MERIT SELECTION, ROLE ORIENTATIONS AND LEGAL
RATIONALIZATION: A Q-TECHNIQUE STUDY OF THE
FLORIDA STATE DISTRICT COURTS
JOHN MALCOLM SCHEB, II
A DISSERTATION PRESENTED TO THE GRADUATE
COUNCIL OF THE UNIVERSITY OF FLORIDA IN
PARTIAL FULFILLMENT OF THE REQUIREMENTS
FOR THE DEGREE OF DOCTOR OF PHILOSOPHY
UNIVERSITY OF FLORIDA
To my parents
This dissertation has been realized with the assistance
of many persons, only a few of whom can be named here.
First, I must acknowledge the advice, inspiration and support
of my supervisory chairman, Richard K. Scher, Associate
Professor of Political Science. I would also like to thank
the other members of the supervisory committee: Alfred B.
Clubok, Professor of Political Science; Albert R. Matheny,
Assistant Professor of Political Science; Alfonso J. Damico,
Associate Professor of Political Science; and Lonn Lanza-
Kaduce, Assistant Professor of Sociology. Each of these
individuals contributed to the development of the dissertation
in unique and useful ways.
I wish also to thank Professor Thomas D. Ungs, Univer-
sity of Tennessee, and Professor Larry B. Baas, Valparaiso
University, for supplying the role perceptions instrument
they developed as well as encouragement and useful criticism.
Gratitude is also in order to Professor Norman Van
Tubergen, University of Kentucky, for his generous assistance
in the analysis of the Q-sort data.
Finally, I must thank the judges of Florida's District
Court of Appeals who were almost incredibly cooperative in
granting interviews and answering difficult questions.
To the people I have named belongs much of the credit
for the ideas contained in the dissertation; the faults are,
of course, attributable only to me.
TABLE OF CONTENTS
ACKNOWLEDGMENTS ............................................ iii
LIST OF TABLES ........................................ vii
I INTRODUCTION .....................................
The Study of Judicial Selection Systems ..........
Merit Selection and Legal Modernization ..........
Merit Selection, Legal Modernization and
the Judicial Role Conception ..................
The Data Base ....................................
Organization of the Dissertation .................
II MERIT SELECTION AND FORMAL RATIONALIZATION .......
III THE DEVELOPMENT OF JUDICIAL MERIT SELECTION ......
Early History of Judicial Selection ..............
Judicial Selection in Florida ....................
The Debate Over Judicial Selection ...............
Note s ................. ..........................
IV JUDICIAL SELECTION RESEARCH IN POLITICAL SCIENCE
V MERIT SELECTION, THE JUDICIAL ROLE AND COURT
Notes ............................................... 130
A Q SAMPLE AND Z SCORES: 3 FACTOR SOLUTION ....... 131
B SIMPLE STRUCTURE FACTOR MATRIX: 3 FACTOR
SOLUTION ..................................... 139
C RE-ORDERED FACTOR MATRIX: 3 FACTOR SOLUTION .... 140
D VARIABLE ASSIGNMENTS WITH FACTOR WEIGHTS BY
TYPE: 3 FACTOR SOLUTION...................... 143
E Q SAMPLE AND Z SCORES: 2 FACTOR SOLUTION ....... 144
F SIMPLE STRUCTURE FACTOR MATRIX: 2 FACTOR
SOLUTION .................................... 151
G RE-ORDERED FACTOR MATRIX: 2 FACTOR SOLUTION .... 153
H VARIABLE ASSIGNMENTS WITH FACTOR WEIGHTS BY
TYPE 2: 2 FACTOR SOLUTION .................. 156
I DATA FOR BAR POLL AND MERIT RETENTION
ELECTION, 1978 AND 1980 ........................ 157
J STATISTICAL SUMMARY: BAR POLL VERSUS MERIT
RETENTION ELECTION RESULTS, 1978 AND 1980 .... 159
K METHODOLOGICAL GLOSSARY ........................... 160
BIBLIOGRAPHY .......................................... 162
BIOGRAPHICAL SKETCH .................................... 168
LIST OF TABLES
I Responses of Judges on Florida District
Courts of Appeal to Questions on Judicial
Selection, by Mode of Selection ................. 50
II Selected Background Characteristics of
Judges on Florida District Courts of
Appeal, by Mode of Selection..................... 60
III Mode of Initial Selection of Judges on
Florida District Courts of Appeal, 1981......... 66
IV The Vocabulary of Judicial Role Orientations...... 80
V Selected Statements Corresponding with Role
Types Specified by Ungs and Baas................ 94
VI Positive Items on Which Type I Z's Are
Greater Than All Other Typal Z's................ 100
VII Positive Items on Which Type II Z's Are
Greater Than All Other Typal Z's................ 102
VIII Positive Items on Which Type III Z's Are
Greater Than All Other Typal Z's................ 103
IX Key Statements and Corresponding Factor
Scores Representing Factor I, the
"Rationalist".. ........................ ........ 108
X Key Statements and Corresponding Factor
Scores Representing Factor II, the
"Realist" ....................................... 110
XI A Comparison of Mean Factor Loadings of
Appointed, Elected and Merit Selected
Abstract of Dissertation Presented to the Graduate Council
of the University of Florida in Partial Fulfillment of
the Requirements for the Degree of Doctor of Philosophy
MERIT SELECTION, ROLE ORIENTATIONS AND LEGAL
RATIONALIZATION: A Q-TECHNIQUE STUDY OF THE
FLORIDA STATE DISTRICT COURTS
John Malcolm Scheb, II
Chairman: Richard K. Scher
Major Department: Political Science
Seldom has the emergence of judicial merit selection at
the state level been interpreted in the context of other
judicial reforms. When so viewed, it becomes apparent that
merit selection is but one aspect of a broader process of
legal modernization. This process seems to be heading in
the direction of Max Weber's ideal-typical rational legal
system. Accordingly, judges selected by the merit plan
should possess role conceptions which are amenable to a
To test this hypothesis, data on role orientations were
collected from thirty-nine judges on Florida's District
Courts of Appeals. In collecting these data, Q-technique was
employed. The Q-technique involves the ordering of role
statements by the respondents, according to levels of agree-
ment and disagreement. After all respondents have completed
"Q-sorts," these sorts are inter-correlated and the resulting
matrix factor is analyzed. Emerging factors correspond to
different orientations to the judicial role.
A simple two-factor solution was adopted for the test of
the hypothesis. This solution splits the sample of judges
into two distinct orientations: the "rationalist" and the
"realist." The rationalist judge fits the Weberian model in
that he characterizes judicial decision-making in formalistic
and legalistic terms. The realist, on the other hand,
expresses doubt that judicial decision-making can or should be
a process of formal rationality.
To test the hypothesis, the "collective" role orienta-
tions of merit selected, elected and appointed judges in the
sample were compared mathematically. The results do not
validate the research hypothesis.
In seeking to explain the negative results, discriminant
analysis was employed to discover which variables actually
account for variation in judicial role orientations. The
analysis revealed that, while prior occupation is of little
importance, a judge's age, length of service and the law
school he attended are moderately useful in discriminating
among judicial role types.
During the 1976 presidential campaign, Jimmy Carter
pledged that "during my administration, judges will be ap-
pointed on the basis of merit."' In an effort to fulfill
this promise, the newly inaugurated president issued an
executive order establishing a nominating commission for
the purpose of filling vacancies on the United States Courts
of Appeals. His successor, expressing dissatisfaction with
the operation of "merit selection" during the Carter admin-
istration, was quick to issue another order terminating the
existence of the circuit court nominating commission.3 Al-
though Carter's innovations in the federal judicial selection
process have been effectively undone by the Reagan adminis-
tration, there remains widespread commitment to merit selec-
tion at the state level, which is where the concept was
first applied. Currently, thirty-one states employ merit
selection for some or all of their judicial offices.5 In
the last decade alone, twenty-eight states adopted or exten-
ded their merit plans.6
Often referred to as the Missouri Plan, merit selection
typically entails nomination of a small number of judicial
candidates by a non-partisan commission, gubernatorial ap-
pointment of one individual from this set of nominees, and
a simple retention election upon expiration of the appointee's
initial term. To avoid confusion, we will separate the ini-
tial selection and retention aspects of the process; indeed,
these two aspects represent fundamentally different philoso-
phies of political recruitment. Accordingly, this disserta-
tion will employ the terms "merit selection" and "merit
retention" and will not mean the former to encompass the
latter. Our fundamental concern is with merit selection.
The Study of Judicial Selection Systems
A review of the literature on judicial selection indi-
cates that there has been little work of a theoretical or
empirical nature done in this area. By and large, the
literature has an editorial tone with conclusions based
more on ideology than systematic or balanced analysis. The
few empirical studies in the area reflect an theoretical
character-most lack a conceptual framework for adequately
interpreting the data they present. The fundamental ob-
jective of this dissertation is to integrate the discussion
of judicial selection into a larger theoretical perspective
and to embark on an agenda of empirical research that is
oriented toward theoretical understanding. The focal point
of this study is the judicial role conception and its rela-
tionship to judicial selection mechanisms.
Many theoretical studies in the social science tend to
be just that: theoretical analyses devoid of consideration
of empirical evidence. In this project we seek to unite the
two levels of the scientific enterprise in order to produce
a more complete intellectual product. Hence, we rely on
general theory from which a specific hypothesis can be de-
duced and empirical data against which to test the validity
of the hypothesis.
In his widely read Law in Modern Society, Roberto M.
Unger asserts the importance of the phenomenological compo-
nent in social research:
The relationship between people's self-
understanding in everyday life and the
theorist's description or explanation of
behavior brings us up against a riddle
every bit as vexing as the puzzles which
stem from the rivalry of the rationalist
and historicist method. If we disregard
the meanings an act has for its author
and for the other members of the society
to which he belongs, we run the risk of
losing sight of what is peculiarly social
in the conduct we are trying to under-
stand. If, however, we insist on sticking
close to the reflective understanding of
the agent or his fellows, we are deprived
of a standard by which to distinguish
insight from illusion, or to rise above
the self-images of different ages and
societies, through comparison. Thus,
subjective and objective meaning must
somehow be taken into account. 8
Accepting the utility of abstract and phenomenological
studies, we employ methods characteristic of both approaches.9
In keeping with the abstract-empirical approach, we utilize
a highly structured survey instrument which is administered
to a set of appellate judges. To investigate the "reflective
understanding" of this set of judges, we employ some general,
open-ended questions designed to elicit from the judges their
own perceptions of the issues at hand. With this dual ap-
proach, we hope to arrive at an understanding of judicial
merit selection which is both systematic and realistic. In-
terestingly, we uncover some parallels between our theoreti-
cal explanation of merit selection and the explanations
offered by our respondents.
Merit Selection and Legal Modernization
Seldom has the emergence of merit selection been viewed
in the context of other judicial reforms. Clearly, the
main force behind the adoption of merit selection has been
the organized bar. Yet the bar has also been instrumental
in securing a number of other related innovations. The
campaign to eliminate lay judges, the movement to enhance
the formal education of active judges, the institutionaliza-
tion of judicial evaluation on "technical" criteria, court
unification, the establishment of judicial disciplinary
councils and similar reforms have all been vigorously pro-
moted by the organized bar. It is our contention that these
reforms reflect an underlying process of legal modernization
and that the organized bar is the primary vehicle of such
Unfortunately, the concept of modernization is a rather
nebulous one. Some writers employ the term "modern" to mean
simply the present.0 Others identify modernization with
progress. Neither of these usages has any utility for
theoretical or historical analysis. A more substantial
definition is found in Walt Rostow's Stages of Economic
Growth. For Rostow, modernization involves industriali-
zation and its various social, political and economic
effects. Hence, we will use the term "modern" to refer to
the legal systems of the industrialized nations. We recog-
nize, however, that although nations like the United States
have already experienced industrialization, this process is
still having effects on social and political life. Thus,
while the industrialization process may be substantially
complete, the broader modernization process may not. The
legal system of the United States is changing markedly and
this change can be understood in terms of modernization
As yet the best treatment of legal modernization can
be found in the classical sociology of Max Weber.14 Weber
was primarily concerned with the various types of authority
systems and their relationships to forms of social and eco-
nomic organization. He argued that the advancing industrial
and capitalist economic forms are linked to a fundamental
social process he termed "rationalization."5 By rationali-
zation, Weber meant an increase in the orderliness and pre-
dictability of social activity. This change is wrought by
the emergence of rationalism and science as modes of under-
standing and the concomitant decline of the magical world-
Weber distinguished between formal and substantive
rationality. "In Weber's view, this distinction is focal
to sociological analysis. .. The formal rationality of
action refers to the degree to which conduct is organized
according to rationally calculable principles. Thus the
ideal-type of bureaucracy is, in terms of formal rationality,
the most rational type of organization possible."7 Sub-
stantive rationality organizes conduct on the basis of
"ethical imperatives, utilitarian and other expediential
rules, and political maxims, all of which diverge from . .
formalism. . Formal rationality, on the other hand,
requires normative and organizational principles which are
formal, positive and secular in nature.
For Weber, the most formally rational authority system
is the "legal order" in which allegiance is owed not to
ethical traditions or particular individuals but to positive
law.19 Once established, such principles are applied and
enforced by officials specially trained in the "science" of
law. Weber went on to elaborate the specific characteris-
tics of the ideal-typical legal order. Basically, its traits
are those of bureaucracy: hierarchy, division of labor, im-
personality, routinization, meritocracy, and formality.
