Eighty-six percent of America’s judges must stand for election. Thirty-eight states conduct elections for their Supreme Courts (including partisan and non-partisan ballots, along with uncontested “retention elections” featuring up-or-down votes on an incumbent).1 Some of these states—like Alabama, Illinois, Michigan, Mississippi, Ohio, and Texas—are on their way to becoming perennial judicial battlegrounds where PACs, political parties, and special interests line up every other fall to elect judges who will pursue their narrow interests, not the public interest. Other states that elect judges have had an occasional taste of how bad things can get. A few states still enjoy court campaigns that are quiet and dignified.
But under the New Politics of Judicial Elections, none of these 38 states is safe. More special interests are targeting Supreme Court races. More judges find themselves trapped in a bad system, forced to raise money like ordinary politicians. More TV ads treat our courts of law like naked political prizes. Most of the public feels too ill informed to vote in judicial elections, leaving a vacuum that special interests are happy to fill. And in 2002, the U.S. Supreme Court made it easier for judicial candidates to announce their positions on hot-button issues, triggering a “New Dating Game” that gives special interests new powers to pressure judicial candidates— and tempts judicial candidates to pander to special interests or face their wrath.