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Press Release

Brennan Center Urges States to Abolish Elections for State Supreme Court Justices

New Brennan Center report lays out a vision for reforming how we select the nation’s state supreme court judges

October 11, 2018

Media Contact: Alex­an­dra Ringe, alex­an­, 646 925 8744

The U.S. Supreme Court isn’t the only insti­tu­tion roiled by a highly politi­cized judi­cial selec­tion process. In a new report, the Bren­nan Center calls for reform to state supreme courts, where high-cost elec­tions have become the norm.

The report, “Choos­ing State Judges: A Plan for Reform,” urges states to abol­ish elec­tions for state supreme court justices and instead adopt a trans­par­ent, publicly account­able appoint­ment process. It also calls for the adop­tion of a lengthy single term for state supreme court justices, along with other reforms designed to rein in the role of money and polit­ics in state courts.

“At a time when the broken process for confirm­ing justices to the U.S. Supreme Court is in sharp focus, safe­guard­ing state courts from inap­pro­pri­ate polit­ical pres­sure should be urgent busi­ness,” said Alicia Bannon, author of the report and deputy director of the Bren­nan Center’s Demo­cracy Program. “State judi­cial elec­tions used to be subdued affairs. No more. They are now awash in outside cash, dark money, and special interests that threaten the inde­pend­ence of the judi­ciary. It’s time to do away with supreme court elec­tions and move toward a more inde­pend­ent, more account­able process.”

As the Bren­nan Center’s research has shown, million-dollar campaigns for state supreme court seats are fast becom­ing the national norm. Dark, untrace­able funds are flood­ing judi­cial races, and national polit­ical groups and busi­ness interests regu­larly pour money into these campaigns. Bren­nan Center research shows that one third of all elec­ted state justices have been through at least one million-dollar race, and 90 percent of voters believe campaign cash affects judi­cial decision making.

The culmin­a­tion of a three-year research project, the Bren­nan Center’s latest policy report makes the follow­ing recom­mend­a­tions:

  • The 38 states that have elec­tions or reten­tion elec­tions for state supreme court justices should elim­in­ate them.
  • States should adopt a publicly account­able appoint­ment process where an inde­pend­ent, bipar­tisan commis­sion vets candid­ates and creates a short­l­ist for appoint­ment by the governor.
  • Those commis­sions should have trans­par­ent proced­ures and clear criteria for vetting candid­ates, and their member­ship should be bipar­tisan, appoin­ted by diverse stake­hold­ers, and include non-lawyers.
  • State justices should serve for a single, lengthy term rather than face elec­tions or a polit­ical reappoint­ment process to retain their seats.

“The voice of the people is crucial in help­ing determ­ine who sits on our courts,” said the Bren­nan Center’s Bannon. “But the research is clear: elec­tions and the money that pours through them under­mine judges’ abil­ity to perform their consti­tu­tional func­tions. Judges are meant to be inde­pend­ent arbit­ers of the law. Our propos­als help ensure they can do their jobs fairly and equit­ably.”

The Bren­nan Center’s new report outlines best prac­tices for states and lawmakers seek­ing to reform their court systems. It also lays out sugges­tions for how states that use elec­tions can mitig­ate the influ­ence of big money polit­ics, such as adopt­ing a more account­able process for interim appoint­ments; strength­en­ing recusal rules; and adopt­ing public finan­cing for judi­cial races, among other key reforms.