Weber asserts that "the fully developed bureaucratic mecha-
nism compares with other organizations exactly as does the
machine with the non-mechanical modes of production."20 From
a purely technical point of view, the bureaucracy is "capable
of attaining the highest degree of efficiency."21
Weber's ideal legal system finds historical approxima-
tion both in the ancient Roman Law and in the modern legal
systems of Europe which are heavily influenced by the Roman
Law.22 In both cases, the structure of the law itself is
rigorously logical in that particular rules are deduced from
general legal principles. Jurisprudence, the application
of law to specific cases, is likewise deductive: judicial
decisions are ideally mechanical operations involving no
trace of the subjectivity of the decision-maker. The judges
of the civil law (or Roman Law) tradition are thus viewed
essentially as technicians, not politicians. They must
undergo extensive legal training specifically attuned to
the requirements of jurisprudence. Indeed, judging in the
civil law tradition is a career not unlike the civil ser-
vice in the United States.2
In sharp contrast to the European tradition, American
judges have traditionally been viewed as politicians rather
than as civil servants. They have typically come into judi-
cial positions through election or a highly politicized ap-
pointment process. As we shall see in the following chapter,
the organized bar has been steadily working to change both
the popular image of the American judge and the methods by
which judges are trained, selected, evaluated and disciplined.
In these efforts, the bar has been guided by the philosophy
of "good government" born in the Progressive era.24 In its
emphasis on formality, meritocracy and professionalism, this
philosophy resembles Weber's rationalist prescriptions. We
shall refer to this philosophy as "progressive legalism," a
term which captures the spirit as well as the substance of
the belief system.
We argue that legal modernization in this country re-
sembles Weber's process of formal rationalization. Accord-
ingly, we shall employ the two terms interchangeably. We
further note, with Schmidhauser, that rationalization is
similar to the political scientist's notion of institution-
alization, especially insofar as the subsidiary concept of
role is concerned.25
Merit Selection, Legal Modernization and the Judicial Role
One aspect of institutionalization concerns the role
orientations of the actors operating in the particular insti-
tutional setting under study. The conventional wisdom sug-
fests that role orientations become regularized as
institutionalization proceeds.26 Thus an actor in the
legislative context can be expected to espouse certain pre-
dictable conceptions regarding his role in the institution.
Similarly, we know from a rather sizeable body of empirical
research (which will be discussed later) that judges tend
toward certain role orientations as well.
Under code law and the administration of justice within
the civil law tradition, judges are expected to espouse a
well-defined role conception. Like the ideal judge in the
Weberian model, the civil law judge is expected to function
as a bureaucrat-decisions are to be based strictly on legal
principles without the taint of personal predilection or
bias. It is, of course, open to debate how well
European judges are able to meet this expectation.27 But it
is clear that such an expectation exists. In keeping with
the Weberian model we have adopted, we can label this par-
ticular judicial role conception rationalisticc."
Given the experiential and incremental development of
the common law,28 we would not expect American judges to
have traditionally espoused the rationalistic role concep-
tion. Clearly, gaps and conflicts in statutes and precedents
have required discretion in many instances of judicial
decision-making. Yet some elements in the legal community
have persistently downplayed the substantive element in
judicial decision-making. Whether pejoratively termed
"mechanical jurisprudence,"29 or championed under the banner
of "neutral principles,"30 there runs through the history of
American jurisprudence the view that decisions can and should
be based strictly upon legal criteria. Inasmuch as this view
holds that judicial decisions are to be based on factors in-
ternal to the legal process, it is analagous to the legal
rationalism of the civil law tradition. The common thread
running through all varieties of legal rationalism is the
concern for order and predictability in the law. This con-
cern comports well with Weber's notion of formal rationali-
Stated generally, our hypothesis is that merit selection
and the other associated judicial reforms indicate an under-
lying process of formal rationalization. As a form of
institutionalization, formal rationalization at the struc-
tural level should be accompanied by rationalization of the
role orientations of judges selected under a meritocratic
form of recruitment. If this is so, the judges recruited
under merit selection should profess roles amenable to a
formally rational legal system. Thus, we would expect merit
selected judges to emphasize legal order and predictability
and minimize the importance of extra-legal factors in the
The Data Base
The empirical realm we have chosen for testing our
hypothesis is the set of District Courts of Appeals of the
State of Florida. This set of courts was chosen for theo-
retical and practical reasons. At the theoretical level,
the most important consideration is the selection back-
grounds of judges on these courts. Since Florida adopted
merit selection for the District Courts in 1972, not all of
the judges currently serving on these courts were originally
merit selected. In fact, an appreciable proportion entered
the judiciary through the more traditional means of direct
gubernatorial appointment and non-partisan election. As a
result, we have a suitable laboratory in which to compare
the role orientations of merit selected, appointed and
elected judges without the problems associated with cross-
state comparative research. These problems are discussed in
Related to our choice of Florida's District Courts is
the activity of the organized bar in Florida in the area of
judicial reform. The Florida Bar has been quite active in
pressing for all of the measures we have previously outlined
as representative of legal modernization. Florida seems
like a good example of a legal system that is moving in the
direction of the Weberian ideal-type. Hence, if our hypoth-
esized connection between merit selection and the rational-
istic role conception is valid, then Florida is the kind of
setting in which such a linkage should be observable.
At the practical level, the Florida District Courts of
Appeals are employed for reasons of accessibility and proxim-
ity to the University of Florida. This latter consideration
is crucial given the temporal and monetary constraints on
this dissertation research.
It is important to emphasize at the outset that we are
not approaching the study of judicial role orientations in
the conventional manner. The orthodox approach is to employ
role as a means of explaining variation in judicial
decision-making. Indeed, the judicial role orientation is
conventionally viewed as important only insofar as it serves
such explanation. Our goal here is not to explain behavior.
Rather, we use the judicial role as a window through which
to view changes in judicial structure and process. We are
interested in the development of a mindset in which judicial
role orientations comprise but one aspect. In short, we
are viewing the rationalistic role orientation as an indi-
cator of the effects of the legal modernization process on
the Florida appellate judiciary.
During the period from January to July, 1981, interviews
were conducted with thirty-nine of the forty-three judges
then active on Florida's District Courts. Given this level
of participation, we feel comfortable in making generaliza-
tions about this population of judges. The interviews con-
sisted of two distinct phases. In the first phase, judges
were asked general, open-ended questions about their atti-
tudes toward and experiences with merit selection and other
relevant reforms. In the second phase of the interviews,
judges were administered psychological tests designed to
measure their orientations to the appellate judicial role.
The psychological tests derive from Q-methodology,32
which has already been employed in the study of the judicial
role by Ungs and Baas.33 Briefly, Q-methodology entails the
meaningful ordering of a set of statements by a number of
respondents, in this case judges. The resulting "Q-sorts"
are then intercorrelated and the matrix of correlations sub-
jected to factor analysis. The emerging factors correspond
to sorting tendencies among the respondents. In our context,
the factors can be interpreted as different orientations to
the judicial role. The nature of each orientation can be
determined by examining the correlations of each statement
in the "Q-sample" with each factor extracted. Using this
procedure, we can develop a typology of judicial role orien-
tations for our sample of judges. Once the role typology
is constructed, we can then compare the distributions of
different categories of judges across the typology. In
this way, we will ultimately compare the "collective" role
orientations of appointed, elected and merit selected
judges from the Florida District Courts.
We are pleased at the level of cooperation we found
among our respondents. Most of the judges were quite willing
to construct Q-sorts, even though none had ever done so in
the past. Indeed, it was gratifying that most of the judges
were enthusiastic about the project in general. We are for-
tunate that the fabled "purple curtain" prevented us from
collecting data in surprisingly few instances. Perhaps the
importance of this traditional barrier to social science
investigation of the judiciary is declining.
Organization of the Dissertation
The logic of our inquiry is as follows. First, the
theoretical perspective adopted from Weber will be elaborated
and our research hypothesis deduced. With this conceptual
framework in mind, we will then survey the development of
judicial selection in the American states. In this chapter,
special attention will be afforded the organized bar's role
in the legal reform movement and to the philosophical con-
troversy that pits progressive legalism against populist
democracy. The following chapter surveys judicial selection
research in political science and shows how this project
fits into, and yet moves beyond, that body of work. In
Chapter V we construct the empirical role typology for the
Florida District Courts. We then use the distribution of
the judges by selection mode to test our proposition that
merit selected judges will tend to espouse rationalistic
role conceptions. The concluding chapter considers alter-
native explanations for the empirical findings and points
out directions for future research into merit selection and
Dorothy W. Nelson, "Carter's Merit Plan: A Good First
Step," 61 Judicature 105 (1977), p. 105.
Mayo H. Stiegler, "U.S. Circuit Judge Nominating Com-
mission Abolished by Reagan," 65 Judicature 44 (1981), p. 44.
In 1940, Missouri became the first state to adopt merit
selection of judges. See Glenn R. Winters, "The Merit Plan
for Judicial Selection and Tenure-Its Historical Develop-
ment," in Winters (ed.), Judicial Selection and Tenure:
Selected Readings (Chicago: American Judicature Society,
Larry C. Berkson, "Judicial Selection in the United
States: A Special Report," 64 Judicature 176 (1980), p.
This is a charge often leveled against judicial behav-
ioralists. See, in particular, Theodore L. Becker, Political
Behavioralism and Modern Jurisprudence (Chicago: Rand,
McNally and Co., 1964), p. 9.
Roberto M. Unger, Law in Modern Society (New York:
The Free Press, 1976), p. 15.
"Classical phenomenologists like Husserl and Merleau-
Ponty stressed the importance of approaching phenomena with-
out preconceptions. Explanations were to be constructed
solely in terms of the statements actors made about the
meanings of their own acts." Explications of the epistemo-
logical theories of Husserl and Merleau-Ponty can be found
in Joseph J. Kockelmans (ed.), Phenomenology: The Philos-
ophy of Edmund Husserl and its Interpretation (New York:
Doubleday, 1967). See, in particular, chapters I, II and
IX in Part I and chapter IV in Part II.
10Richard D. Brown, Modernization: The Transformation
of American Life, 1600-1865 (New York: Hill and Wang, 1976),
12Walt Rostow, The Stages of Economic Growth: A Non-
Communist Manifesto, 2nd ed. (Cambridge, England: Cambridge
University Press, 1971).
1Robert J. Kramer, "The Politics of Legal Modernization:
The Roman and Japanese Experiences," (Ph.D. dissertation, New
York University, 1975).
1Max Weber, On Law in Economy and Society (Cambridge,
Mass.: Harvard University Press, 1969).
Max Weber, "Law, Rationalism and Capitalism," in C. M.
Campbell and Paul Wiles (eds.), Law and Society (New York:
Barnes and Noble, 1979), p. 73.
16Max Weber, From Max Weber: Essays in Sociology, trans.
and ed. by H. H. Gerth and C. Wright Mills (New York:
Oxford University Press, 1946), p. 51.
17Anthony Giddens, Capitalism and Modern Social Theory:
An Analysis of the Writings of Marx, Durkheim and Max Weber
(Cambridge, England: Cambridge University Press, 1971), p.
1Max Weber, "Law, Rationalism and Capitalism," op. cit.,
1Ibid., p. 56.
20Gerth and Mills, op. cit., p. 214.
21Max Weber, The Theory of Social and Economic Organi-
Zation, trans. A. M. Henderson and Talcott Parsons. (New
York: Oxford University Press, 1947), p. 337.
2Max Weber, "Law, Rationalism and Capitalism," op. cit.,
23John Henry Merryman, The Civil Law Tradition (Stanford:
Stanford University Press, 1969), p. 36.
Albert M. Kales, Unpopular Government in the United
States (Chicago: University of Chicago Press, 1914).
25John R. Schmidhauser, Judges and Justices: The Federal
Appellate Judiciary (Boston: Little, Brown and Co., 1979),
pp. 5-7. The concepts of rationalization, institutionaliza-
tion and modernization are inter-related but not necessarily
synonomous. Institutionalization, according to Schmidhauser,
involves delineation and maintenance of boundaries, regulari-
zation of norms and procedures and specialization of functions
Modernization describes the rationalization and institution-
alization associated with industrialization. But institu-
tionalization and rationalization have occurred in certain
social structures prior to industrialization. The most ob-
vious example of pre-modern institutionalization is the
Roman Catholic Church. An example of pre-modern rationali-
zation is the development of the Roman Law in the Age of the
26John C. Wahlke, et al., The Legislative System: Ex-
plorations in Legislative Behavior (New York: John Wiley
and Sons, 1962), pp. 7-17.
27John Henry Merryman, op. cit., pp. 40-58.
28Gerth and Mills, op. cit., p. 217.
29Joel Grossman and Herbert Wells, Constitutional Law
and Judicial Policymaking (New York: John Wiley and Sons,
1972), pp. 4-6.
30Jerold S. Aurebach, Unequal Justice: Lawyers and
Social Change in Modern America (New York: Oxford University
Press, 1976), pp. 260-261.
31In pursuing this course of investigation, the re-
searcher faces a dilemna. In opting to study judges of
different selection modes at one level of court within one
state, we must necessarily choose a state in which merit
selection has only recently come into being. This lack of
a solid tradition may affect the result of the test of the
research hypothesis. On the other hand, if we try to compare
judges at different levels of court in one state or at one
level between states, we run the risk of incommensurability
due to varying judicial capacities, political cultures, etc.
We have chosen the first approach primarily for the prag-
matic reasons of proximity, accessibility and convenience.
32William Stephenson, The Study of Behavior: Q-Technique
and its Methodology (Chicago: The University of Chicago Press,
Thomas D. Ungs and Larry R. Baas, "Judicial Role Per-
ceptions: A Q-Technique Study of Ohio Judges," 6 Law and
Society Review 343 (1972).
MERIT SELECTION AND FORMAL RATIONALIZATION
An overview of the judicial selection literature
reveals that merit selection is rarely viewed in the context
of other judicial reforms. When so viewed, it becomes
apparent that merit selection is but one aspect of a more
fundamental process-a movement led by the organized bar
and justified by the philosophy of progressive legalism.
The basic objective of this movement is the modernization
of the judicial process. In this chapter, we will explore
the modernization movement, and merit selection in partic-
ular, in light of Weber's concept of formal rationalization.
