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In recent decades, state judi­cial selec­tion has become increas­ingly politi­cized, polar­ized, and domin­ated by special interests. In the face of these threats to state courts’ legit­im­acy and to the prom­ise of equal justice for all, it is time to rethink how we choose state court judges.

Intro­duc­tion

When most people think of the courts — or talk about judi­cial selec­tion — they focus on the federal courts, partic­u­larly the U.S. Supreme Court. But while federal courts get the most atten­tion, Amer­ic­ans are far more likely to find them­selves before state court judges. Ninety-five percent of all cases are filed in state court, with more than 100 million cases coming before nearly 30,000 state court judges each year. In recent years, state supreme courts have struck down tort reform legis­la­tion, ordered state legis­latures to equal­ize fund­ing for public schools,3 and declared a state’s death penalty uncon­sti­tu­tional.

Because state courts have a profound impact on the coun­try’s legal and policy land­scape, choos­ing state court judges is a consequen­tial decision. And, in recent decades, judi­cial selec­tion has become increas­ingly politi­cized, polar­ized, and domin­ated by special interests — partic­u­larly but not exclus­ively in the 39 states that use elec­tions to choose at least some of their judges. Grow­ing evid­ence suggests that these dynam­ics impact who is reach­ing the bench and how judges are decid­ing cases.

Pennsylvani­a’s 2015 supreme court elec­tion for three open seats exem­pli­fies many of the prob­lems with judi­cial selec­tion today. The elec­tion, which set a new spend­ing record for state supreme courts, was largely funded by busi­ness interests, labor unions, and plaintiffs’ lawyers — all groups that are regu­larly involved in cases before the court. Millions of dollars went into negat­ive ads that char­ac­ter­ized candid­ates as issu­ing “leni­ent sentences” and “fail­ing to protect women and chil­dren” — amid grow­ing evid­ence that such attacks make judges more likely to rule against crim­inal defend­ants.7 And, in a state where people of color make up more than 20 percent of the popu­la­tion,8 none of the 2015 candid­ates in the general elec­tion was a racial or ethnic minor­ity, and the Pennsylvania Supreme Court remains all-white.

Having monitored judi­cial elec­tions and other state court issues for almost two decades, the Bren­nan Center has chron­icled numer­ous threats to the fair­ness and integ­rity of state courts that are closely tied to how states choose their judges:

  • Outsized role of money in judi­cial elec­tions: A flood of special interest spend­ing in judi­cial elec­tions is under­min­ing the fair­ness of state courts. Judges regu­larly hear cases involving campaign support­ers, and, in one survey of state court judges, nearly half said they thought campaign contri­bu­tions affected judges’ decision-making.
  • Politi­ciz­a­tion of campaigns: Judi­cial campaigns have also become more overtly polit­ical, regu­larly includ­ing partisan language and state­ments on contested polit­ical issues such as gun rights or reli­gious liberty. For neut­ral arbit­ers, this heightened polit­ical temper­at­ure risks exacer­bat­ing pres­sures to decide cases based on polit­ical loyalty or expedi­ency, rather than on their under­stand­ing of the law.
  • Lack of judi­cial diversity: Neither elect­ive nor appoint­ive systems of choos­ing judges have led to a bench that repres­ents the diversity of the legal profes­sion or of the communit­ies that courts serve. Research suggests that diverse candid­ates face numer­ous chal­lenges in reach­ing the bench, from fundrais­ing diffi­culties, to inad­equate pipelines for recruit­ment, to bias, both expli­cit and impli­cit. The result­ing lack of diversity under­mines public confid­ence in the courts and creates a juris­pru­dence unin­formed by a broad range of exper­i­ence.
  • Job secur­ity concerns affect outcomes: A grow­ing empir­ical liter­at­ure suggests that in both elect­ive and appoint­ive systems, concerns about job secur­ity are affect­ing how judges rule in certain high-sali­ence cases, putting judi­cial impar­ti­al­ity at risk. Numer­ous stud­ies have found, for example, that when judges come closer to reelec­tion, they impose longer sentences on crim­inal defend­ants and are more likely to affirm death sentences. “Reselec­tion” pres­sures impact judges across the coun­try: In 47 states, judges must be elec­ted or reappoin­ted in order to hold onto their seats.

Recent efforts at reform have focused on either mitig­at­ing the role of money in elec­tions through public finan­cing and stronger recusal rules (which govern when judges must step aside from cases), or moving away from contested elec­tions alto­gether, typic­ally to a “merit selec­tion” system in which a nomin­at­ing commis­sion vets poten­tial candid­ates, who are then appoin­ted by the governor and later stand for peri­odic yes-or-no reten­tion elec­tions. But these reforms have failed to either gain trac­tion or to adequately address the chal­lenges facing courts today.

In the face of grow­ing threats to state courts’ legit­im­acy and to the prom­ise of equal justice for all, we need to rethink how we choose state court judges.

Identi­fy­ing the prob­lems facing state courts is only the first step. Any altern­at­ive system of choos­ing judges will have its own advant­ages and disad­vant­ages, and may advance or impede import­ant values related to the selec­tion of judges — includ­ing judi­cial inde­pend­ence, account­ab­il­ity and demo­cratic legit­im­acy, judi­cial qual­ity, public confid­ence in the courts, and diversity on the bench. Rethink­ing judi­cial selec­tion there­fore raises import­ant empir­ical ques­tions about the likely impact of differ­ent systems on these values. It also raises norm­at­ive ques­tions about how to balance these values when they come into tension. To make these judg­ments, we need to under­stand how differ­ent selec­tion systems actu­ally oper­ate today and what tradeoffs are posed by poten­tial altern­at­ives.

This paper offers a frame­work for consid­er­ing these import­ant ques­tions. Part I of the paper looks more closely at some of the prob­lems plaguing our state court systems today, many of which are closely linked to states’ systems for choos­ing judges. Part II discusses the basic values that judi­cial selec­tion should promote and describes what we know from exist­ing research about how differ­ent selec­tion systems impact these values. Part III suggests a series of unanswered ques­tions and other consid­er­a­tions that should inform inquir­ies into poten­tial reforms.