• TABLE OF CONTENTS
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 Title Page
 Acknowledgement
 Table of Contents
 List of Tables
 Abstract
 Introduction
 Merit selection and formal...
 The development of judicial merit...
 Judicial selection research in...
 Merit selection, the judicial role...
 Appendices
 Bibliography
 Biographical sketch














Title: Merit selection, role orientations and legal rationalization
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 Material Information
Title: Merit selection, role orientations and legal rationalization a Q-technique study of the Florida state district courts
Physical Description: ix, 168 leaves : ; 28 cm.
Language: English
Creator: Scheb, John Malcolm, 1955-
Publication Date: 1982
Copyright Date: 1982
 Subjects
Subject: Judges -- Selection and appointment -- Florida   ( lcsh )
Political Science thesis Ph. D   ( lcsh )
Dissertations, Academic -- Political Science -- UF   ( lcsh )
Genre: bibliography   ( marcgt )
non-fiction   ( marcgt )
 Notes
Thesis: Thesis (Ph. D.)--University of Florida, 1982.
Bibliography: Bibliography: leaves 162-167.
Additional Physical Form: Also available on World Wide Web
Statement of Responsibility: by John Malcolm Scheb, II.
General Note: Typescript.
General Note: Vita.
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Bibliographic ID: UF00097438
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: alephbibnum - 000334582
oclc - 09447086
notis - ABW4225

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Table of Contents
    Title Page
        Page i
        Page ii
    Acknowledgement
        Page iii
        Page iv
    Table of Contents
        Page v
        Page vi
    List of Tables
        Page vii
    Abstract
        Page viii
        Page ix
    Introduction
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
        Page 6
        Page 7
        Page 8
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        Page 11
        Page 12
        Page 13
        Page 14
        Page 15
        Page 16
        Page 17
    Merit selection and formal rationalization
        Page 18
        Page 19
        Page 20
        Page 21
        Page 22
        Page 23
        Page 24
        Page 25
        Page 26
        Page 27
        Page 28
        Page 29
        Page 30
        Page 31
        Page 32
        Page 33
    The development of judicial merit selection
        Page 34
        Page 35
        Page 36
        Page 37
        Page 38
        Page 39
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        Page 53
        Page 54
        Page 55
    Judicial selection research in political science
        Page 56
        Page 57
        Page 58
        Page 59
        Page 60
        Page 61
        Page 62
        Page 63
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        Page 66
        Page 67
        Page 68
        Page 69
        Page 70
        Page 71
        Page 72
    Merit selection, the judicial role and court modernization
        Page 73
        Page 74
        Page 75
        Page 76
        Page 77
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    Appendices
        Page 131
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    Bibliography
        Page 162
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    Biographical sketch
        Page 168
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Full Text











MERIT SELECTION, ROLE ORIENTATIONS AND LEGAL
RATIONALIZATION: A Q-TECHNIQUE STUDY OF THE
FLORIDA STATE DISTRICT COURTS














BY

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


1982






































To my parents














ACKNOWLEDGMENTS


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.


iii









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


PAGE

ACKNOWLEDGMENTS ............................................ iii

LIST OF TABLES ........................................ vii

ABSTRACT ..............................................viii

CHAPTER


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 ....................................
Methodology .....................................
Organization of the Dissertation .................
Notes ............................................

II MERIT SELECTION AND FORMAL RATIONALIZATION .......

Notes ...........................................

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

Notes ...........................................

V MERIT SELECTION, THE JUDICIAL ROLE AND COURT
MODERNIZATION .................................


1


73


Notes ............................................... 130







APPENDICES

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
Judges.......................................... 115


vii














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

By

John Malcolm Scheb, II

August, 1982

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

"rationalized" system.

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


viii









"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.














CHAPTER I
INTRODUCTION


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
2
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
4
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

modernization.

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
11
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
12
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

theory.13

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-
16
view.

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 . .
11 18
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
19
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








20
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-
23
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
Conception

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-

zation.

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

decision-making process.


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

Chapter IV.

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.


Methodology

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

related innovations.


Notes

Dorothy W. Nelson, "Carter's Merit Plan: A Good First
Step," 61 Judicature 105 (1977), p. 105.

2Ibid.

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,
1973).