Traditionally, those political scientists who study the
judicial process have eschewed any consideration of "grand
theory" or social theory, categories in which Weber clearly
belongs. Given the behavioralist's predilection for
empirical testing of clear hypotheses, this aversion is
understandable. Many of the postulates of grand theory
operate at such a high level of abstraction that they are
both difficult to operationalize empirically and perhaps
intellectually unpalatable to those given to the pursuit of
highly specialized research interests.
Yet for empirical research to be meaningful and coher-
ent, it must be directed by some theory, even if implicit.
The best of the judicial behavior research to date draws
rather explicitly from social-psychological theory in its
use of role and attitude variables as determinants judicial
decision making. It is the task of this dissertation to
elevate the study of judicial selection to a theoretical
level and thereby to develop a coherent empirical research
Our theoretical treatment of judicial selection begins
with Weber, not arbitrarily but because his relevance to
this subject is obvious to any reader with even cursory
familiarity with his work.
Weber was interested in the relationships among forms
of social order and economic structures. Unlike Marx,
however, Weber rejected simple economic determinism: He
sought to show that normative structures were more than
epiphenomenal. Weber believed that existing normative
structures can influence the economic evolution of a society
as well as vice versa.
Focusing on the concept of legitimacy, Weber produced
an ideal-typology of legitimate authority systems: tradition-
al, legal and charismatic systems. The traditional authority
rests on acceptance of norms "as they have been handed down
from the past. .." These norms are articulated and enforced
by an individual or individuals who have inherited authority
from their progenitors. The authority network thus depends
on personal loyalty and a respect for the past. Monarchies
and some tribes fit into this category. So does the system
of common law, which is created by the accumulation of
The charismatic form of authority rests on deference to
an exceptional individual who, in asserting his will, may
explicitly repudiate the past.5 Often the charismatic
leader will be ascribed supernatural or other special
powers. Clearly, many primitive tribes fit this type. So,
however, do the regimes of some modern nation states. In
this category, the Third Reich is clearly archetypal.
Justice under the charismatic form of authority rests on
the whim of the Kadi, the shaman, the chief or der Fuehrer.
The legal order is the most modern form of authority
system. In this most modern of schemes, allegiance is owed
not to particular individuals or sacred traditions but to a
logical system of formal, positive law.6 The characteristic
political structure of such a rational authority system is,
of course, bureaucracy. The administration of justice, of
norm enforcement, is likewise bureaucratic.
Weber observes in the history of Occidental civilization
a movement he calls "rationalization" a term which we
can assume to mean a tendency toward greater levels of
order, formality and predictability in all aspects of social
life.7 This rationalization is, according to Weber, related
to the development of capitalism.
Predictability is the key to the mutual reinforcing
nature of capitalism and legalism; predictability of business
norm enforcement rationalizes individual risk-taking, which
is the essence of the ideal market system. The predictabil-
ity of norms in the realm of business law and contract law
spills over into the other substantive areas of law and,
indeed, into other aspects of social life.
Weber noted increasing rationalization in religion,
philosophy, the arts and the sciences as well as in law and
political economy. The less basic of these, i.e., the arts,
philosophy and religion are subject to periodic reactions
in the form of romanticism; but the general tendency remains
one of increasing abstraction, formalism and precision.10
While experience since Weber's passing shows many romanti-
cist reactions, the overriding and aesthetic mode of
thinking in the Occident (and, increasingly, the Orient)
remains decidedly rationalistic.
Our interest here lies with the justice system of the
ideal type rational authority system. Not surprisingly, it
is thoroughly bureaucratic:
. every body of law consists essentially
of a consistent system of abstract rules
which normally have been intentionally
established. Furthermore, administration
of law is held to consist in the appli-
cation of these rules to particular
cases . .
The administrative structure of the legal order is
likewise bureaucratic. Weber outlines the criteria for
the staff of the rational justice system:
1. They are personally free and subject
to authority only with respect to their
impersonal official obligations.
2. They are organized in a clearly
defined hierarchy of offices.
3. Each office has a clearly defined
sphere of competence in the legal sense.
4. The office is filled by a free
contractual relationship. Thus, in
principle, there is free selection.
5. Candidates are selected on the basis
of technical qualifications. In the most
rational case, this is tested by examination
of guaranteed by diplomas certifying technical
training, or both. They are appointed, not
6. They are remunerated by fixed
salaries in money, for the most part with a
right to pensions.
7. The office is treated as the sole,
or at least the primary, occupation of the
8. It constitutes a career. There is
a system of promotion according to senority
or to achievement, or both. Promotion is
dependent on the judgment of superiors.
9. The official works entirely
separated from ownership of the means of
administration and without appropriation
of his position.
10. He is subject to strict and
systematic discipline and control in the
conduct of the office. . .12
Bearing in mind that the above mentioned criteria
apply to an ideal-type, let us consider how various con-
temporary legal systems approximate the rational model.
Let us begin at the highest level-generality by comparing
the basic characteristics of the common law and the civil,
or Roman, law traditions vis-a-vis the Weberian ideal.
The civil law tradition, which embraces most nations
in Europe and South America and many in Africa, is clearly
the more rationalistic tradition. Most fundamentally, we
note that the basic structure of the law and the method of
jurisprudence employed are primarily deductive: there is an
elaborate and logical corpus of positive law which is
applied systematically to particular cases. Judges operating
in such systems have less occasion to invoke precedent as
a means of dispute resolution. The administration of the
justice systems of the civil law tradition is also very
bureaucratized. Judges are appointed on the basis of merit
demonstrated through specialized formal education and examin-
ation; they rise through the judiciary in a manner not unlike
civil servants in the United States; they serve as judges and
only judges. In short, judging is viewed as a career rather
than as a "political" position.13
The German legal system approximates the Weberian ideal-
typical rational legal order. As in the case of its
European neighbors, Germany's law is based on the Roman Law
and the Napoleonic Code.14 Between 1871 and the turn of the
twentieth century, the German civil and criminal law was
codified by teams of legal experts.15 Although the criminal
codes have been significantly revised since 1950, few
changes have been made in the civil codes.16 Although
Germany professes to be based on the principle of federalism,
there is but one law that applies nation-wide.17 In stark
contrast stands the United States with its fifty-one bodies
of positive law.
Another obvious contrast between German and American
law is the absence of judge-made law in Germany, whereas the
United States is based on the common law tradition. German
judges thus, at least in theory, are not policy makers.
David Conradt elaborates:
This conviction that the judge is not an
independent actor in the judicial process
but merely an administrator lies at the
base of the still dominant philosophy of
legal positivism or analytical juris-
prudence. Legal positivism contends that
existing general law as found in the codes
sufficiently encompasses all the rights
and duties of citizens. In other words,
judicial input or review is not necessary.
The law supposedly offers the citizen the
best protection against the arbitrary
exercise of power by political authorities.
Politics, according to this philosophy,
must be kept strictly distinct from the
The amenability of this legal positivism to National
Socialism and other forms of statism is readily apparent.
Indeed, as Conradt notes, legal positivism was criticized
for facilitating the judiciary's "tragic, if not scandalous,
behavior during the Third Reich. By claiming to be only
neutral administrators of the law, German judges disclaimed
any responsibility for judging the contents of the laws they
were to administer."19 But it must be equally apparent that
legal positivism fits squarely into the tradition of Western
rationalism both in the Weberian and in the broader
philosophical senses of the term. Under a system of legal
positivism, authority rests in a rationally constructed
body of rules that transcend the authority of any personal
political actor. The key concepts here are reason and
When we examine the socialization and recruitment of
the German judge, again we see the influence of rationalism.
Again, we quote from Conradt:
In Germany, as in other continental European
states, there has been a traditionally close
relationship between the court system and
the state bureaucracy. Nearly all German
judges . are appointed by the state
ministers of justice. They are thus civil
servants with roughly the same salaries,
rank, tenure, and promotion structures as
the Beamte in the higher service.20
Thus we see that the structure of law and the adminis-
tration of justice in Germany are bureaucratized, rational-
ized. This is true, more or less, of the entire group of
nations of the civil law or Roman Law tradition.
In contrast, the tradition of common law began as
just that: a tradition. Beginning with the reign of Henry
II of England, judges settled legal disputes by invoking
"natural law" as they perceived it. Thus the corpus of the
law grew incrementally as particular decisions were recorded
and eventually codified. Although the United States is
ostensibly a common law nation, the adoption of a national
constitution and an elaborate body of statutes has formalized,
and in some areas, superseded the precedents of the common
law. Thus, while stare decisis continues to be an important
decisional criterion in the practice of jurisprudence, it
has been subjugated to an appreciable and fairly compre-
hensive body of positive law.
In his study of the American federal appellate
judiciary, Schmidhauser employed the Weberian theoretical
framework. Indeed, to our knowledge, Schmidhauser is the
only political scientist to explicitly make use of Weber in
studying the courts.21 We must note, however, that rational-
ization or bureaucratization "embodies many of the attributes
which were . later adapted by modern American . .
political scientists as characteristics of institutional-
ization (notably boundary maintenance, regularization of
procedures and ethical norms, and specialization of
Schmidhauser finds that the "federal appellate judiciary
meets many of the essential standards established in the
model."23 Yet, largely because of the "ascriptive factors
and partisan influences" existing in the judicial selection
process, Schmidhauser concludes that the system is not fully
When we look to the state level, however, we see con-
siderably more progress toward the Weberian ideal than is
evidenced by the federal system. In comparing Florida's
judicial system with the aforementioned criteria for the
rational justice system, we see considerable correspondence.
There is a streamlined hierarchy (court unification), a
formal disciplinary body (the Judicial Qualifications
Commission), merit selection (Missouri Plan) and retention
(Missouri Plan). Given that merit retention practically
assures incumbency, there is basis for arguing that the
system is becoming more professionalized as well. Judging
may be becoming more of a career in Florida, at least at
the appellate levels. As of June 1982, formal evaluation
and continuing formal legal education have been proposed by
the organized bar, which in Florida is integrated.
It is clear that Florida and many states are modifying
their judicial systems in ways predicted by Weber's theory
of rationalization. But the changes and proposed changes
that we have observed may only be superficial. Of great
importance is whether these structural changes engender
changes in court output, or the kinds of values that find
their way into the law.
Critical theorists, following Marx, tend to view
formal rationalization as mystification or obfuscation.25
Rationalization, in this view, serves to mask the "under-
lying sources of social alienation and class-based power
differentials. In particular, critics allege that the
technical and formal characteristics of legal rationality
actually conceal the social processes through which indus-
trial capitalism is propagated."26
Certainly Weber believed that rationalization is related
to capitalism, but his understanding of the relationship
differs significantly from Marx's. Weber saw the emergence
of capitalism, science, technology and legal order in the
context of Western culture shaking loose the fetters of
superstition, tradition and the magical world-view. What
he describes is an advancing civilization attempting to use
rational principles to re-order the natural environment,
society and the human psyche. In The Protestant Ethic and
the Spirit of Capitalism, Weber is careful to specify the
mutually reinforcing nature of the various aspects of
rationalization. Whereas Marx sees the "ideological"
aspects as built on the substructure of capitalism, Weber
views each of the aspects as relatively autonomous. Indeed,
the contemporary critical theorists are not in agreement
on the subject of relative autonomy.
To view rationalization as inexorably linked to capital-
ism, one must deal with the problem of the Soviet Union.
Like most socialist states, the USSR has a legal system
ostensibly patterned after the civil law tradition.
Certainly the structure and administration of Soviet Law
are highly bureaucratic. But the nature of jurisprudence
differs from that of, say, France. Weber's distinction
between formal and substantive rationality is useful here.
The French style of jurisprudence is formally rational in
its reliance on formal rules of law as decisional criteria.
The Soviet jurisprudence is more substantively rational in
that it looks more to ideological principles as decisional
guides than to formal legal rules.
Despite the distinction between formal and substantive
rationality, it is clear that the Soviet system embodies
many of the traits of the "legal order," at least as far as
administration is concerned. This makes the thesis that
rationalization is dependent on capitalism difficult to
defend. In any case, such a thesis is beyond the scope of
One does not have to accept the full-blown Marxist
version to entertain the proposition that rationalization
may be more myth-making than substance. Indeed, empirical
studies have shown that merit selection, as a symptom of
rationalization, does not affect court output. Neither
does it seem to affect the social backgrounds of judges.
These studies will be dealt with in Chapter IV.
Rationalization exists, if only in the minds of those
actors who strive to modernize and reform the legal system.
It was clear from our interviews with Florida appellate
judges that there was a well-defined faction of "progressive,"
"rational," "predictable," and "orderly process" in charac-
terizing merit selection and retention. Now it is obviously
possible to claim that there is no guarantee that the judges
meant the same thing as we do, or as Weber does, when it
comes to a term like "rational," for instance. As
Wittgenstein pointed out, individuals have unique orientations
to reality; hence to language.27 One can hope for only a
modicum of inter-subjectivity; this can arise only through
common experience, language being one mode of experience.
Our experience with Weber and with the appellate judges
compels belief that the previously described faction among
these judges is working toward court modernization along the
lines that Weber expected and characterized as "rational-
ization". With the critical theorists, we retain a skepti-
cism about intentions and functions that may not be super-
ficially visible. We must emphasize, however, that the
"progressive" judges almost without exception seemed very
sincere in their faith in court modernization.
Perhaps a more empirically defensible form of hegemony
is professional in nature. As lawyers, members of the bar
have a certain intellectual self-interest in rationalization.
Clearly, the rational lawyer will prefer an orderly and
predictable legal system to one which is otherwise. In our
interviews, we found several judges who pointed to and even
criticized the bar's activities in judicial reform. But the
majority of judges saw the bar's efforts in a favorable light.
When we asked the question: "Do you feel that merit selection
and retention give the bar undue influence over the judicial
process?", most said "no". Some would admit a certain
influence, but felt this influence to be justified. Several
adopted the rationalist position that judges must be legal
experts recruited, trained and evaluated by legal experts.
