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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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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?