Judicial Selection for the 21st Century

June 6, 2016

Throughout American history, the process for selecting judges has greatly varied. With new and unique challenges in the 21st century, what selection methods best serves the needs of today?

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Introduction

Going back to the founding of the Republic, Americans have periodically had to rethink how state court judges were selected, balancing the twin ideals of judicial independence and judicial accountability. We began with the idea that governors and legislatures should choose. Then, concerned about capture of the courts by political elites, 19th century reformers posited that the people should choose via the ballot box. By the early 20th century, concerns about partisanship in elections led to the creation of merit selection — introducing a nonpartisan commission to screen for qualifications. Each of these selection systems continues today in at least some states. 

Now, at the start of the 21st century, the way we choose judges is raising a new set of challenges calling for 21st century solutions.

Over the past several decades, judicial selection has become increasingly politicized. We can trace this trend to the 1980s, when special interests from lawyers to corporations to politicians looked to the selection of state court judges and saw an opportunity to shape the courts to advance their goals. Rather than settle for a fair, impartial, and independent judiciary, they saw how easy it would be to mold a “friendly” one. 

We have witnessed this phenomenon most starkly in states that elect judges. Eighty-seven percent of state court judges face the voters in elections of one sort or another. And interest groups have figured out that investing in judicial races — often by funding ads urging voters to hold judges accountable for rulings in controversial cases — is an inexpensive way to shape policy: cheaper than lobbying, cheaper than supporting the campaigns of governors and state legislators. 

The judicial selection wars started as a competition between plaintiffs’ lawyers and business interests in a few states. Over time, as other interest groups joined in, money poured into more and more judicial races. From 2000-2009, state supreme court candidates raised $206.9 million, more than doubling the $83.3 million raised in the prior decade. This new surge of campaign cash, from lawyers and business interests mostly, fueled an escalating barrage of costly TV attack ads. 

Increasingly, judicial elections — once fairly tame — began to look like any other election, with ugly attack ads increasingly setting the tone. But politicized elections pose a real threat to the fairness and impartiality of the judiciary. Judges, after all, should not make promises to campaign contributors the way politicians do. Their job is to remain impartial: to decide cases based on the law and the facts. Legal scholar Roy Schotland was one of the first to sound the alarm in 1998. “The greatest current threat to judicial independence is the increasing politicization of judicial elections,” he warned. “They are becoming nastier, noisier, and costlier.”

Other factors have also fueled the explosive growth of money in judicial races. As a campaign consultant foresaw in “Justice for Sale,” a 1999 Frontline documentary that investigated whether the influx of campaign cash, then just a trickle, was corrupting the courts, “[y]ou’re just not a real candidate if you’re not on television.” TV ad buys cost money — as do pollsters, campaign staff and the other trappings of modern political campaigns. Moreover, in an increasingly deregulated campaign finance system, judges feel increased pressure to raise campaign war chests to fend off attacks from shadowy independent groups.

But where does a judge raise campaign funds? Two sources, primarily: lawyers who come before the court, and those with a stake in judicial outcomes. This comes at a cost. Americans believe overwhelmingly that campaign contributions affect judges’ decisions on the bench. Even judges themselves concede that raising money from lawyers and litigants has at least some influence. It’s hard to disagree with Theodore Olson, former Solicitor General and a prominent litigator, who argues: “The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today.”

The Brennan Center, in collaboration with its partner organizations Justice at Stake and the National Institute on Money in State Politics, has documented this growing politicization of judicial elections in biennial New Politics of Judicial Elections reports, which began with the 2000 campaign. Our data helped foster critically needed awareness. The national media, which once barely covered the state courts, has elevated the issue as a serious problem. Key stakeholders — including many prominent judges — have repeatedly and urgently called for a solution. Governors and legislators in at least a dozen states with judicial elections have proposed reforms. And reformers have worked tirelessly to advance these measures. 

But paradoxically, just as the conditions to advance reform could not be riper, there has been little progress. How can that be?

For the past 85 years, the gold standard for many in the reform community has been merit selection of judges, based on “the Missouri Plan” — named after the first state to adopt it. While the details vary from state to state, merit selection systems typically feature a nonpartisan commission of lawyers and non-lawyers that recruits and evaluates candidates for judgeships. The commission presents a slate of nominees to the governor, who then makes an appointment from that list. Most merit selection systems require appointed judges to periodically face voters in single-candidate retention elections in which voters are asked to decide whether the judge should remain on the bench. In other states, the governor or legislature decides whether to extend a judge’s tenure for another term.

From 1940 to 1994, 23 states implemented some version of merit selection, propelled by support from business interests and the bar. For the most part those systems have operated well. But since 1994, every attempt to expand merit selection to other states has fallen short. 