One can argue that legal rationalization serves the hegemony
of the legal profession, but most of our respondents would
be quick to repudiate such a thesis. They would be more
inclined to see the professional influence as in the "public
interest," a term frequently used by the judges we talked
To summarize, we have noted that the Weberian concept
of rationalization bears much resemblance to the political
scientist's concept of institutionalization. One aspect of
institutionalization is the role conception or orientation
of the actor operating in the institutional context.
Pioneered by Wahlke, Eulau, Buchanan and Ferguson, in their
study of legislative behavior,28 role analysis has been more
recently applied to judicial behavior.29 However, we are
aware of no research which has employed role analysis in a
study of judicial selection modes and court modernization.
With this theme in mind, we survey the development of judicial
selection and the controversy surrounding the merit plan.
An exception is James A. Gazell, State Trial Court as
Bureaucracies: A Study in Judicial Management (New York:
Dunellen Publishing Co., 1975).
2John R. Schmidhauser, Judges and Justices: The Federal
Appellate Judiciary (Boston: Little, Brown and Co., 1979),
3Max Weber, "Law, Rationalism and Capitalism," in C. M.
Campbell and Paul Wiles (eds.), Law and Society (New York:
Barnes and Noble, 1979), pp. 55-56.
Ibid., p. 59.
Ibid., p. 60.
Ibid., p. 56.
7Max Weber, The Protestant Ethic and the Spirit of
Capitalism. Translated by Talcott Parsons. (New York:
Scribner, 1958), p. 13.
Weber, "Law, Rationalism and Capitalism,"
Ibid., p. 51.
Ibid., pp. 51-52.
Ibid., p. 56.
Ibid., pp. 57-58.
See John Henry Merryman, The Civil Law Tradition
(Stanford: Stanford University Press, 1969).
1David P. Conradt, The German Polity (New York:
Longman, 1982), p. 191.
Ibid., p. 192.
2Ibid., p. 193.
2Schmidhauser, op. cit.
Ibid., pp. 239-240.
Ibid., pp. 241-242.
24Ibid., p. 241.
2Gerald Turkel, "Rational Law and Boundary Maintenance:
Legitimating the 1971 Lockheed Loan Guarantee," 15 Law and
Society Review 42 (1980-1981), p. 42.
27Ludwig Wittgenstein, Tractatus Logico-philosophicus,
2nd ed. (New York: Free Press, 1971), p. 192.
28John C. Wahlke, Heinz Eulau, William Buchanan and Leroy
C. Ferguson, The Legislative System: Explorations in Legisla-
tive Behavior (New York: John Wiley and Sons, 1962), pp. 7-9.
2The following chapter contains extensive references to
studies of the judicial role.
THE DEVELOPMENT OF JUDICIAL MERIT SELECTION
Early History of Judicial Selection
The post-revolutionary American states inherited from
Great Britain the practice of judicial appointment, although
some states opted for legislative, rather than executive,
appointment.l The Federalists, who almost without exception
supported judicial appointment, regarded the masses as in-
capable of discerning the legal abilities of judicial candi-
dates and justified their elitism by invoking the myth of
mechanical jurisprudence, the notion that judges are mere
instruments of the law-that personal policy preferences
do not enter into judicial decision making.2 Their argu-
ment was that since judges are not actually makers of
governmental policy, there is no compulsion under democracy
that they be popularly chosen; only policymakers require
electoral sanction to claim legitimacy in their positions
The Jacksonian era brought a new method of state ju-
dicial selection. Jacksonians were very skeptical of the
Federalists' claims for judicial neutrality and tended to
see judges as inevitably involved in "politics." Hence,
they were inclined to disfavor the practice of judicial ap-
pointment which, in their view, removed one policymaking
branch from the control of the electorate, thus rendering it
In 1832, Mississippi became the first state to provide
for popular election of all state judges. By action of its
1864 constitutional convention, the state of New York did
likewise. In the century that followed, all states entering
the union did so with constitutions providing for judicial
Toward the end of the nineteenth century there appeared
much dissatisfaction with the elective scheme. Given the
predilections of the Jacksonians, judicial elections had been
partisan since their inception in the 1830s. The criticism
that appeared before the turn of the century focused on the
partisan aspect of the elective process.5
Most historians recognize that the industrial revolu-
tion and concomitant urbanization of the nineteenth century
are closely related to the emergence of the powerful urban
political machines. The Tammamy Hall organization in New
York City exemplified the potential for abuse inherent in
the partisan elective scheme. Tammamy seized control of the
nomination process and, aided by the low voter turnout in
judicial elections, was able to exercise virtual hegemony
over the judiciary.
Widespread dissatisfaction with partisan judicial elec-
tions was soon translated into concrete proposals for reform.
Some clamored for a return to the appointive model while
others sought means whereby the elective model could be im-
proved. Among those following the second course was the
Association of the Bar of the City of New York, established
in 1870, in part as a reaction against Tammamy Hall control
of the judiciary. The newly established bar association
considered several reform proposals, all designed to "take
the judge out of politics." These proposals included estab-
lishing separate judicial nominations and elections, direct
primaries and non-partisan ballots.
Of the considered reforms, the non-partisan ballot
gained the most support and was instituted on a limited
basis in New York and in many states where Progressives
dominated the legislatures. Non-partisan judicial election
still operates in many states today.8
It was not long before the non-partisan scheme came
under attack. At the vanguard of the assault on non-partisan
election of judges was Roscoe Pound, then professor of law
at the University of Nebraska. Pound argued that judicial
elections, both partisan and non-partisan, were responsible
for the low esteem in which the public held the courts.9
William Howard Taft, in a speech before the American Bar
Association in 1913, argued that the non-partisan ballot
allowed unqualified individuals access to judgeships.10
Taft asserted that partisan elections, despite their ob-
vious flaws, at least provided screening mechanisms (party
nominations) through which patently unsuitable candidates
were thwarted in their bids to become judges. Leaders of
the bar became increasingly convinced that, under the non-
partisan scheme, incompetent and/or morally deficient
individuals became judges simply by virtue of possessing
financial means and a modicum of voter appeal.
In 1913 the American Judicature Society was founded,
ostensibly committed to the "improvement" of the administra-
tion of justice. The society's original "director of draft-
ing" was Albert M. Kales, who had been professor of law at
Northwestern University. Kales wrote prolificly, and in
his articles there soon appeared a proposal for a new method
of judicial selection. His model combined elective and ap-
pointive aspects in a novel way. The plan called for
initial appointment by the chief justice of the state su-
preme court. The chief justice would himself be subject to
periodic popular re-election. In order to avoid arbitrari-
ness on the part of the appointed judge, Kales suggested
that the judge face the voters in a non-competitive reten-
Inasmuch as the nominating commission aspect of the
modern merit plan was not contemplated by Kales, nor was
initial appointment by the governor, it is debatable whether
we can credit Kales with inventing "merit selection." But
clearly his ideas were profoundly influential in the develop-
ment of judicial selection.
In 1922, the Illinois Constitutional Convention ap-
proved a plan involving gubernatorial appointment of Cook
County trial judges.12 The governor was required to choose
appointees from a set of names produced by the state supreme
court. Concurrently, the Louisiana legislature adopted a
similar plan.3 These systems differed from modern merit
selection in that they involved only judges in the nomina-
In 1926, Harold Laski proposed gubernatorial appoint-
ment based on recommendations of an advisory council con-
sisting of a supreme court justice, the attorney general
and the president of the state bar association.14 This
proposal was extremely significant in that, for the first
time, it was conceived that lawyers should play an active,
institutionalized role in the judicial selection process.
Two years after the Laski proposal, Herbert L. Harley
wrote in an editorial that the bar should be further in-
volved in the nomination of judges and suggested that the
list of nominees be based on a bar plebiscite.15 Although
Harley's proposal was never adopted by any state legisla-
ture, the spirit of his suggestion lives on in current ef-
forts by state bars to influence voters in merit retention
elections by evaluating judges through bar polls.16
It was in 1931 that the modern form of merit selection
crystallized. Speaking before the American Judicature
Society, Walker Spencer described the new selection plan
in the following terms: "A commission composed of lawyers
and laymen submits nominations to the governor for appoint-
ment subject to tenure by non-competitive election."17
In 1931, the American Bar Association officially en-
dorsed the merit plan as enunciated by Spencer.18 The ABA
lobbied heavily for merit selection in the state of Missouri
and was successful. In 1940 Missouri became the first state
to enact judicial merit selection. Missouri's merit plan
applied to the state Supreme Court, the intermediate courts
of appeals and trial courts in St. Louis and Kansas City.19
Since 1940, thirty more states have adopted some form
of merit selection or retention.20 Of course, there is con-
siderable variation among these plans in terms of the compo-
sition of the nominating bodies, the applicability of the
plans, the length of judicial tenures, the conduct of the
retention elections and the formal roles of the state bar
associations. Yet the constant that emerges from observa-
tion of the various plans is the participation in some form
by the organized bar.
Judicial Selection in Florida
The state of Florida is fairly typical in terms of the
evolution of its judicial selection practices. Before it
was granted statehood, the territory of Florida was divided
into a number of two judicial circuits with presiding
judges appointed to two year terms by the president, subject
to Senate confirmation. When Florida entered the union in
1845, it did so with a constitution calling for direct guber-
natorial appointment of all judges. An 1853 constitutional
amendment ushered in popular partisan election. Except for
a brief interlude during and after the Civil War, judicial
selection remained both electoral and partisan until 1971,
when the legislature acted to make all judicial elections
in the state nonpartisan.
Before discussing recent judicial selection reforms
in Florida, it is important to briefly outline the struc-
ture and function of the state court system. The present
structure consists of the Supreme Court, with seven justices;
five District Courts of Appeals, with a total of forty-three
judges; twenty circuit courts, with a total of 302 judges;
and 67 county courts, with a total of 198 judges.
The county courts are the lowest tier of trial courts
in Florida. The county courts deal exclusively with mis-
demeanors and small claims and have no appellate jurisdic-
tion. The county courts have absorbed the functions of
the municipal courts, which were abolished in 1972 as part
of a general restructuring and modernizing of the system.
Formerly, the municipal courts handled petty crimes like
traffic infractions. Today, the county courts' business
is largely related to traffic violations.
The circuit courts have original jurisdiction over all
felonies and those misdemeanors "that arise out of the same
circumstances as those giving rise to a felony that is also
charged."21 The original civil jurisdiction of the circuit
courts includes claims in excess of $2500, all matters of
equity, all cases pertaining to juveniles, all matters of
probate, determinations of competency, involuntary hospitali-
zations, the issuance of injunctions and all actions in-
volving titles and real property. These courts also have
authority to issue the extraordinary writs: certiorari,
mandamus, quo warrant, prohibition and habeas corpus. The
appellate jurisdiction of the circuit courts is limited to
appeals from the county courts.
The state constitution succinctly states the jurisdic-
tion of the District Courts of Appeals, the intermediate
appellate courts in Florida:
1. District courts of appeal shall
have jurisdiction to hear appeals, that
may be taken as a matter of right, from
final judgments or orders of trial courts,
including those entered on review of ad-
ministrative action, not directly ap-
pealable to the supreme court or a circuit
court . .
2. District courts of appeal shall
have the power of direct review of ad-
ministrative action, as prescribed by
general law . .
3. A district court of appeal or
any judge thereof may issue writs of
habeas corpus returnable before the
court or any judge thereof or before
any circuit judge within the territorial
jurisdiction of the court. A district
court of appeal may issue writs of
mandamus, certiorari, prohibition, quo
warrant, and other writs necessary to
the complete exercise of its jurisdic-
tion. To the extent necessary to dispose
of all issues in a cause properly before
it, a district court of appeal may exercise
any of the appellate jurisdiction of the
The Florida Supreme Court has mandatory appellate juris-
diction only in cases in which a lower court has imposed the
death penalty or a lower court has invalidated a state law
or portion of the state constitution. This narrow mandatory
jurisdiction was accomplished by a 1930 constitutional amend-
ment which rendered the bulk of Supreme Court appellate
review discretionary. As a result, the Supreme Court now
focuses its attention on matters certified by the district
courts to be of great import. Hence the District Courts
of Appeals have been rendered more important as policy-
making bodies in Florida.
In addition to hearing appeals, the Supreme Court is
responsible for adopting the rules of procedure for all
courts in the state, for overseeing the administration of
the state judicial system, and for regulating the admission
and disciplinary practices of the Florida Bar. In short,
the Supreme Court is at the top of the judicial bureau-
cracy in the state of Florida.
The new state constitution of 1972 requires that, in
the case of interim vacancies at all levels of the judiciary,
the governor must make an appointment based on the recommen-
dations of a judicial nominating commission composed of six
lawyers and three laypersons. In 1976, another constitu-
tional amendment extended the merit plan to cover all vacan-
cies on the Supreme Court and District Courts of Appeals.
Additionally, this amendment applied merit retention to the
The current situation regarding judicial selection is
this: Supreme Court justices and judges of the district
courts are merit selected and subject to merit retention.
The judges of the trial courts are normally elected on non-
partisan ballots, with merit selection applied in the case
of interim vacancies. In 1978 the voters rejected a pro-
posed amendment that would have applied merit retention to
the trial courts as well.
