For millions of Americans, finding a job is complicated enough without having to win over thousands of voters, raise millions of dollars, or be cherry picked by a special commission just to reach the interview. For aspiring members of one profession, however, those are just the start of the ever-shifting hurdles in the way.
The decidedly wonk-friendly issue of judicial selection had another moment in the sun last month. As New York barred elected judges from hearing cases involving campaign contributors, reforms and reform proposals were made in at least four other states.
In Indiana, Senators voted to reduce the number of elected judges, favoring appointments, while in Missouri, Republican State Senator Keven Engler filed a bill to do the same. Both moves were intended to reduce partisanship. In stark contrast, bills were also filed this month in Montana and North Carolina that would have judges not only run for election, but do so under party labels.
The issue of judicial selection has been under dispute since the Declaration of Independence. In colonial times, judges were chosen by the king, and for some time after the Revolution they remained appointed, albeit by politicians. This practice was at the time resented as elitist, and in a wave of enthusiasm for Jacksonian popular democracy, many states adopted judicial elections in the early 1800s. It quickly became apparent that elections had their own drawbacks, and the issue has remained unresolved ever since.
How do you hire a judge? It’s a thorny question—who, or what, can be trusted to pick someone who is supposed to be impartial between everyone? Across state judiciaries today, there are three widespread answers: partisan elections, nonpartisan elections and merit selection.
States like Texas, Louisiana and Alabama choose judges in partisan elections, putting the process in the hands of voters and political parties. Judges are elected with party labels on the ballot, candidates are typically chosen in partisan primaries, and they receive official endorsements and campaign contributions from party organizations.
Advocates of partisan elections say that they hold judges accountable to the people, and that party affiliation is an important piece of information for voters. As North Carolina State Senator Jerry Tillman (R) said to the Carolina Journal in defense of his proposals, “This gives voters a little something to go off. Does it tell them everything? No. But it tells them more than they know now.”
Opponents argue that partisan campaigns are inimical to impartial decision making, that voters are still too poorly equipped to choose between judicial candidates, and such public accountability comes at the expense of judicial independence. The most acute objections are concerned with the large and increasing amounts of money required to run in a partisan judicial election. Alabama, for example, runs the most expensive judicial elections in the country.
Dependence on donors can lead to doubts about impartiality. In 2009, a West Virginia Justice refused to recuse himself in an $82 million appeal case involving his largest supporter, the chief executive of Massey Energy, and provided the deciding vote in Massey Energy’s favor. The case was ultimately taken to U.S. Supreme Court, which found the justice should have recused himself, citing “serious risk of actual bias."
States like Mississippi, Washington and Wisconsin try to improve the process by choosing judges in nonpartisan elections, in which candidates are prohibited from running under party lines.
Supporters argue that nonpartisan elections depoliticize the process, removing loyalty to party organizations and to particular political constituencies. However, the extent to which these elections live up to their name is unclear. In many states, parties are not on the ballot, but they still make endorsements, donate funds, and are involved in candidate selection. Where partisan activity is more heavily restricted, rules are vulnerable to first amendment challenges: in 1999, a federal appeals court struck down a Californian ban on partisan endorsements in nonpartisan races, for example; and in Mississippi in 2002, a federal district judge struck down a ban on party contributions and endorsements.
Nonpartisan contests also suffer from voter apathy, with lower turnout than partisan elections; they remain highly expensive; and they still don’t guard against bias in cases involving large campaign donors.
States like Alaska, Iowa and Missouri try to minimize politicization by appointing their judges through an avowedly neutral process. Since the Missouri Plan was implemented in that state in 1940, many others have reverted to judicial selection by appointment. However, modern "merit selection" doesn’t resemble its post-revolutionary equivalent in key respects: governors, not lawmakers, make appointments; they choose from a shortlist compiled by a judicial selection commission; and at the end of their term, judges normally face a retention election, or, as in Connecticut, go through the appointment process again.
Proponents of merit selection argue that it provides the best mix of independence and accountability. The American Judicature Society, an organization that promotes merit selection, contends that the process seeks out better qualified judges, avoids scenarios in which lawyers have donated to the judge hearing their case, and stops the potentially compromising process of party politicking, fundraising and campaigning.
However, merit selection is not a panacea. Despite the use of judicial selection commissions, appointments and retention elections can still be politicized—Missouri has experienced a "court stacking" scandal, and in November, three Iowa Supreme Court Justices lost retention elections after ruling in favor of same-sex marriage. Appointed judges lose unopposed retention elections rarely, and the votes usually have very low turnout, leading to further complaints that the retention process does not truly hold judges accountable.
Detractors of merit selection have also noted that politics can compromise judicial selection commissions, arguing that selection commissions are subject to the arcane machinations of plaintiff and defense lawyers. The American Judicature Society concedes that studies of judicial nominating commissions “have shown that politics can play a part in both the selection of commission members and in their deliberations." Alaska’s commission recently survived a legal attack on similar grounds.
If one thing is clear, it is that every option is flawed. Many states mix systems, or use different systems for their appellate and trial courts. Others attempt to find a balance by modifying the process. In introducing recusal requirements, New York joins Washington, Oklahoma and Michigan. North Carolina and Wisconsin provide public financing for campaigns. And Texas has implemented separate campaign finance regulations for judicial elections. Some states use completely different systems – in South Carolina and Virginia, the state legislature chooses judges.
These constant and contrasting reform proposals across the country show no arrangement is perfect. Ultimately, faced with the question, “Is there a good way to choose a judge?” we might have to say, “No, but we’re doing the best we can.”