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Reforming State Judicial Selection

States must consider how to safeguard the independence of state courts

October 16, 2018

Cross-posted from Amer­ican Consti­tu­tion Soci­ety.

At a time when many people are concerned about the last­ing impact of the broken U.S. Supreme Court confirm­a­tion process, state supreme courts are facing their own legit­im­acy crisis. High-cost state supreme court elec­tions are increas­ingly the norm across the coun­try and place substan­tial pres­sure on judges to rule in favor of wealthy and power­ful interests when decid­ing cases. Similar pres­sures exist in states that use a polit­ical process to determ­ine only whether a sitting judge should serve an addi­tional term. With this in mind, the Bren­nan Center for Justice at NYU School of Law released Choos­ing State Judges: A Plan for Reform, a report urging states to depol­it­i­cize their systems for choos­ing judges to safe­guard public confid­ence in the courts. The culmin­a­tion of a three-year research project, the report calls for the replace­ment of state supreme court elec­tions with a publicly account­able appoint­ment system, and — regard­less of whether a state uses elec­tions or appoint­ments — the elim­in­a­tion of reselec­tion pres­sures by the adop­tion of a single, lengthy term for state supreme court justices.

The Bren­nan Center’s recom­mend­a­tions follow research show­ing that million-dollar judi­cial races are increas­ingly the norm, and dark money spend­ing — the source of which remains anonym­ous — flows freely in state supreme court elec­tions. During the 2015–2016 cycle, there were more $1 million-plus supreme court races than ever before. As a result, the number of states with sitting justices who had been through a $1 million race rose from seven in 1999 to 20 in 2017, when one-third of all elec­ted justices sitting on the bench had run in at least one $1 million race. And this spend­ing concerns both the public and judges them­selves: polls show that nearly 90 percent of voters believe that campaign cash affects courtroom decisions, and nearly half of state court judges believe the same.

And while debates about state judi­cial selec­tion often focus on how judges first reach the bench, how judges stay on the bench may pose the most substan­tial threat to judi­cial inde­pend­ence. Indeed, extens­ive evid­ence, includ­ing two reports by ACS, suggests that when sitting justices go through a polit­ical process to retain their posi­tion — elec­tion by voters or reappoint­ment by a governor — they respond to polit­ical pres­sures by ruling more often against crim­inal defend­ants and in favor of their donors and polit­ical party. As noted by retired Alabama Supreme Court Chief Justice Sue Bell Cobb, “Judges would have to be saints to ignore the polit­ical real­ity. And judges aren’t saints.”

States must consider how to safe­guard the inde­pend­ence of state courts, partic­u­larly as the new U.S. Supreme Court may make state courts increas­ingly essen­tial protect­ors of funda­mental rights. To that end, Choos­ing State Judges: A Plan for Reform outlines best prac­tices for states seek­ing to lessen the role of polit­ics in the select­ing, and reselect­ing, of judges:

  • 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, adop­ted by diverse stake­hold­ers, and include non-lawyers.
  • Justices should serve for a single, lengthy “one and done” term rather than face elec­tions or a polit­ical reappoint­ment process to retain their seats.

Even before a state under­takes a whole­sale shift in how it selects justices, there are steps states can take to mitig­ate the polit­ical pres­sures on courts, such as adopt­ing a more account­able process for interim appoint­ments, strength­en­ing rules for when judges must step aside from cases involving major campaign support­ers, and adopt­ing public finan­cing for judi­cial races.

State supreme courts already play a power­ful role in Amer­ican life. Ninety-five percent of all cases are filed in state courts, and state supreme courts are gener­ally the final word on inter­pret­ing state law. As a result, state courts are the courts the public is most likely to inter­act with, and are capable of having a profound impact on laws related to everything from repro­duct­ive rights, to envir­on­mental regu­la­tions, to partisan gerry­man­der­ing. The recom­mend­a­tions outlined in Choos­ing State Judges: A Plan for Reform can help states insu­late these decisions from polit­ical pres­sures and wealthy interests, and preserve the public’s confid­ence in them.

(Image: Getty)