In terms of judicial qualifications, justices of the
Supreme Court must have been members of the Florida Bar
(membership is required to practice law in Florida) for at
least ten years of bar membership. At the circuit court
level, there is a five year eligibility requirement. At
the county court level, there is no such minimum, although
county judges must be members of the bar. Exceptions to
this requirement are those judges who, in counties having
populations less than 40,000, were incumbent at the time
at which the law eliminating lay judges was enacted. At
the time of this writing, 31 of the 198 county judges are
not members of the bar. Interestingly, from our theoretical
perspective, the Florida Supreme Court has established a
voluntary program of legal education for the remaining lay
judges. Probably related to political pressures, many of
the non-lawyer judges have chosen to participate in this
Another modern feature of the Florida judicial system
is the Judicial Qualifications Commission, a disciplinary
council established by the new constitution of 1972. This
body is designed to supplement the cumbersome and seldom
invoked formal impeachment process. The commission con-
fidentially investigates complaints of judicial malfeasance
or incompetence. If it finds that the charges have basis in
fact, then the proceedings become public. By a recommenda-
tion of two-thirds of the commission members, the Supreme
Court may reprimand or remove the offending judge. The
high court may also order the retirement of judges with
disabilities or personal problems that interfere with the
performance of the judicial office. Since it began to func-
tion in 1973, the JQC has conducted 140 investigations,
held twleve public proceedings, issued four reprimands,
and removed six judges from office.23 The JQC is composed
of six judges from various levels of the system, two lawyers
selected by the Board of Governors of the Florida Bar, and
five lay members appointed by the governor.
This overview reveals that the Florida judicial system
is highly modernized due to reforms mainly of the last
decade. The structure of the system has been streamlined,
merit selection and retention have been adopted, lay judges
have been all but eliminated and a commission responsible
for policing the system has been established.
At the forefront of these efforts to modernize the
system has been the Florida Bar, which has engaged both in
legislative lobbying and much "public education." Currently,
the organized bar is working closely with the Supreme Court
in order to develop an institutionalized judicial evaluation
mechanism which would take the place of the currently em-
ployed informal bar poll conducted just before merit reten-
tion elections. The adoption of such a formal device for
assessing judicial performance would bring the Florida court
system closer to the Weberian idealized rational system.
From talking to leaders of the Florida Bar and judges
and justices who are reform oriented, it is possible to
detect a relatively coherent philosophy. This philosophy,
which we have designated "progressive legalism," is pri-
marily concerned with the technical aspects of judicial
performance and administration and downplays the political
elements inherent in the judicial process. Indeed, where
"ploitics" are perceived to operate in the system, the
legal community invariably takes steps to minimize the ap-
pearance of same.
Merit selection, then, is but one aspect of an under-
lying process of formal rationalization, a process directed
by lawyers and justified by the tenets of progressive
legalism. There are those, of course, who are skeptical of
the bar's efforts in this area. Hence, merit selection and
the associated reforms are still subject to controversy,
both in Florida and nationwide.
The Debate Over Judicial Selection
The long-running debate over which method of judicial
selection is "best" can be seen as a confrontation between
the proponents of government by experts and proponents of
populist democracy. The Federalists, in their espousal of
judicial appointment and mechanical jurisprudence, are not
wholly dissimilar from the Progressives who invented merit
selection. Both clearly have elitist orientations toward
judicial recruitment. On the opposite side of the fence
stand the Jacksonians, the Populists and all other majori-
It is unfortunate that the opponents in this contro-
versy frequently talk past one another rather than arguing
the merits of commonly understood propositions. A survey
of this literature reveals disparate concerns on the parts
of the participants. Progressive legalism, as we have
designated the philosophy of the supporters of merit selec-
tion and relevant reforms, is primarily concerned with the
"quality" of judges and, ultimately, justice itself. The
"political tradition," comprising the various opponents of
the Missouri Plan, focuses almost exclusively on the issues
of accountability and control.24
The thrust of the progressive legalistic perspective
on judicial selection is that the judiciary is increasingly
in need of highly trained experts in law who can cope with
the enormous intellectual tasks imposed on the courts by
advanced industrial and technological society. The old
system of elections, especially partisan elections, dis-
courage "the best qualified from candidacy,"25 and give the
voters a choice "only among mediocrities."26
The belief is that the most able among potential
judges will eschew the ordeals associated with campaigning:
public appearances, "gladhanding," fundraising and the in-
evitable anxiety about what substantive issues may be
ethically addressed in a judicial campaign.
Yet even if demonstrably qualified individuals should,
despite the political morass, occasionally appear on ballots
for judicial posts, there is no reason to suppose that the
voters would be able to identify them. As several judges
on Florida's appellate courts noted, elections for trial
judgeships in Dade County often have more than a dozen can-
didates. In these cases, it is the judge at the top of the
ballot who has the greatest chance of winning. We know of
no empirical confirmation of this tendency, but it is ob-
viously a salient consideration among many of Florida's
Furthermore, the progressive legalist will argue, judges
must be independent of the popular will so that they can
follow the dictates of law rather than majority sentiment.
Merit selection is favored because, in addition to selec-
ting more qualified judges, it depoliticizes the selection
process. Of course, nobody believes that merit selection
is wholly devoid of politics. But some believe that the
politics of the bar are preferable to the politics of parties.
The progressive legalist will further argue that the
efficiency of the administration of justice can be enhanced
by merit selection because the judge will "devote his entire
attention to the business of his court, since he will not be
permitted to take part in political campaigns."27 This is
another interesting claim which has, to our knowledge, not
attracted empirical research.
The image of the courts possessed by the ideal
typical progressive legalist is that of the fully indepen-
dent, autonomous, apolitical, professional, meritocratic
judiciary. Those who oppose merit selection often possess
a very different image of the courts, as we shall see.
The most salient criticism of merit selection is that
it removes from the people their sovereign right to elect
all leaders, including purportedly "apolitical" judges.
Though Progressives are often thought to espouse "good
government," populists consider a government that is closer
to the people to be "better" than one that is independent
and detached from popular sympathies.
Opponents of merit selection are also apt to be skep-
tical about the role of the organized bar in the Missouri
Plan. Obviously the central feature of merit selection,
the judicial nominating commission, is dominated by lawyers.
In most states using merit selection and certainly in Florida,
nominating commissions are primarily composed of lawyers.
Given the observed tendency for professions to control
their workplaces, there may be professional self-interest
lurking behind the bar's involvement in the judicial selec-
In the previously described interviews with Florida ap-
pellate judges, we explored the jurists' sentiments on these
fundamental issues of judicial selection.
We must stress at the outset that the thirty-nine
judges we interviewed were not of one mind on these issues.
After several months had passed during the interview stage
of this research project, we discerned two distinct camps
among the appellate judges. By far the larger camp was
comprised of the proponents of merit selection who also
tended to favor the other reforms we have characterized
as symptomatic of progressive legalism. The minority camp
opposed merit selection (and generally retention as well)
and was skeptical about the reform activities of the Florida
Bar. Not surprisingly, this cleavage is related to the
mode of selection of the judges in our study. Table I pre-
sents binomial responses of the judges to selected questions
on judicial selection. Binomial categorization is inferred
from verbal responses to open ended questions. In most
cases, this was easy. The judges we interviewed by and
large had strong opinions pro or con on these issues.
Among those less sanguine about merit selection were
several judges who criticized the "elitist politics" of the
Florida Bar. One judge in particular, a self-proclaimed
Jacksonian, seemed quite incensed by the existence of judi-
cial nominating commissions. Like the ideal type Jacksonian
discussed earlier in this chapter, he spoke of the "infringe-
ment of a sovereign right of the people."29
Other judges in the "skeptical" camp objected neither
to the bar's role in selection nor to the infringement of
an alleged right. Rather they pointed to the vestiges of
partisan politics that tainted the reformed system. Several
Responses of Judges on Florida District
Courts of Appeal to Questions on Judicial Selection,
by Mode of Selection
Do you favor merit
selection of judges
on the appellate
Has the implementa-
tion of merit selec-
tion improved the
quality of judges
selected to the ap-
Has the implementa-
tion of merit selec-
Does merit selection
provide the organized
bar with undue in-
fluence over the
(24) (2) (26)
(18) (5) (23)
(13) (7) (20)
(3) (9) (12)
YES NO N
(9) (4) (13)
(6) (5) (11)
(2) (10) (12)
(1) (7) (8)
Note: N varies over questions due to temporal constraints
*Includes judges selected by gubernatorial appointment and
talked of "subtler" and "more sophisticated" forms of cam-
paigning and patronage.
Several of the elected judges pointed out that since
the inception of merit selection, nearly all judges selec-
ted have been of the same political party (Democrat) as the
appointing governor. Furthermore, they cited several
examples of merit selected judges who had previously cam-
paigned for or otherwise assisted the governor that appointed
them. It seems then that, despite some judges' rhetoric to
the contrary, merit selection has not eliminated all ele-
ments of partisan politics from the judicial selection pro-
The proponents of merit selection tended to emphasize
the judicial competence or quality factor. As Table 1 shows,
merit selected judges were more inclined to the view that
merit selection improves the overall ability of the judicial
system. However, it was an elected judge who assured us
that "based on personal experience, it is true" that merit
selection has improved the caliber of judges recruited.
Subsequent investigation revealed that one of this judge's
colleagues had just retired after engaging in some dubious
When questioned about the nature of judicial competence,
most of the judges agreed that it is not something that is
amenable to simple measurement and that it takes much legal
and/or judicial experience to detect and evaluate compe-
tence. Invariably, the merit selected judges were confident
that the lawyer-dominated judicial nominating commissions
were capable of such judgments. Many assured us that "these
commissions, even the lay members, take their jobs very
seriously." Several of the judges explained that the com-
missions prepare comprehensive profiles of candidates' legal
experience, personal and professional reputations, community
service records, characters, etc. Past partisan political
activity was seldom mentioned.
Given the fact/value separation, it is obvious that no
amount of empirical evidence can resolve the fundamental
philosophical questions attendant on this controversy. The
issue of judicial quality is the prime case-in-point. It
is highly doubtful that the opponents in this controversy
could ever agree on a set of operations that measure judi-
cial quality. Many indicators have been proposed; none has
proved satisfactory to all parties. Given the lack of con-
census, researchers must confine inquiry to less salient
and politicized concerns.
There are many empirical issues raised by both sides
of the judicial selection debate. Although empirical evi-
dence cannot resolve fundamental philosophical differences,
it can render some questions relevant and others irrelevant.
It can clarify positions and demonstrate likely practical
consequences of adopting either position. For these reasons,
let us survey the literature in which political scientists
attempt to make factual and theoretical contributions to the
study of judicial selection.
Glenn R. Winters, "Judicial Selection and Tenure,"
in Glenn R. Winters (ed.), Judicial Selection and Tenure:
Selected Readings (Chicago: American Judicature Society,
1973), pp. 21-22.
A concise treatment of "mechanical jurisprudence" as
propounded by John Marshall and its relationship to the
selection and impeachment processes appears in Alpheus T.
Mason and William M. Beaney, American Constitutional Law:
Introductory Essays and Selected Cases, sixth ed. (Engle-
wood Cliffs, N.J.: Prentice-Hall, (1978), pp. 23-24. For
an explanation of how the economic and political elitism
of the Federalists colored the language of the Constitution
and the early philosophy of jurisprudence in this country,
see Charles Beard, An Economic Interpretation of the Con-
stitution (New York: Macmillan, 1962), pp. 7-18. The
political utility of the "myth of mechanical jurisprudence"
is examined in Joel Grossman and Herbert Wells, Constitu-
tional Law and Judicial Policy Making (New York: John
Wiley and Sons, 1972), pp. 4-6. Other relevant sources are
Phillip Kurland, Politics, the Constitution and the Warren
Court (Chicago: University of Chicago Press, 1970);
Daniel Boorstin, "The Perils of Indwelling Law," in Wolff
(ed.), The Rule of Law (New York: Simon and Schuster,
1971); Alexander M. Bickel, The Least Dangerous Branch
(Indianapolis: Bobbs-Merrill, 1963) and Alexander Hamilton,
The Federalist #78 (New York: New American Library, 1961).
The literature addressing the issues of judicial in-
dependence and accountability is far too voluminous to be
listed here in comprehensive fashion. For a good summary
of the issues, see David Adamany and Phillip Dubois,
"Electing State Judges," Wisconsin Law Review 768 (1976).
4Larry C. Berkson, "Judicial Selection in the United
States: A Special Report," 64 Judicature 176 (1980), p.
Ibid., pp. 176-177.
Allan Ashman and James J. Alfini, The Key to Judicial
Merit Selection: The Nominating Process (Chicago: American
Judicature Society, 1974), pp. 9-10.
7Richard A. Watson, "Judging the Judges," in Glenn R.
Winters (ed.), Judicial Selection and Tenure, op. cit., p.
Berkson, op. cit., pp. 179-93.
9Roscoe Pound, "The Causes of Popular Dissatisfaction
with the Administration of Justice," 20 Journal of the
American Judicature Society 178 (1937).
1William Howard Taft, "The Selection and Tenure of
Judges," 33 A.B.A. Report 418 (1913).
11Albert Kales, Unpopular Government in the United
States (Chicago: University of Chicago Press, 1914). See,
in particular, chapter 17.
2Glenn R. Winters, "The Merit Plan for Judicial Selec-
tion and Tenure-Its Historical Development," in Winters,
Judicial Selection and Tenure, op. cit., p. 34.
4Ibid., p. 35.
1For an analysis of the impact of bar polls on the
outcomes of merit retention elections, see John M. Scheb,
"The Bar Poll and Merit Retention: An Analysis of Florida's
Experiences in 1978 and 1980." Unpublished.
Winters, "The Merit Plan for Judicial Selection and
Tenure," op. cit., p. 36.
18Ibid., p. 37.
1Watson, op. cit., p. 59.
2Berkson, op. cit., p. 178.
2Robert L. Anderson and George J. Miller, "Law and the
Courts," in Manning J. Dauer (ed.), Florida's Politics and
Government (Gainesville: The University of Florida Presses,
1980), p. 159.
2Florida Constitution (Tallahassee: Office of the
Secretary of State, 1980), Article V, subsection 4(b).
2Anderson and Miller, op. cit., p. 168.
