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

October 11, 2018

Media Contact: Alexandra Ringe, alexandra.ringe@nyu.edu, 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.