There have been many explanations for why merit selection reforms have not succeeded in recent years. Polls show Americans like to vote for their judges. And many are skeptical of a system ostensibly based on “merit.” Some key constituencies — unions, plaintiffs’ lawyers, and communities of color — voice concerns about the accountability of appointed, elite commissions, particularly when it comes to ensuring diversity. Meanwhile, some in the business community, which once played a major role in advancing merit selection, have raised their own objections to the fairness of commissions, claiming they are captured by plaintiffs’ lawyers. 

The interest groups opposing merit selection share one thing in common: They believe contested judicial elections can still work to their advantage. As a result, reformers who have sought to introduce merit selection systems have had difficulty building the broad-based coalitions needed to win. Significantly, many advocates of merit selection, recognizing this reality, have focused their energies on the narrower goal of fixing judicial elections.

Changing judicial selection typically requires amending a state constitution. And the process of amendment can be difficult: Reformers usually must obtain legislative approval, sometimes in more than one session, and then win a referendum before the voters. Over the past few decades, a number of reform measures have foundered at the legislative approval stage. But voters in five states — Ohio (1987), Nevada (1988 and 2010), Louisiana (1989), Florida (2000), and South Dakota (2004) — have rejected merit selection by wide margins.

Meanwhile, merit selection has problems of its own. It has not been immune to the political pressures that have corroded judicial elections. The critical vulnerability in merit selection systems is the requirement that judges be periodically reselected to keep their jobs. In eight of the 24 states with merit selection, judges must win approval from the governor or legislature to extend their tenure. In the remaining 16 merit selection states, judges run unopposed in retention elections where voters decide whether the jurist deserves another term. Judicial terms can be as short as four years.

Retention elections were intended to depoliticize judicial elections while giving the voters a say. For many years they attracted little interest, since elections without competition rarely excite voters. But partisans and special interests are figuring out how to game them too. The most recent New Politics report noted this emerging trend:

[I]n a handful of states, retention campaigns have become intense, high-profile, and expensive — frequently in response to a decision in a controversial case or when there is an opportunity to change the ideological composition of a court. Average per seat spending in retention elections in 2009-14 reflects a tenfold increase from the average over the previous eight years. Overall, nearly $6.5 million was spent on retention races in three states in 2013-14. Multi-million-dollar elections in Illinois and Tennessee were some of the most expensive and contentious races this cycle. The trend puts new pressures on judges who had previously been largely insulated from politicized judicial elections.

Not only has merit selection not been gaining ground, it has come under attack by politicians who either seek to weaken the independence of the commission process, or who wish to end merit selection altogether and choose judges through partisan elections or gubernatorial appointment. Since 2010 there have been efforts to weaken or eliminate merit selection in seven states — nearly a third of the 23 states that use it. Kansas recently eliminated merit selection for intermediate appellate judges, instituting a system of gubernatorial appointment with senate confirmation.

Given merit selection’s struggles, some reformers have looked instead for ways to improve judicial elections. In 2004, North Carolina was the first state to adopt a public financing scheme for judicial races, a reform that relieved judicial candidates of the need to raise money from special interests. The measure enjoyed bipartisan support and, by most reports, it worked well. Three additional states followed: New Mexico (2007), Wisconsin (2009), and West Virginia (2009). But the North Carolina and Wisconsin programs were later undone by hostile Republican legislatures. Since then, the momentum for public financing has stalled.

Recent Supreme Court cases, starting with Citizens United, have also shifted the terrain, expanding the role of shadowy independent groups whose untraceable spending on attack ads can dwarf the war chest of even the best-funded candidates. And the Court’s 2011 ruling in Arizona Free Enterprise Club v. Bennett killed a critical feature in public financing schemes — the trigger funds that protected publicly-financed candidates from being vastly outspent.

Reformers looking to improve judicial elections have also focused on voter education (promoting voter guides and judicial evaluation programs to give voters more meaningful information about judges and judicial candidates) and recusal reform (strengthening rules to require judges to step down from cases where their impartiality can be questioned — say, after receiving a large campaign contribution from a litigant). As long as states elect their judges, this is critically valuable work. But after a period of experimentation with improving judicial elections, it is worth asking whether fixing judicial elections is enough.

So it is time to ask: If judicial elections are now untenable, as many believe, can we revive (and improve) the Missouri Plan model to win the broad public support that has eluded it? Or, is it time to go back to the drawing board and develop a workable, winnable reform that meets the challenges of the 21st century? 

In addressing these questions, we should take our cue from history. In the 19th and 20th centuries, reformers devised a new way select judges. With a new set of challenges, what selection method can best serve the needs of the current century?

Judicial Selection For The 21st Century