Background:

There is little that is more integral to American governance than the justice system, and little that is more integral to the justice system than judges. Judges play a crucial role in the justice system, ruling on motions and the evidence can be presented at a trial, presiding over trials and either (a) determining the evidence a jury should hear or (b) deciding the outcome themselves, and, in most criminal cases, sentencing a convicted defendant. However, many judges at the state and local level—those judges who often hear a case initially and, for state supreme courts, tend to make final decisions—are still required to run in competitive and, often, partisan elections. Judicial elections are not the most pressing problem facing our justice system, but they are a critical problem that is often overlooked, and a problem for which there are numerous policy solutions. 

The History of Judicial Elections:

Before discussing modern examples of judicial elections’ problems and potential policies to fix them, I would like to briefly discuss their history. During the Constitutional Convention, it was established that members of the American federal judiciary would be appointed by the President and confirmed by the Senate for lifelong terms. Federal judges’ life terms were meant to reduce political pressure on them and increase their independence. However, Congress may still impeach and remove a judge whom they feel is not worthy to hold the bench, normally after a criminal conviction. Many states set up similar systems, and for the first half-century of the U.S.'s history, every state constitution provided for judges to be appointed. However, after the rise of Jacksonian populism, many Americans began to view the appointed judiciary as an unaccountable relic, and almost every state admitted after 1845 stated in its constitution that judges would be elected. This has proven, in recent history, to have a number of unintended consequences. Over the last several decades, and especially the last decade, judicial elections have become more polarizing, more costly, and less about experience and more about ideology than ever before. In this essay, I will provide several case studies showcasing why judicial elections are broken, and policy solutions to fix our process for selecting judges.

Case Studies:

West Virginia, 2004 and 2016:

One of the first judicial elections in recent history to devolve into a political fistfight was the 2004 election for the West Virginia Supreme Court of Appeals. Though this race attracted national attention for its nastiness, it quickly proved to be the tip of the iceberg for the politicization of the judiciary. Incumbent Justice Warren McGraw, a well-known and (by West Virginia standards) liberal Democrat, was challenged for reelection by conservative Republican attorney Brent Benjamin. During the campaign, mining businessman Don Blankenship, CEO of A.T. Massey Coal Company, donated over $3 million to Benjamin’s campaign through a political action committee (PAC). Presumably, Blankenship did this because he believed that Benjamin would be more supportive of his company than McGraw. He was correct; Benjamin won the election, and as a Justice of the West Virginia Supreme Court he voted for Blankenship’s company in the appeal of a massive civil lawsuit that involved it, Caperton v. A.T. Massey Coal Co. The plaintiff, Caperton, was understandably furious, and appealed to the U.S. Supreme Court, which agreed to hear the case. Writing for the Court, Justice Anthony Kennedy found that Benjamin’s conflict of interest was “so extreme” that his voting on the case was a violation of Caperton’s right to due process under the 14th Amendment. The West Virginia court reheard the case, and did end up voting for Blankenship’s company, but with a special justice replacing Benjamin. 

This entire situation was totally absurd, and could have been avoided entirely if not for the West Virginia Supreme Court being elected. The people of West Virginia, and every state, deserve a judiciary that is not bound by conflicts of interest, especially ones that involve one person with business before a court essentially installing a judge on that court’s bench. This story’s ending is a sad one for Benjamin, but also one for the people of West Virginia. Benjamin lost his 2016 reelection bid, finishing fourth and losing to fellow Republican Beth Walker. West Virginia business interests supported Walker, whom they considered more friendly to their interests. Justice Brent Benjamin had served his purpose, and his cronies tossed him out like a piece of old trash. Judges should not be politicians, and becoming a judge should not have the same process as becoming a member of Congress, or a Mayor, or Governor, or any political position. The fact that they have effectively been forced to become politicians in most of the United States is deeply troubling.

Ohio, 2020 and 2022:

While special interest groups playing a role in judicial elections has become more and more common over the last ten years, naked partisanship has also played a starring role. In theory, there should be little difference between a Democratic judge and a Republican judge; after all, the two are applying the same law. When a state has nonpartisan judicial elections, a voter cannot look at a ballot and identify who is a Democrat and who is a Republican. They are forced to research these candidates for themselves, or simply pick a name they are familiar with. Ohio provides a unique case study on the differences between nonpartisan and partisan judicial elections. In 2020, Democrat Jennifer Brunner, a former Ohio Secretary of State, ran for the Ohio Supreme Court against incumbent Republican Justice Judith French. Though French had won by 12 percentage points in her prior reelection bid, and her party’s presidential nominee, Donald Trump, won by 8 points on the same ballot, she lost to Brunner by over 10 points. This made Brunner one of only a few Ohio Democrats to win statewide in recent years–though with a large asterisk, since her party affiliation was not listed on the ballot. Instead, many Republican voters apparently recognized Brunner’s name from her tenure as Secretary of State and unsuccessful U.S. Senate campaign and, failing to remember that she is a Democrat, voted for her. Realizing their mistake, the Republican-dominated Ohio Legislature changed the state’s law to make judicial elections partisan, and Governor Mike DeWine signed the change into law. The bill was widely believed to be designed to give the GOP an advantage in the state’s judicial elections—and it worked.

