Eric D. Dixon
Earlier today, Slate ran an article about the debates now raging over whether judicial merit selection, popularly known as "The Missouri Plan," is a better method than elections for choosing judges. About two-thirds of the way through, the piece links to the study we released earlier this year addressing the subject:
Most Main Street businesses also seem uncertain about the would-be crusade against merit selection. In Greene County, the local chamber of commerce supported the switch to merit. Indeed, a 2007 Zogby poll showed that 71 percent of business executives supported merit selection. This presumably stems from a distaste for politicized courts and a preference for high-quality judges. In fact, the U.S. Chamber of Commerce's own survey of in-house corporate litigators shows that of the 20 states the chamber ranked as best for business, only two elect their high courts. In Missouri, a study from the conservative Show-Me Institute called merit selection "superior" for promoting free-market goals. "I must say that I find it really odd that business groups have gone off on this kick," the Manhattan Institute's Walter Olson wrote this summer.

We're always happy to receive coverage like this, but I was somewhat chagrined to find that this brief mention of our work manages to propagate two pet peeves that I've written about recently.

First, the Show-Me Institute is not a "conservative" think tank, a point I raised only three days ago in this blog. We've addressed that a few other times, as well. For some reason, people have the urge to place us toward one end of a bipolar political model, when the work we publish would fit comfortably into a wide swath of a more-useful biaxial model. (It just so happens, though, that almost everybody who wields political power — in D.C., at least — falls outside this swath.)

Labels aside, this mention of our study also fails to point out the qualifiers that the authors placed on their findings. Two weeks ago, we ran on our primary website an op-ed that I wrote about this tendency for those with a political agenda to trumpet findings they agree with while ignoring any provisos that place limits on those findings. From the piece:
The ways in which government institutions are structured have a tremendous effect on society at large. The mechanisms of the public sphere set benchmarks that radiate outward, influencing how people live, work, trade, and resolve their differences. For those of us who favor limited government and free markets, strong economic growth is one desirable side effect of public policy, but it’s not the only way to measure policy success — other metrics could tip the balance when choosing between proposals that each have evident value.

Supplementary studies might consider the extent to which a particular selection process promotes variables such as strong property rights, sensible limits on tort damages, or simple judicial accountability. People seriously considering the question of which judicial selection system would work best might place any number of factors higher than economic growth. Choosing outcome priorities for an entire legal system is an area in which people of good will can differ.

Determining the ideal structure for government institutions isn’t as simple as reading, say, the Declaration of Independence and extrapolating the principles of liberty it contains. No particular framework is implied by standard natural rights theories. If we want government to have a limited purview over the lives of the citizenry, we need to ensure that we have a robust system of checks and balances — but the exact ways in which we separate the powers of government can’t be derived from general principles. It takes hard work, observation, dialogue, and persuasion over time, and any one step in that process is not likely to provide a definitive answer.

The estimable Walter Olson, quoted in Slate right after the Show-Me Institute reference, essentially included one of those qualifications when he wrote about our study earlier this year, by including the nature of the study's source data:
Among other conclusions, Hall and Sobel noted that the states that did best on the U.S. Chamber of Commerce's 50-state rankings of state legal systems tend to be merit selection states.

This way, he highlights the study's conclusion while also acknowledging that the data it used approaches the subject from a particular angle. It's a useful and interesting angle, but — at the risk of repeating myself — other data could later provide a wider array of vantage points that ultimately reveal a more comprehensive glimpse at a complex subject.

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Eric Dixon

Eric D. Dixon