2For commentary on and exhaustive documentation of
these disparate traditions in the advocacy of various selec-
tion methods, see Craig Ducat and Victor E. Flango, "In
Search of Qualified Judges: An Inquiry into the Relevance
of Judicial Selection Research," a paper prepared for the
1975 Annual Meeting of the American Political Science Asso-
25Jack Peltason, "Merits and Demerits of the Missouri
Court Plan," in Glenn Winters (ed.), Judicial Selection and
Tenure, op. cit., p. 95.
26Ibid., p. 96.
27Ibid., p. 98.
28Barry Golomb, "Selection of the Judiciary: For
Election," in Glenn R. Winters (ed.), Judicial Selection
and Tenure, op. cit., p. 95.
29In deference to the wishes of the judges we inter-
viewed, their names are omitted from the record.
JUDICIAL SELECTION RESEARCH IN POLITICAL SCIENCE
Although the corpus of literature dealing with judi-
cial selection is immense, most of it is purely polemical
in nature and appears in law reviews and journals of ad-
vocacy.1 Actually, the body of empirical literature ap-
pearing in the political science journals is small and
The most significant empirical issue to which politi-
cal scientists interested in judicial selection have ad-
dressed themselves is: Does it make any difference which
mode of judicial selection is employed? The kinds of poten-
tial differences that have been studied include the back-
grounds of selected judges,2 the actual decisional behavior
of selected judges,3 and, increasingly, the group or groups
controlling the selection process. Less relevant to our
concerns here are the studies of voter behavior in various
types of judicial elections.5
There are some obvious methodological pitfalls to be
encountered by the researcher seeking to compare the effects
of one selection system against others. Perhaps most obvious
is the difficulty arising from the complexity of operative
selection systems. There are five unique methods of judicial
selection currently operating in the American states:
gubernatorial appointment, legislative appointment, partisan
election, non-partisan election and merit selection. Very
often, several of these will operate simultaneously within
one state, usually for different levels of courts. Florida
is an example of a state employing merit selection and re-
tention for all appellate judges while employing non-partisan
elections for trial judges (with interim trial court vacan-
cies filled by merit selection). Additionally, since state
legislatures are given to changing selection systems, re-
searchers must determine exactly which method of selection
is associated with each judge in the study. Some past com-
parative research is tainted by the fact that the researchers
did not separate truly elected judges from ad interim ap-
pointments in a state ostensibly employing judicial elec-
Another crucial problem is that actual selection
practices may deviate appreciably from the legally prescribed
mode of selection. Canon has illustrated this phenomenon
using the state of Michigan as an example:
In Michigan, the justices are elected
on a non-partisan ballot. However, only
on receipt of a party convention's nomina-
tion can a candidate normally be listed on
this ballot. Moreover, my Michigan acquain-
tances tell me, the "non-partisan" campaign
carries strong partisan overtones.
Researchers conducting rather superficial investiga-
tions involving only correlation of measurable variables
must guard against dangers of misclassification of selection
systems. Such oversights are bound to impair the credi-
bility of research conclusions.
Another common pitfall is the tendency to fall victim
to spurious relationships. This problem is particularly
acute when comparing judicial characteristics across states
employing different selection systems. One must be sure
that systematic differences which appear are, in fact, due
to differences in selection per se and not to other less
obvious differences in political culture.
With these caveats in mind, let us begin to review the
empirical findings of political scientists who have studied
judicial selection systems. We shall commence with those
studies that have focused on judicial backgrounds and their
relationship to mode of selection.
In assessing the effect of mode of selection on the
social background characteristics of the judiciary, re-
searchers assume that a judge's background, i.e. his socio-
economic origin, race, religion, party affiliation,
geographical origin and education are variables deserving
empirical study. Granted that proponents and opponents of
merit selection have at times made claims about the selec-
tioanl biases inherent in the various selection methods,
but there is little evidence that background variables, as
enumerated above, have any appreciable impact on judicial
decision-making behavior.10 Still, it is perhaps politi-
cally relevant to know what kind of individuals are favored
by the various selection systems.
In comparing the trial court judges in twelve states,
Herbert Jacob concludes that "judicial selection procedures
recruit judges with some different background characteris-
tics."' Specifically, Jacob found that partisan elections
and merit systems are apt to recruit "locals" while other
modes of selection recruit "cosmopolitan" judges.12 Jacob
also found that gubernatorially and legislatively appointed
judges are likely to have had legislative experience while
elected and merit selected judges are more prone to have
had enforcement experience. Furthermore, Jacob found
that gubernatorially and legislatively appointed judges
possess more formal education than judges selected by the
In his widely cited replication of Jacob's study,
Bradley Canon argued that most of the variation in back-
grounds that Jacob attributed to mode of selection disap-
pears when region, or "political culture," is accounted for.15
Nevertheless, in a recent edition of Justice in America,
Jacob persists in asserting that "each procedure gives ac-
cess to different groups and establishes different sets of
informal qualifications. Each results in somewhat different
types of individuals being chosen for the bench."16
Table II shows a comparison of typical background vari-
ables for merit selected, elected and appointed judges cur-
rently serving on Florida's District Courts of Appeal. As
can be readily seen, the data show no appreciable background
differences due to mode of selection. The marginally greater
Selected Background Characteristics of Judges
on Florida District Courts of Appeal,
by Mode of Selection
Mode of Selection
1) Geographical origin:
(n = 5)
(n = 8)
(n = 26)
4) Prior Experience
5) Legal Education
University of Florida
Other Florida schools
Ivy League schools
*Includes both partisan and non-partisan elected judges.
tendency for merit selected judges to have attended non-
Florida law schools is probably a function of demographic
change rather than change in selection mode.
The most interesting differences shown in Table II are
in the sex and race categories. Many judges agreed with our
speculation that these four judges (one black male and three
white females) would never have been selected in contested
elections. Some, however, pointed out that, if judicial
elections were still operating, there would be occasion for
interim gubernatorial appointment. They were confident that
the current Florida governor, Bob Graham, would, under such
circumstances, attempt to recruit qualified blacks and
women for appellate positions. Given the plausibility of
this hypothesis, we think it inappropriate to credit the
merit selection plan per se with the recruitment of judges
other than white males.
We find, then, no compelling evidence to undermine the
conventional wisdom that judicial selection structures are
unrelated to differences in judicial backgrounds. Yet we
must admit that our findings are rather sketchy: we do not
present data on the full range of background variables which
have appeared in the literature. But, as Ducat and Flango
point out, there seems to be little hope for the utility of
the judicial selection variable as an explanation for vari-
ation in judicial backgrounds.17
Let us turn now to the literature which relates judi-
cial selection to judicial decision-making directly. The
literature here is quite sparse, primarily due to the
methodological difficulties involved. There are four pos-
sible operational approaches to measuring decision-making;
each has its own advantages and drawbacks.
One approach is to focus on sentencing severity in
trial courts. Gibson has used this method in his study of
the effect of political attitudes and role perceptions on
behavior.18 The use of sentencing severity is attractive
due to the interval level nature of the data: years. Yet
some may claim that this aspect of judicial decision-making
is trivial in contrast to the substantive policy-making
behavior of the appellate courts. As yet we are aware of
no study relating mode of selection to variance in sen-
A second approach is to examine dissent rates. In his
study of Louisiana judges, Kenneth M. Vines hypothesized
that, given the imperatives of re-election, elected judges
would be less apt to dissent than would appointed judges.19
In direct contrast to Vines' suggestion, Canon and Jaros
expected a higher dissent rate among elected judges because
"elected judges may feel a direct and more exclusive sense
of popular constituency than appointed ones."20 Upon data
analysis, Canon and Jaros found that indeed, elected judges
were more prone to dissent than appointed judges. Interes-
tingly, so were merit selected judges: Yet Canon and Jaros
found that this relationship diminished considerably when
intervening variables were taken into account.21
Another approach involves the comparison of reversal
rates for judges of different selection modes. In a com-
pletely rationalized system, one would expect that reversal
rates would be extremely low. If judicial decisions were
made automatically based on clear rules of law, then there
would be little need for reversal by higher courts. Hence,
if merit selection is but one aspect of legal rationaliza-
tion, the merit selected judges should enjoy lower reversal
rates than their colleagues selected by more traditional
means. However, we suspect that such an effect would emerge
only after merit selection had been in existence for some
time at all levels of courts. In that case, comparison of
reversal rates would have to be on a cross-state basis.
This avenue of research cannot be pursued until we have had
much more experience with merit selection.
Perhaps the most sophisticated and credible approach
is that taken by Atkins and Glick in their study of judi-
cial recruitment and state supreme court decisions.22 These
researchers compared mean support for appellants in five
substantive categories in all fifty states and found that
mode of selection did not significantly explain variation
in these means.
By the authors' own admission, the Atkins and Glick
study has several limitations.23 Most obvious is the
failure to distinguish between ostensible and actual selec-
tion procedures. The problem stems from the fact that, for
the sake of methodological convenience, Atkins and Glick
use states as units of analysis, labelling each by the
selection mode ostensibly employed for the supreme court.
The problem is that a state officially employing partisan
election might in practice be appointive, given a sufficient
number of interim gubernatorial appointments. This devia-
tion from formal selection procedure might very well have
affected the conclusions that Atkins and Glick drew from
Another limitation is the separation of partisan and
non-partisan election in the analysis. "Clearly, the
available data shown suggest that the selection process
and politics associated with each kind of election are
surprisingly similar."24 Again we are faced with a situa-
tion in which methodology perhaps biases outcome.
To eliminate these sources of bias as well as the
threat to validity stemming from variation in political
culture, a comparison of judicial selection modes should
use the individual as the unit of analysis, drawing the
research population from one state in which several selec-
tion procedures are in use for one level of the judiciary.
As we noted in Chapter II, Florida has recently changed to
the Missouri Plan for its appellate courts. Currently,
there are judges serving on the District Courts of Appeal,
the intermediate appellate courts, who were recruited
through gubernatorial appointment, non-partisan election
and the merit plan.25 Table III provides data on modes
of initial selection for judges on these courts as of
January 1981. This fact makes the Florida District Courts
a good laboratory in which to conduct comparative judicial
The obvious conclusion from the studies we have cited
is that judicial selection is not very useful in explaining
court output. Yet the number of credible studies in this
realm is very small. There is, in our opinion, room for
more comparative and replicative research.
A very different tradition of research into judicial
selection is concerned with the empirical issues raised by
those who favor the elective process and those who are op-
posed to merit selection because it is undemocratic. Re-
searchers in this tradition focus on voter behavior in
judicial elections (including merit retention elections)
and on turnover of judicial personnel under different re-
Perhaps most notable of this research tradition is
the work of Phillip Dubois.26 Dubois is primarily concerned
with whether judicial elections are effective mechanisms of
popular control over the courts. Dubois studied mean turn-
out and mean roll-off in state judicial elections from 1948
to 1974.2 He concluded that turnout and consistency of
voter choice are both promoted by partisan elections. Given
that party identification of judges has been linked to ju-
dicial behavior through case studies, Dubois expresses hope
Mode of Initial Selection of Judges on
Florida District Courts of Appeal,1981
appointed by governor
Thomas H. Barkdull
Edward F. Boardman
E. R. Mills, Jr.
T. Truett Ott
James C. Dauksch
Richard W. Ervin, III
Phillip A. Hubbart
Harry L. Anstead
Gavin K. Letts
Stephen H. Grimes
James C. Downey
Guyte P. McCord
John M. Scheb
Robert P. Smith, Jr.
Paul W. Danahy
John H. Moore, II
Herboth S. Ryder
John R. Beranek
Alan R. Schwartz
Anne Cawthon Booth
Leander J. Shaw, Jr.
Hugh H. Glickstein
Warren H. Cobb
Winifred L. Wentworth
Daniel T. K. Hurley
Doublass B. Shivers
Winifred J. Sharp
Larry G. Smith
George W. Hersey
Frank D. Upchurch, Jr.
Joe A. Cowart
that party identification can serve as the mechanism through
which the voters retain control over judicial output.28 Ob-
viously, Dubois is committed a priori to judicial elections;
he avoids the issues of quality and competence raised by
proponents of merit selection. To those committed to an
independent judiciary, Dubois' research findings are excel-
lent arguments for merit selection and retention.
Although they can hardly be classified as opponents of
merit selection and retention, Susan Carbon and Larry
Berkson have conducted research into voter behavior and
judicial turnover in retention elections.9 Their main
objective is to explain why so few judges are ousted by the
voters in merit retention elections. They find that judges
are occasionally opposed on the basis of controversial
decisions, scandals, criminal charges and temperament. Yet
to date less than two percent of incumbent judges have
failed to secure retention by the voters.0 In a closing
note, Carbon and Berkson argue that this situation is
exactly what the designers of merit retention had in mind;
they wanted a system under which judges would be unworried
about catering to public pressures.31 In this view, ouster
under merit retention is similar in purpose to impeachment,
occurring after flagrant malfeasance.
To date, Florida has held two retention elections: one
in 1978 and one in 1980. The outcomes of these elections
make sense in light of the Carbon and Berkson findings. No
Florida judge has failed to secure retention. In most
cases, the margin of retention was substantial if not over-
whelming. However, in one case in the 1980 election, a
Supreme Court justice nearly lost his tenure. Interes-
tingly, this justice had been involved in something of a
scandal although no criminal charges or other formal sanc-
tions were initiated.