15

5
Larry C. Berkson, "Judicial Selection in the United
States: A Special Report," 64 Judicature 176 (1980), p.
178.

6Ibid.

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.
8
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),
p. 3.

1Ibid.

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).
14
1Max Weber, On Law in Economy and Society (Cambridge,
Mass.: Harvard University Press, 1969).
15
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.
183.

1Max Weber, "Law, Rationalism and Capitalism," op. cit.,
p. 68.

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.
22
2Max Weber, "Law, Rationalism and Capitalism," op. cit.,
pp. 68-70.
23
23John Henry Merryman, The Civil Law Tradition (Stanford:
Stanford University Press, 1969), p. 36.
24
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
Republic.

26John C. Wahlke, et al., The Legislative System: Ex-
plorations in Legislative Behavior (New York: John Wiley
and Sons, 1962), pp. 7-17.
27
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,
1953).
33
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).














CHAPTER II
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

agenda.

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
2
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

determinative precedents.

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
8
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.
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
elected.
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
incumbent.
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
law.18

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

transcendence.

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

functions)."22

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

rationalized.24

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

this research.

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

with.

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
29
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.









Notes


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),
p. 2.

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,"
p. 53.

Ibid., p. 51.
10
Ibid., pp. 51-52.
11
Ibid., p. 56.
12
Ibid., pp. 57-58.
13
See John Henry Merryman, The Civil Law Tradition
(Stanford: Stanford University Press, 1969).
14
1David P. Conradt, The German Polity (New York:
Longman, 1982), p. 191.
15Ibid

1Ibid.

1Ibid.
17

18
Ibid., p. 192.
19Ibid.
Ibid.










2Ibid., p. 193.

2Schmidhauser, op. cit.
22
Ibid., pp. 239-240.
23
Ibid., pp. 241-242.

24Ibid., p. 241.
25
2Gerald Turkel, "Rational Law and Boundary Maintenance:
Legitimating the 1971 Lockheed Loan Guarantee," 15 Law and
Society Review 42 (1980-1981), p. 42.

26Ibid.

27Ludwig Wittgenstein, Tractatus Logico-philosophicus,
2nd ed. (New York: Free Press, 1971), p. 192.
28
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.
29
2The following chapter contains extensive references to
studies of the judicial role.













CHAPTER III
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

of authority.

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

illegitimate.3

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

elections.4

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-
11
tion election.

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-

ting process.

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
circuit courts.22

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

appellate courts.

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

program.

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-

tarian democrats.

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

appellate judges.

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-

tion process.28

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















Table I

Responses of Judges on Florida District
Courts of Appeal to Questions on Judicial Selection,
by Mode of Selection


Question:


Merit Selectees


Do you favor merit
selection of judges
on the appellate
courts?

Has the implementa-
tion of merit selec-
tion improved the
quality of judges
selected to the ap-
pellate courts?

Has the implementa-
tion of merit selec-
tion significantly
depoliticized the
selection process?

Does merit selection
provide the organized
bar with undue in-
fluence over the
judicial system?


YES

92%


(24) (2) (26)


78% 22%

(18) (5) (23)




65% 35%

(13) (7) (20)



25% 75%

(3) (9) (12)


YES NO N

69% 31%

(9) (4) (13)


55% 45%

(6) (5) (11)




17% 83%

(2) (10) (12)



13% 87%

(1) (7) (8)


Note: N varies over questions due to temporal constraints
of interviews.

*Includes judges selected by gubernatorial appointment and
non-partisan election.


Others*








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-

cess.

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

administrative behavior.

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.









Notes


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.
2
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.
176.

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.
59.

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.

13Ibid.

4Ibid., p. 35.

15Ibid.

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.
19
1Watson, op. cit., p. 59.
20
2Berkson, op. cit., p. 178.
21
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.
22
2Florida Constitution (Tallahassee: Office of the
Secretary of State, 1980), Article V, subsection 4(b).
23
2Anderson and Miller, op. cit., p. 168.
24
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-
ciation.






55


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.













CHAPTER IV
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

sketchy.

