, voters elect some judges, typically for the lower courts.  In several states, the governor appoints all or some judges, subject to confirmation by the legislature or—as in Massachusetts and New Hampshire—an elected “Executive Council.”  In many of the appointive states, an advisory group including sitting judges, lawyers, or others recommend candidates to the appointing authority.  Massachusetts is one of the few states that combines “merit” recommendations with gubernatorial appointment for all judgeships.

Gubernatorial appointment and tenure for judges at all levels of the courts prevailed in Massachusetts into the mid-1800s.  At the Massachusetts Constitutional Convention of 1853, however, proponents of change targeted the means of selection of executive and judicial officers.  Democratic forces of the Jacksonian Era argued that the selection processes for these posts were controlled by an “elite” and harmed the interests of the people.  Other delegates criticized the appointed judges who had enforced the recent Fugitive Slave Act of 1850.  The convention adopted statewide election of executive officers such as the secretary of state, the attorney general, the treasurer, and the auditor, elections held to this day.  Proposals to elect judges, however, were rebuffed, largely by the efforts of one man:  Rufus Choate.

Few who pass through the Great Hall of the Adams Courthouse in Pemberton Square in Boston pause to consider the great bronze figure that surveys the scene.  The statue of Choate—born on a farm on Hog Island in the Essex Marsh, trial lawyer, US congressman and senator, and foremost Boston advocate of his time—draws little attention today.  The statue is the work of Daniel Chester French (1850-1931), sculptor of the statue of Abraham Lincoln in the Lincoln Memorial and the Minuteman Statue at the North Bridge in Concord.   For many years, its most prominent feature was its left boot, which shined more brightly than other portions of the statue, owing to generations of lawyers who rubbed the boot for courtroom luck.

The statue captures Choate delivering his argument supporting gubernatorial appointment and life tenure for judges in the convention of 1853.  At the dedication of the statue in 1898, his cousin, Joseph Hodges Choate—a famed New York lawyer who practiced before elected judges in that state—described the speech as the “greatest single service which [Choate] ever rendered to the profession, and to the Commonwealth, of which he was so proud.”

Delegates to the convention had proposed two amendments designed to end life tenure for the judiciary:  one for the popular election of judges, and another for reappointment by the governor after a 10-year term.  Choate rose in defense of lifetime judicial tenure.  He distilled the competing arguments into two fundamental and related issues:  What are the qualities of an ideal judge, and how would such a judge be best recruited and appointed?  Choate eloquently portrayed his ideal judge as one of wide legal and social knowledge, with deep respect for, and loyalty to, the state and federal constitutions, and “towards whom the love and trust and affectionate admiration of the people should flow.”  Choate argued that elections would not produce such judges.  He also argued that a term limit with possible re-appointment would deter the best applicants and compromise the independence of any judge seeking reappointment.L ife tenure alone, he said, could assure a great judiciary.

Choate also predicted an undue influence of political parties on judicial elections, in a prescient preview of the Wisconsin race.  In 2015, Wisconsin changed its state campaign finance law to allow unlimited donations to political parties.  Though the race for the Supreme Court seat was nominally non-partisan, the two political parties raised and spent millions for their favored candidates.  Choate feared the risks presented by such a path to the bench, tainted by “active service in the ranks of party, victory under [its] banner, and by the warfare of party.”  Choate believed that these democratic tendencies would produce flawed judges, bent by a “too active and vehement political life.”

Choate concluded his oration at the convention and returned to his seat, exhausted.  Joseph Choate, who witnessed the speech as a young boy, recalled the scene:  “It was on one of the red-letter days of my youth that I listened to that matchless argument, and, when it ended, and the last echoes of his voice died away as he returned from the old hall of the House of Representatives . . . all crumpled, disheveled, and exhausted, I said to myself that some virtue had gone out of him . . . but that day it went to dignify and ennoble our profession, and to enrich and sustain the very marrow of the Commonwealth.”

The proposals to end gubernatorial appointment and lifetime judicial tenure were defeated that day.

The issue of judicial selection, however, remains alive.  As T.S. Eliot wrote: “There is no such thing as a Lost Cause because there is no such thing as a Gained Cause.”  Issues seemingly long-settled often recur.  Old arguments are renewed; new arguments made.  Precedents are overruled.  The issue of the election of judges is no different.   Two recent trends ensure that debate over judicial selection and tenure will continue.

First, the selection of even appointed judges to the Supreme Court has spawned political-like campaigns, blurring the lines between the appointive and electoral modes.  Term limit proposals have accompanied these campaigns, which now pit the major political parties and their key interest groups.  The intensity of the support and opposition to recent appointments risks undue influence on the judges once seated, and thus threatens the ideal of impartiality.

Second, debates over judicial philosophy inform debates over the best mode of selection.  The Wisconsin candidates openly appealed to the policy preferences of the voters.  Their campaign contributors likely focused on their candidate’s personal views of policy, not legal qualifications and temperaments.

These are not irrational actions by candidates, contributors, and voters, now that many voters have come to view courts as policy-makers who decide the “best” or “fairest” result in a case.  Reflecting this view of the courts, bar associations and other groups have given judges awards for favored opinions.  Many voters weigh judicial outcomes, not method; impartial and neutral application of law is not their priority.  The more they see the judge as a policy-maker—a legislator in robes—the more they may be inclined to support judicial elections.  As Justice Antonin Scalia observed: “Life tenure . . . was originally designed to give judges some insulation from the public indignation [over] unpopular decisions.  But when the vocation of a judge is more akin to a lawmaker, such insulation seems remarkably inapt.”

Some who favor an expansive role for judges in constitutional cases under broad rubrics like “substantive due process,” may be unwittingly undermining the rationale for appointed judges.

Meet the Author

Thomas A. Barnico

Teacher, Boston College Law School
In the midst of these perennial debates, Massachusetts retains its ancient, “anti-democratic” method, holding, in effect, that any threat to democracy posed by gubernatorial selection and tenure is outweighed by the threat of democracy posed by selection by ballot.  John Adams would likely urge Massachusetts to hold firm in its conservative stance, as the best means to ensure his cherished “government of laws, not of men.”   Meanwhile, in the Adams Courthouse, the lawyers who rub ol’ Rufus’s left boot for luck should add a rub of thanks for saving the Commonwealth from the recent spectacle in the Badger State.

Thomas A. Barnico teaches at Boston College Law School.  He is the author of a novel, “War College,” set in the Vietnam War era.