After their excellent review of judicial selection
literature circa 1975, Ducat and Flango expressed pessimism
about the future of research that models judicial selection
mode as an independent variable.33 We must belatedly con-
cur with their evaluation: no significant research endeavor
since their assessment has demonstrated that their pessimism
Ducat and Flango call for a new research angle-
investigation of judicial selection as "one of a number of
dependent variables." They point the way by comparing
socio-economic characteristics of states adopting the same
mode of judicial selection. On the basis of data from all
fifty states, Ducat and Flango conclude that
Legislative election, and to a lesser
extent partisan election and guberna-
torial appointment, occur in highly
industrialized states, while non-
partisan election and merit selection
are found in non-manufacturing, more
agricultural and less urbanized
states. . It is interesting to
note, too, that states that use parti-
san election have the lowest ratio of
lawyers per 100,000 population.35
The direction that Ducat and Flango indicate appears
to be a promising one. Perhaps if merit selection were
viewed as but one of many components of judicial moderni-
zation, as we have earlier suggested, we might find in-
teresting correlations between degree of modernization and
socio-economic and structural variables. In structural
terms, there may be a relationship between whether a state
bar association is integrated and modernization.36 This
could be refined by employing the temporal dimension: when
was the bar integrated? It seems that there is much room
for imagination in examining mode of selection as a depen-
dent variable, yet we will not undertake such empirical
research in this dissertation. That prospect is still on
the research agenda.
If this is an unusually short review of literature in
a political science dissertation, it is because the litera-
ture based on empirical research into judicial selection is
Perhaps the major criticism that is made against judi-
cial behavior research generally is that it is often atheo-
retical. Judicial behavioralists are particularly
notorious for generating plenty of statistical relationships
that bear no consequences for theory. Certainly this criti-
cism can be applied to much of the judicial selection re-
search in political science. Let us then, before advancing
a new hypothesis about the effect of judicial selection
modes, explore the social science literature on role theory
which has strong relevance to the administration of jus-
tice in modern society.
An excellent bibliography of judicial selection is
Nancy Chinn and Larry C. Berkson, Literature on Judicial
Selection (Chicago: American Judicature Society, 1980).
Herbert Jacob, "The Effect of Institutional Differ-
ences in the Recruitment Process: The Case of State Judges,"
13 Journal of Public Law 104 (1964); Bradley C. Canon, "The
Impact of Formal Selection Processes on the Characteristics
of Judges-Reconsidered," 6 Law and Society Review 579
(1972); Berg, Green, Schmidhauser and Schneider, "The Con-
sequences of Judicial Reform: A Comparative Analysis of
the California and Iowa Appellate Systems," 28 Western
Political Quarterly 263 (1975).
3Burton M. Atkins and Henry R. Glick, "Formal Judicial
Recruitment and State Supreme Court Decisions," 2 American
Politics Quarterly 427 (1974); Stuart Nagel, "Comparing
Elected and Appointed Judicial Systems," (Sage Professional
in American Politics, Series No. 04-001, 1973).
Joel B. Grossman, Lawyers and Judges: The A.B.A. and
the Politics of Judicial Selection (New York: John Wiley,
1965); Herbert Jacob, Justice in America: Courts, Lawyers
and the Judicial Process (Boston: Little, Brown, and Com-
pany, 1978). See, in particular, pp. 59-63; Dietrich
Reuschmeyer, Lawyers and Their Society (Cambridge: Harvard
University Press, 1973); John Schmidhauser, Judges and
Justices: The Federal Appellate Judiciary (Boston: Little,
Brown, and Company, 1979); See, in particular, chs. Richard
Watson and Rondal G. Downing, The Politics of the Bench and
Bar: Judicial Selection Under the Missouri Non-partisan
Court Plan (New York: John Wiley and Sons, 1969).
5Burton Atkins, "Judicial Elections-What the Evidence
Shows," 50 Florida Bar Journal 152 (1976); Susan Carbon
and Larry C. Berkson, Judicial Retention Elections in the
United States (Chicago: American Judicature Society, 1980);
Phillip DuBois, "Judicial Elections and Judicial Policy:
The Case for the Partisan Election of Judges," paper pre-
sented at the 1977 Annual Meeting of the American Political
Our interviews indicate that Florida trial judges
are generally skeptical of merit retention, mainly due to
a perception that merit retention enhances the power of the
press to control outcomes in judicial elections. We must
note, however, that such a perception is empirically un-
This methodological problem is discussed in Craig
Ducat and Victor E. Flango, "In Search of Qualified Judges:
An Inquiry into the Relevance of Judicial Selection Re-
search," a paper presented at the 1975 Annual Meeting of
the American Political Science Association.
Canon, op. cit., p. 591.
Malcolm R. Wilkey, "Judicial Background and Decision-
Making," in Glenn R. Winters (ed.), Judicial Selection and
Tenure (Chicago: American Judicature Society, 1973);
Stuart Nagel, "Political Party Affiliation and Judges'
Decisions," 55 American Political Science Review 844 (1961).
Nagel finds that party identification explains some varia-
tion in decision-making. Ducat and Flango, op. cit.,
conclude after a thorough review of literature circa 1975
that other background variables are of little use as explana-
tory variables. We are aware of no research since 1975 that
violates the Ducat and Flango expectation.
J1acob, op. cit., p. 113.
12 id., p. 108.
Ibid., p. 108.
Ibid., p. 110.
1Ibid., p. 108.
1Canon, op. cit., p. 588.
1Herbert Jacob, Justice in America: Courts, Lawyers and
the Judicial Process (Boston: Little, Brown and Co.), p. 103.
1Ducat and Flango, op. cit., p. 29.
18James Gibson, "Judges' Role Orientations, Attitudes,
and Decisions: An Interactive Model," 72 American Political
Science Review 912 (1979).
1Kenneth M. Vines, "Political Functions of a State
Supreme Court," in Vines and Jacob (eds.), Tulane Studies in
Political Science: Studies in Judicial Politics (New Orleans:
Tulane University Press, 1962).
2Bradley C. Canon and Dean Jaros, "External Variables,
Institutional Structure and Dissent on State Supreme Courts,"
3 Polity 183 (1970), p. 183
2Atkins and Glick, op. cit.
2Ibid., pp. 445-446.
Ibid., p. 447.
25Of the entire population of active judges (n = 43), 29
were selected by merit plan, 8 were elected on non-partisan
ballot and 6 were appointed by governors.
2Dubois, op. cit.
2Ibid., p. 13.
2Ibid., p. 47.
2Carbon and Berkson, op. cit.
3Ibid., pp. 21-40.
3Ibid., p. 24.
Joe Boyd, retained by 57% of the electorate.
Ducat and Flango, op. cit., p. 30.
Ibid., p. 31.
Ibid., pp. 26-27.
36"Integration" in this context refers to legally
prescribed membership in the state bar association for all
MERIT SELECTION, THE JUDICIAL ROLE
AND COURT MODERNIZATION
Before probing the nexus suggested by the title of this
chapter, let us define what we mean by "judicial role" and
explore its analytic utility in the study of the judicial
process generally. Deustch and Krauss argue that there are
three distinct usages of the term "role in social science
1. The role consists of the system
of expectations which may exist in the
social world surrounding the occupant of
a position-expectations regarding his
behavior toward occupants of some other
position. This may be termed the prescribed
2. The role consists of those spe-
cific expectations that an occupant of a
position perceives as applicable to his
own behavior when he interacts with occu-
pants of some other position. This may
be termed the subjective role.
3. The role consists of the specific
overt behavior of the occupant of a posi-
tion as he interacts with occupants of
some other position. This may be termed
the enacted role.
As it relates to the judicial role, the "prescribed
role" can be found in the general societal expectations of
judges as elicited through interviews with members of the
judiciary's attentive public. The "enacted role" can be
found in the actual behavior of judges, i.e. inferred from
the content of judicial opinions. We opt for neither of
these approaches. The first is simply not germane to our
theoretical concerns; the second is methodologically too
involved for our limited resources. Thus we opt for the
"subjective role" as determined by questionnaire. This
aspect of the judicial role is both theoretically and
methodologically well suited to our purposes and resources.
We recognize that role orientations are the products
of interactions with other relevant factors; that there is
a set, perhaps a system, of role expectations surrounding
the occupant of any social position; and that role orienta-
tions which can be generalized from observation are best
conceived of as inter-subjective orientations.
We utilize role analysis because of its ability to link
the structural and behavioral concerns in our study of judi-
cial selection. Specifically, we are interested in how
changes in judicial selection structures affect the role
orientations of judges on Florida's appellate courts. A
short review of the literature on judicial decision-making
will illustrate the utility of role analysis in the explana-
tion of judicial behavior.
Role theory first entered the study of courts as a
means for improving the predictability of judicial decisions.
Rejecting the notion that decisions could be adequately ex-
plained in terms of legal elements, political scientists
began to look to extra-legal factors. Glendon Schubert, the
pioneering judicial behavioralist, proposed simple behavioral
models employing political attitudes as explanations of
decisions.2 At the outset, Schubert used the much criticized
"scalogram" approach and later moved into more sophisticated
multi-dimensional procedures. In these efforts to explain
behavior Schubert was only moderately successful.3
One of Schubert's most vocal critics, Theodore Becker,
proposed the inclusion of the judicial role variable in
analyses of behavior. In his seminal work on the theory and
methodology of judicial behavior research, Political Behavior-
alism and Modern Jurisprudence,4 Becker posited the judicial
role as an intervening variable. According to Becker's con-
ceptualization, the judicial role mediates between political
attitudes and case opinions allowing certain values to influ-
ence decision-making in certain instances.5
Perhaps the best-known illustration of the intervening
effect of the role variable is the case of Mr. Justice Felix
Frankfurter. The civil liberties scales constructed by
Schubert and Spaeth through analysis of Supreme Court opinions
resulted in the classification of Frankfurter as unsympathe-
tic to libertarian interests. Reacting to this "suspect
classification," Joel Grossman argued that Frankfurter was
anything but unsympathetic to civil liberties.7 Rather,
argued Grossman, Frankfurter's consistently "poor" record in
such cases was a function of his conception of the judicial
role in general, and of the Supreme Court specifically.8
Frankfurter harbored a narrow, traditional role orientation
that eschewed judicial activism and emphasized judicial re-
straint. This role orientation was termed by Grossman "the
denial of judicial responsibility." Consequently, if we
can believe Grossman's analysis, Frankfurter's libertarian
sympathies were held in abeyance by his judicial philosophy.
In a similar vein to Grossman's study stands a piece by
Dorothy B. James.10 James considered judicial role statements,
both on and off the bench, by Justices Douglas and Jackson.
In this non-quantitative analysis, James butresses Grossman's
conclusion that role orientations play an important role
in determining decisional outcomes.
Despite general agreement among judicial scholars as
to the importance of the role orientation as a determinant
of behavior, no one had, until recently, been successful in
developing an empirical model which systematically relates
role orientations to decisional variation. In a study pub-
lished in 1977, J. Woodford Howard explored "the relationships
among judicial role perceptions and voting behavior in three
leading intermediate tribunals-United States Courts of Ap-
peals for the Second, Fifth and District of Columbia Circuits
against a backdrop of the political orientations of their
members ."11 Howard elaborates:
The data concerning political values
and role perceptions are derived from
off-the-record interviews conducted
by the author with 35 active and senior
circuit judges of the three tribunals
during 1969-71. The voting data are
derived from analysis of all decisions by
the three tribunals after hearing or
submission during FY 1965-67 (N=4,941),
roughly 40% of total cases so decided
by U.S. circuit courts in this period.
Thirty judges, slightly less than a
third of total federal circuit judges,
participated in both the interviews
and the decision .12
After analysis of cross-classification tables, Howard
concludes that "different role perceptions, though untested
in exclusively lawmaking situations, were moderately assoc-
iated with liberal-conservative voting behavior"
Howard further observes that "judicial role perceptions in
the three courts appear neither so weak as to be subsumed
under personal preferences nor so strong as to be considered
the most significant single factor in the whole decisional
A more impressive empirical study of judicial role
orientations and behavior was conducted by James Gibson and
reported in the American Political Science Review in 1978.1
Gibson sought to explain variation in sentencing severity on
Iowa trial courts in terms of political attitudes measured
on an ordinal scale of liberalism-conservatism. In doing this,
Gibson found the bivariate Pearson correlation to be "less
than spectacular."5 However, when he introduced an inter-
vening role orientation variable into the model (measured
ordinally according to "degree of attitudinal influence al-
lowed"),16 the level of explained variance rose dramatically.
Using the multiple regression technique, Gibson reported that
the interactive role-attitude model generated an R2 of .64,
i.e. 64% of the variance in sentencing severity was "explained"
by way of an interaction between role orientations and politi-
cal attitudes.17 Gibson concluded that "role orientations
do not predict the policy content of behavior; rather they
predict the criteria of decision-making."8 Gibson speculated
that "role orientations may provide an appropriate vehicle for
analyzing inter-institutional differences in decision-making
in a more systematic fashion. Differences among institutions
in the predictability of behavior from various decisional
criteria may be a function of differences in the contextual
constraints imposed on decisions through role expectations
. Though Gibson has in mind a comparative study of,
for example, courts and legislatures, it is our position that
role analysis can be useful in comparing decisional styles
in different judicial institutions. Thus role analysis
might prove useful in comparing and contrasting trial and
appellate courts, American and German courts, federal and
state courts, etc. Might this same analytic tool prove
efficacious in the comparative study of merit selected and
Given the utility of the judicial role as an instrument
for explaining court output, we feel that we are on solid
empirical and theoretical ground in relating changes in
judicial selection structures to variation in role orienta-
tions. Following the lead taken by Wahlke, et al. in their
study of the legislative system,we find role analysis a use-
ful device for tying together the structural and behavioral
study of the legislative system, we find role analysis a
useful device for tying together the structural and behav-
ioral concerns of political science.20
Before we consider just how changes in judicial selec-
tion structure are theoretically related to judicial role
orientations, let us explore the nature of the judicial role
as it has been delineated by political science. This under-
taking is problematic, however, not because of the paucity
of research done, but due to the confusion that has been
generated from the appearance of many studies, each with
its own unique terminology.
Probably the best known of the judicial role research
is the work of Henry R. Glick and Kenneth Vines.21 Vines
supervised Glick's dissertation research at Tulane, research
which led to the publication of many articles by both of
these political scientists, one jointly, the rest separately.
