Vol. 31 No. 8 (October 2021) pp. 133-135JUDICIAL SELECTION IN THE STATES: POLITICS AND THE STRUGGLE FOR REFORM, by Herbert M. Kritzer. Cambridge, UK: Cambridge University Press, 2020. 382pp. Paperback: $39.99. ISBN 9781108791960. Hardback $125.00. ISBN 9781108496339.
Reviewed by Michael P. Fix, Department of Political Science, Georgia State University. Email: mfix@gsu.edu.
Most of the research on reforming judicial selection methods in the U.S. states has focused on the trade-off between independence and accountability (e.g. Bonneau and Hall 2009; Geyh 2019). This literature has provided a wealth of knowledge to scholars. As such, one might think that JUDICIAL SELECTION IN THE STATES: POLITICS AND THE STRUGGLE FOR REFORM would be another contribution to that literature. However, that is not the purpose of this insightful new book. While Kritzer does contribute indirectly to the independence versus accountability debate, this book approaches the topic of reforming judicial selection methods from a novel theoretical perspective that centers on the motivations of those seeking reforms. In taking this approach, Kritzer is able to provide new insights into the varied motivations underlying states’ decisions to alter (or maintain) their method of selecting and retaining judges.
In place of the independence versus accountability lens, Kritzer examines reforms to state selection and retention methods from the perspective of legal and democratic subcultures, borrowing from the classic work by Richardson and Vines (1970). In Kritzer’s framework, actors seeking to reform the method of judicial selection in a given state will tend to have particular goals that are in line with one of these subcultures. The legal subculture refers to the rules and norms that protect judges from external political pressures. Thus, actors that care about initiating reforms to maximize legal professionalism share the values of the legal subculture. Conversely, the democratic subculture is concerned with representation and reflects the values of actors whose goals in the judicial selection reform process are related to politics and policy.
While Kritzer observes that “the ideas of the legal and democratic subcultures have some similarities to the frequently discussed tension between the goals of independence versus accountability” (p. 9), he asserts that this conceptual approach adds value to our understanding of this process because these subcultures account for an array of factors excluded from the independence versus accountability debate. For example, while judicial nominating committees are often discussed in the existing literature, few scholars look at the role of the judicial evaluation committees adopted by some states to provide a recommendation on whether a judge should be retained or not.
Kritzer’s shift in conceptual focus is not simply to offer a fresh take on the topic of judicial selection reform; it also allows him to look at a new theoretical question. Moving away from concerns with what the “best” method is, Kritzer instead focuses on the motivations of those actors attempting to reform judicial selection methods. Returning to the example of judicial evaluation committees, Kritzer asserts that actors who share the values of the legal subculture will prefer a stronger role for these nonpartisan, evaluative bodies both in initially selecting potential judges and also in determining whether to retain them. Such actors are motivated by a desire for a more professional judiciary. These evaluative bodies having a role in the process help to achieve that goal. Conversely, actors who share the values of the democratic subculture will see little value in such bodies and will minimize their role or ensure that they are staffed by political actors who will focus on a judge’s policy preferences over her qualifications.
In addition to attempting to shed light on the motivations that lead state actors to reform (or attempt to reform) their judicial selection methods, Kritzer focuses on addressing two other questions: what factors determine the timing of judicial reform attempts and why some reform attempts succeed while others fail. To address these three questions, Kritzer examines all major successful (and significant unsuccessful) judicial selection reforms from 1980 through 2018. Beyond the conceptual and theoretical innovation of the book, this is its greatest strength. The rich array of data and historical details that Kritzer brings to his series of case studies provide strong evidence for solving his primary research questions while also providing a depth of useful information for other scholars.
After an introductory chapter with a discussion of the book’s theoretical and conceptual perspective and a brief history of judicial selection in the U.S., the bulk of the book is organized into three parts. The first part examines four cases where judicial reforms clearly exemplify changes made for political reasons. The second part looks at five cases that exemplify changes made to modernize court systems or as “good governance” type reforms. Finally, the third part turns to examples of failed attempts at reform. One of the more interesting observations one notices simply from the book’s organizational structure is the vast number of failed attempts at reform. While the first two parts look at a total of 11 states that undertook significant reforms of the system of judicial selection between 1980 and 2018, the third part documents an equal number of states that tried (in some cases many times over the 38-year period) but failed to enact reforms.
One of the most interesting revelations to come from this approach is the degree to which states used different types of reforms to achieve their desired outcomes. Typically, we think of shifts from partisan to nonpartisan selection as being motivated by values associated with the legal subculture. This is often the case as shown with the examples of Georgia (Chapter 6) and Mississippi (Chapter 7). However, as Kritzer convincingly shows, sometimes our conventional wisdom does not match the evidence. In Chapter 3, Kritzer demonstrates via a mountain of evidence that the shift from partisan to nonpartisan elections in Arkansas was done for partisan purposes.
While there are many things to praise about this new book, one of the few critiques I have stems from one of its greatest strengths. The vast amount of evidence that Kritzer brings to bear on his core research questions is not only convincing, but a valuable resource for future scholars working in this area. However, because each chapter contains so much data on the process and procedures surrounding reform attempts in each state, it is sometimes easy to get overwhelmed with legislative votes, election results, and other bits of data woven into the narratives. Had more of this quantitative data been organized into tables, figures, or diagrams, then the narrative of each state’s process might have been more fluid and allowed the reader to focus on the forest without getting stuck staring at each individual tree.
What can we take away from this book? In addition to a useful new theoretical lens through which to view questions about judicial reform in the U.S. states, Kritzer presents ample evidence to lead us to question some assumptions about when and why such reforms occur. Additionally, in tracing all successful and unsuccessful reform attempts over the past 38 years, Kritzer uncovers a clear pattern towards more politically motivated reforms. While Kritzer concludes that this observation is likely caused by “a diminished focus on court modernization and increasing polarization” (p. 351), this is not fully explored and opens the door for future works to dig deeper into this phenomenon.
REFERENCES:
Bonneau, Chris W., and Melinda Gann Hall. 2009. IN DEFENSE OF JUDICIAL ELECTIONS. New York: Routledge.
Geyh, Charles Gardner. 2019. WHO IS TO JUDGE?: THE PERENNIAL DEBATE OVER WHETHER TO ELECT OR APPOINT AMERICA’S JUDGES. New York: Oxford University Press.
Richardson, Richard J., and Kenneth Nelson Vines. 1970. THE POLITICS OF FEDERAL COURTS: LOWER COURTS IN THE UNITED STATES. Little, Brown.
© Copyright 2021 by author, Michael P. Fix.