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
4
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-

tions.7

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
13
had enforcement experience. Furthermore, Jacob found

that gubernatorially and legislatively appointed judges

possess more formal education than judges selected by the

other methods.14

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





60


Table II

Selected Background Characteristics of Judges
on Florida District Courts of Appeal,
by Mode of Selection


Background variables:


Mode of Selection


1) Geographical origin:


Appointed
(n = 5)


Elected*
(n = 8)


Florida
Other
Rural
Urban


Merit Plan
(n = 26)


16
10
7
19


2) Sex


Male
Female


3) Race

Wh ite
Black


4) Prior Experience

Private practice
Other courts
Legislature
Public defender

5) Legal Education

University of Florida
Other Florida schools
Ivy League schools
Miscellaneous


*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-

tencing severity.

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







63

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

their analysis.

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

selection research.

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-

cruitment schemes.

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
27
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






66

Table III

Mode of Initial Selection of Judges on
Florida District Courts of Appeal,1981


Judge


1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.


Selection Mode


appointed by governor

11
ti
If


non-partisan election
ti
if
It
It

11


Tillman Pearson
Thomas H. Barkdull
Norman Hendry
Woodie Liles
Frank Hobson
William Owen
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
Melvin Orfinger
Leander J. Shaw, Jr.
Hugh H. Glickstein
Warren H. Cobb
Winifred L. Wentworth
Monterey Campbell
Daniel T. K. Hurley
Doublass B. Shivers
Winifred J. Sharp
Larry G. Smith
George W. Hersey
Joseph Nesbitt
Ford Thompson
Frank D. Upchurch, Jr.
Daniel Pearson
Natalie Baskin
Joe A. Cowart
James Joanos


Year
Selected

1957
1961
1961
1965
1965
1967
1972
1974
1976
1976
1976
1976
1976
1976
1973
1973
1973
1974
1975
1977
1977
1977
1978
1978
1978
1979
1979
1979
1979
1979
1979
1979
1979
1979
1979
1979
1979
1980
1980
1980
1980
1980
1980


merit selected
I"
II
"I
",
"I
II

It

"I
I"
11
II
It
"I

It
I!


II
It
II
11
It
It
II
It
I"
It


II
11








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
32
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

was unfounded.

Ducat and Flango call for a new research angle-

investigation of judicial selection as "one of a number of
34
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

extremely sparse.

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.


Notes

An excellent bibliography of judicial selection is
Nancy Chinn and Larry C. Berkson, Literature on Judicial
Selection (Chicago: American Judicature Society, 1980).
2
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
Science Association.









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-
documented.

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.
8
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);
pp. 178-180.
10
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.
13
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).
19
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

21Ibid.

2Atkins and Glick, op. cit.

2Ibid., pp. 445-446.
24
Ibid., p. 447.
25
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.
26
2Dubois, op. cit.

2Ibid., p. 13.

2Ibid., p. 47.
29
2Carbon and Berkson, op. cit.

3Ibid., pp. 21-40.

3Ibid., p. 24.
32
Joe Boyd, retained by 57% of the electorate.
33
Ducat and Flango, op. cit., p. 30.
34
Ibid., p. 31.
35
Ibid., pp. 26-27.

36"Integration" in this context refers to legally
prescribed membership in the state bar association for all
practicing attorneys.














CHAPTER V
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

literature:


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
role.

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

process."13

A more impressive empirical study of judicial role

orientations and behavior was conducted by James Gibson and
14
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
18
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
1119
. 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

elected courts?

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













Table IV

The Vocabulary of Judicial Role Orientations


Purposive Role

Law Interpreter

Law Maker

Adjudicator

Administrator

Peacekeeper

Task Performer

Policy Maker

Ritualist

Pragmatist

Constitutional
Defender

Trial Judge


Sector

G, GV, UB

G, GV, UB

G, V, UB

G, V, UB

UB

G

V

V

G


Decisional Role Sector

Law Interpreter V, GV, UB, W

Law Maker V, GV, UB, W

Eclectic W

Formalist G

Realist G

Pragmatist V, GV

Trial Judge UB

Mechanist G

Peacekeeper UB


Key: UB:
G:
V:
GV:
W:


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,
22
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

performer."32








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
39
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

Vines elaborates:


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

decision-making sector.

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
52
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

process.









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
59
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

decisional orientations.6

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-

searcher.

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

role orientations.

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

political science.

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

below.


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)




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