Unfortunately, each of these articles dealing with the na-
ture and distribution of role orientations employs unique
labels for the several orientations delineated. This re-
grettable fact makes a review of this literature more la-
borious and, more importantly, more confusing. To help
alleviate this confusion, we have tried to sort out the
vocabulary of Glick, Vines and the other writers we will
discuss in this context. Table IV presents the vocabulary
of the judicial role and attributes labels to their respec-
tive authors. The reader will notice that there is con-
siderable overlap among the writers. Yet there is enough
The Vocabulary of Judicial Role Orientations
G, GV, UB
G, GV, UB
G, V, UB
G, V, UB
Decisional Role Sector
Law Interpreter V, GV, UB, W
Law Maker V, GV, UB, W
Pragmatist V, GV
Trial Judge UB
Ungs and Baas, footnote 64.
Glick, footnote 21.
Vines, footnote 21.
Click and Vines, footnote 21.
Wold, footnote 59.
uniqueness to make matters difficult. We suspect that this
uniqueness is not entirely related to unique aspects of
objective reality-that much springs from the penchant of
political scientists to invent new terms for old concepts.
Glick and Vines developed their typologies of the ju-
dicial role based on interviews that Glick conducted with
twenty-six state supreme court justices in New Jersey,
Pennsylvania, Louisiana and Massachusetts.22 At the time
this research was conducted (1967), it was somewhat novel
for a political scientist to study judicial roles and be-
havior in the field. As Glick notes in his dissertation,
researchers "have been reluctant to approach judges because
they believed the judiciary was removed from direct scru-
tiny by an impenetrable 'purple curtain.' The image which
judges often convey and the myths developed concerning the
sanctum sanctorum [sic!] have made the risks of such re-
search seem much too high."23 Despite the "myth of the
purple curtain" and the "cult of the robe," Glick was able
to obtain a 93% level of cooperation from the judges he
contacted for interviews.24
In gathering data from which the typologies were to
be constructed, Glick employed open-ended questions which
allowed the judges to describe their roles themselves with
a minimum of constraint.25 This is the same procedure fol-
lowed by Wahlke et al. in their study of legislative roles.26
This approach has been criticized by Baas as infusing re-
searcher subjectivity into the analysis through coding
responses and collapsing categories in typological con-
struction.27 Although this is a valid criticism, the solu-
tion that Baas proposes does not eliminate researcher
subjectivity, as we shall see. The crucial question then
is: How much subjectivity? Regrettably, this query is im-
possible to answer.
Again, following Wahlke et al.,28 Glick divides the
analysis into various role sectors. "Purposive," "con-
sensual" and "decision-making" expectations of judges are
explored by Glick at some length.29 Purposive expecta-
tions refer to the set of objectives that judges pursue
qua judges. Glick elaborates:
Legal requirements set formal boundaries
on the functions that state supreme
courts can perform. Within general
limitations regarding such things as
jurisdiction, however, judges themselves
have great latitude in defining their
own objectives. The way judges perceive
their purpose is important. Perceptions
may influence the behavior of individual
judges and the combined perceptions of
judges on a particular court may shape
the way the court interacts with other
units in the state political system. 30
In order to get at the purposive expectations of judges,
Glick asked "First, how would you describe the job of a su-
preme court judge?"31 From the responses to this question,
Glick inferred six basic orientations: "(1) the adjudica-
tor; (2) the administrator; (3) the law-maker; (4) the con-
stitutional defender; (5) the affective; and (6) the work
The "adjudicator" is oriented toward the "formalistic
task of deciding cases."33 This type downplays the poten-
tial policy-making role of the courts in favor of a narrow
role orientation. The "administrator" perceives the state
supreme court's role as providing the "proper guidance for
the trial courts and for counsel and keep them in line with
federal determinations."34 Here, too, we see a rather
narrow view of the court's function-one which clearly es-
chews a policy-making role. The "law-maker" willingly em-
braces this policy-making role. "Law-makers have no doubts
that the court makes law through its decisions."35 One
purposive orientation not anticipated by Glick was the
"constitutional defender." This type is primarily con-
cerned with protecting the constitution(s) against those
who would destroy it or them.36 The "affective" types are
"those who describe their job in terms of their own feelings
or emotions."37 The "work-performers" stress the perfunc-
tory aspects of judging: doing research, preparing memos,
attending conferences, etc.3
In a later publication, Vines refines Glick's purposive
typology and reduces it to four role types.3 We should
bear in mind that Vines is working here with the same data
Glick gathered for his dissertation. Vines labels the four
purposive types the "ritualist," the "adjudicator," the
"administrator" and the "policy-maker."40
Vines' "ritualist" resembles Glick's "work performer."
This type refers to the "structured routine of the judicial
process" and stress the complexitiess of settling cases."41
It would seem, therefore, that the
ritualist orientation toward the
judicial process provided convenient
opportunities for judges who wished
to avoid commitment to policy in-
volvement or preoccupation with the
problems of the political system.
Vines' "adjudicator" is oriented toward the immediate
concern of dispute resolution but does not define the dis-
pute in terms larger than those instant to the litigation
at hand. Like the "ritualist," the "adjudicator" downplays
the policy-making role of the judicial branch.
One judge stated simply: "You're
an arbiter. You decide cases."
Others emphasized certain elements
of adjudication such as specific
functions or procedures in disposing
of litigation .43
As in Glick's typology, Vines' "administrator" is con-
cerned primarily with "the development of law or of the ac-
tivities of the lower courts."44 Quoting one of Glick's
sources, Vines characterized the administrator as a super-
visor: "The court prepares the rules for the internal ad-
ministration for all the courts in the state and prepares
the rules of practice and procedure. It's in charge of the
bar and the practice of law."45
Vines' "policy-maker" corresponds to Glick's "law-
maker." This type harbors the broadest view of the purpose
of the court. As another of Glick's respondents noted, the
judicial role is "more than just following precedent. It's
what you think is just and the right thing to do."46
In terms of the consensual sector of the judicial role,
we are here confronted with the kind of norms and habits
that judges share-that separate judging from other forms
of human endeavor. As Glick notes, "there are five kinds
of attributes and behavior which judges perceive as impor-
tant consensual norms: (1) personality attributes; (2) work
habits; (3) decision-making attributes; (4) proper personal
conduct; and (5) scholarship attributes."47 Most political
scientists are interested more in the study of conflict than
consensus. This seems to be the case, in any event, with
students of judicial behavior. Hence, it is not surprising
that the consensual sector of the judicial role has not been
studied or reported on with great frequency. Given that
their main task has been to explain variation in decision-
making, judicial behavioralists have been more oriented
toward those sectors of the judicial role in which there is
great variance: the purposive and the decisional sectors.
Clearly, the one receiving the most attention has been the
Glick reports four basic decision-making orientations
among the supreme court judges he interviewed: the "mech-
anist," the "formalist," the "realist," and the "equity"
oriented type.43 Let us consider briefly the nature of
each of these.
The mechanistt" is related to the long-standing and
amazingly resilient "myth of mechanical jurisprudence."49
This myth, which has been discredited by legal realism and
by political behavioralism, holds that the judge is an in-
consequential aspect of the process of case decision-that
"judicial power, as contradistinguished from the power of
the law, has no existence. Courts are the mere instruments
of the law and can will nothing."50 This conception of the
judicial role in decision-making has been disparagingly
referred to as "slot machine jurisprudence."51 The notion
is that a particular case is fed into the legal machinery
and out comes a decision which is clearly, inexorably de-
termined by positive legal criteria. Even though, as we
have noted, this is a thoroughly discredited notion, Glick
found supreme court judges in Louisiana who espoused this
role orientation. For our purposes in relating role
orientations to legal rationalization, we should note that
Louisiana is a "Roman Law state." Its legal system is pro-
foundly influenced by the Napoleonic code.
Glick's "formalist" perceives "decision-making to be
composed of a series of stages starting with the presenta-
tion of oral arguments, proceeding to the formulation of
and ending with the writing of opinions.53 Like the "mech-
anist," the "formalist" plays down the role of extra-legal
factors which might find their way into the decisional
The "realist" is "aware that legal sources alone do not
impel judges toward an inevitable answer in a case. Judges
alone decide litigation based on a wide variety of factors
in addition to the dictates of sacrosanct legal principles.'54
Similar to the "realist," Glick's "equity" oriented
judge recognizes that "legal doctrines or precedents are
not sufficient determinants of decisions." But the "equity"
type goes further in stressing the importance of achieving
substantive justice in the case at hand. As Glick readily
admits, the difference may be a slight one.5
In a later article co-authored by Glick and Vines, the
authors refine and condense Glick's decisional typology.57
We are presented with a new set of terms: the "law-
interpreter," the "law-maker," and the "pragmatist."58 This
framework is clearly simpler, more intuitively sensible and
more parsimonious. As Table IV indicates, this typology
has been essentially adopted by Wold in his study of judicial
role orientations in Delaware, New York, Virginia and
Maryland.59 Let us briefly consider each of the types in
Glick and Vines' condensed decision-making typology.
The "law-interpreter," which subsumes Glick's mechanistt"
and "formalist" orientations, is oriented strictly towards
legal criteria in the making of judicial decisions. Prece-
dent and rules of law are sufficient to the task of making
decisions; the process is essentially mechanistic. The task
of interpretation of legislative edict is viewed as non-
problematic as long as judges adhere to "strict construction.'60
The "law-maker," correlated with Vines' purposive
"policy-maker," is conscious of the extra-legal factors
that attend judicial decision-making. Since "no matter how
you decide a case, you're making law,61 the "law-maker"
uses his judicial position to advance his particular notions
of right and justice. Thus he embraces the tradition of
judicial activism and broad constructionism.
The "pragmatist" is, like the "adjudicator" in the
purposive sector, willing to compromise on the issues of
activism/restraint and law making/law interpreting. Thus
"pragmatists" tend to be both eclectic and adaptive in their
As we have already noted, Glick and Vines employed an
open-ended question technique. Despite its obvious advan-
tages, the open-ended approach carries with it problems of
sensitivity and precision. It may not tap the range of
existing role types and it may not lead to precise specifi-
cation of the role types that are discovered.63
These methodological problems led Ungs and Baas to em-
ploy a more comprehensive and precise method for building
empirical typologies of the judicial role.64 Unfortunately,
their study has not, until now, been replicated.
To construct their survey instrument, Ungs and Baas
examined the literature in which judges express their views
of the judicial role: case opinions, legal briefs, essays,
etc. From this body of literature, a set of approximately
500 statements was drawn to reflect a four-part typology of
the judicial role based on the Glick and Vines typologies.65
Although they purport to be studying the proposive role
sector, it is clear that the Ungs and Baas typology encom-
passes the decisional sector as well.66 Let us consider
the typology that Ungs and Baas proposed to test empirically.
The first type they labelled the "law interpreter."
This type subsumes Glick and Vines' "ritualist" and "law-
interpreter" categories. Ungs and Baas also proposed the
"adjudicator," the "administrator," and the "law maker,"
all of which correspond to the Glick-Vines terminology.67
Ungs and Baas' empirical test of the aforementioned
typology proceeded by means of Q-methodology, the inverted
factor-analytic procedure developed by William Stephenson.68
Briefly, Q-methodology is a set of psychometric and statis-
tical procedures that allow the researcher to generate a
large quantity of useful data from a sparsely populated
empirical domain. In essence, the method entails the mean-
ingful ordering of a set of statements by each member of a
group of respondents. The resulting "Q-sorts" are inter-
correlated and the resulting matrix factor analyzed. The
emerging factors represent clusters of individuals who
sorted the items similarly.69
The utility of Q-methodology for the study of the
judicial role is obvious. Theoretically structured samples
of judicial role statements are administered to judges who
must indicate their level of agreement with each statement.
The factors which emerge from the analysis represent partic-
ular role orientations. These orientations may or may not
correspond with the typological expectations of the re-
Before proceeding with a discussion of Ungs and Baas'
substantive contribution to the study of the judicial role,
let us dwell for a moment on the strengths and weaknesses
of Q-methodology, for this procedure will figure prominently
in our subsequent analysis of judicial selection and judicial
While it is clear that the Q-method possesses great
heuristic utility, one must take care to avoid the "myth
of raw empiricism" or the delusion that Q is somehow more
objective than the traditional approaches to behavioral
inquiry. Although he is not clear on this point, Brown
implies that, in executing Q, the researcher assigns no
meaning to the items of the Q-sample, that he only observes
and reports categories of respondent inter-subjectivity.70
Experience with Q reveals the speciousness of such argu-
ments. Clearly, in slelcting the initial population of items,
in choosing among correlational and distributioanl options,
sample selection options, alternative factor solutions and
rotations and, ultimately, alternative theoretical inter-
pretations, the researcher's subjectivity intrudes markedly
into the analysis. To be fair, it must be admitted that all
forms of scientific inquiry entail some subjective judg-
ments on the part of the researcher. In the case of Q,
however, the number of such judgments is increased rather
appreciably. It is therefore incumbent upon the researcher
to specify and justify each judgment made in the course of
using Q. Furthermore, the considerable subjectivity of Q-
technique demands that Q studies be replicated by other
researchers. Unfortunately, replication is a facet of the
scientific enterprise that is currently undervalued in
In ungs and Baas' study, forty-eight statements from
the initial population of 500 were randomly selected, typed
on cards and mailed to 109 judges at all levels of the Ohio
state judiciary.7 These judges were instructed to sort the
statements along an eleven-point ordinal scale according to
their agreement or disagreement with each item.72 Judges
were allowed to change the level of the scale to which they
had assigned any given statement, thus allowing their evalu-
ation of the first statement encountered to be affected by
reactions to all subsequent statements.73 In keeping with
standard Q procedure, respondents were directed to limit the
number of statements they sorted into each category of the
scale.74 The scale and "forced-choice" distribution appear
disagree -5 -4 -3 -2 -1 0 +1 +2 +3 +4 +5 agree
n 4 4 4 4 5 6 5 4 4 4 4 (N =48)