Fresh off her 2020 victory, now-Justice Jennifer Brunner announced her bid for Chief Justice of the Ohio Supreme Court in the 2022 election a mere six months after taking office. She retained her name recognition from two years earlier and had more experience as a judge, but faced a new challenge: partisanship. The aforementioned bill to make Ohio judicial elections partisan became law shortly after Brunner announced her campaign, which was essentially doomed from the start in Republican-leaning Ohio. She faced Republican fellow Justice Sharon Kennedy in the November general election and lost by 13 points, a 23-point swing from her win a mere two years earlier. The people of Ohio were presented with the same Jennifer Brunner two years apart, and though they picked her to be on their Supreme Court when they did not know her party label they rejected her when they did. I do not doubt now-Chief Justice Kennedy’s qualifications or fitness for her role, but it is undeniable that she obtained her position partially because of partisanship. Becoming a judge, particularly a justice of a state’s highest court, should be based on merit alone—and judges should, above all else, not be politicians.

North Carolina, 2018 and 2020:

North Carolina is no stranger to competitive statewide judicial elections, and a perfect example of two pressing issues in modern judicial elections: state political parties playing partisan games, and judges essentially turning into politicians in robes. In 2018, the Republican-controlled North Carolina Legislature, frustrated with Democratic control of the state Supreme Court, made the same change Ohio would make a few years later and made their judicial elections partisan. However, the legislature overlooked a crucial part of the new law: while every candidate’s party affiliation would be on the ballot, the candidates would all run against each other in a single election, winner-take-all—a perfect recipe for vote-splitting. In the 2018 election for a seat on the Court, the North Carolina Democratic Party worked hard for its only candidate, civil rights attorney Anita Earls, while the North Carolina Republican Party lined up behind incumbent Justice Barbara Jackson. However, attorney Chris Anglin filed to run at the last minute. Anglin had been a registered Democrat until shortly before he filed to run for the Supreme Court and had no judicial experience; however, he was listed as a Republican on the ballot, guaranteeing that he would siphon off some votes that likely would have gone to Jackson otherwise. Anglin denied that he was a Democratic plant, but the North Carolina GOP disavowed him anyway. Earls ultimately won 49.6% of the vote to Jackson’s 34% and Anglin’s 16%, and because there was no runoff or requirement to obtain a majority of the vote, Earls promptly took her seat on the court. Earls likely would have won outright had Anglin not been in the race, as she would only have needed to win 0.5% more of the vote to win a majority. However, this was still an example of partisanship playing an outsized role in a judicial election, as opposed to the qualifications or merits of each candidate.

North Carolina has also recently provided examples of worrying trends in the judiciary: politicians becoming judges and judges becoming politicians. In 2020, former Republican State Senator Tamara Barringer, fresh off losing her 2018 bid for re-election, decided to try for a comeback on the state Supreme Court. She won by a narrow margin.. I do not doubt now-Justice Barringer’s qualifications, but her previous position was decidedly political, while her current one is decidedly not supposed to be. At the same time Barringer was elected to the Court, incumbent Chief Justice Cheri Beasley, a Democrat, was losing her reelection bid to fellow Justice Paul Newby by 413 votes. Beasley’s strong showing in that race inspired her to make the transition from a judge to a politician—which was far easier than it should be—and run for the U.S. Senate in 2022. She won the Democratic nomination in a landslide, but lost the general election by a narrow margin. Barringer’s transition from politician to judge, and Beasley’s from a judge to a political candidate, were both far easier than they should be. This is because judges are supposed to be neutral, and should not owe special interests too many favors or become involved in as many political fistfights as politicians.

Wisconsin, 2011, 2016, 2018, 2019, 2020 and 2023:

Wisconsin is the gold standard—or perhaps, considering how ignominious this distinction is, the pyrite standard—for broken judicial elections. Since 2011, this closely divided swing state has played host to a number of fiercely contested and bitterly partisan elections, although the state’s judicial elections are officially nonpartisan. I will not give a rundown of every race for the state Supreme Court in the last twelve years, but will focus on two—the first, in 2011, and the most recent, in 2023–that I believe are a representative sample of Wisconsin’s judicial elections. First, the 2011 race was expected to be a snoozer. Incumbent Justice David Prosser, Jr., was challenged by JoAnne Kloppenburg, a little-known career assistant in the Wisconsin Attorney General’s office. Initially, Prosser seemed set to romp to victory. However, the race soon became a battleground in the war between Wisconsin’s conservative Republican Governor, Scott Walker, and the state’s organized labor movement over a bill that would limit collective bargaining for public sector unions while raising their pension costs. Prosser was a close ally of Walker, and Kloppenburg quickly aligned herself with Wisconsin’s unions. The race turned bitter quickly, as a win by Kloppenburg would flip the court from a 4-3 conservative majority to a 4-3 liberal majority. Prosser’s own campaign chairman left his position and endorsed Kloppenburg, accusing Prosser of possessing “a disturbing distemper and lack of civility.” Ultimately, Prosser won by just over 7,000 votes, but this was just the opening salvo in an ongoing war between Wisconsin’s liberal and conservative factions for control of the state Supreme Court—a war that, unless the state’s laws and policies change, will not end anytime soon.

Twelve years after the Prosser-Kloppenburg race, Wisconsin voters are right back where they started. Today, conservatives still maintain a 4-3 majority on the court, but just like twelve years ago liberals have an opportunity to change that. At the moment I am writing this—6:41 p.m. PDT, April 4, 2023–the polls have closed for perhaps the most contentious, and certainly the most expensive, judicial election in the history of the United States of America. Wisconsin is an incredibly important swing state, whose Supreme Court’s decisions are of interest to the entire country, and this race has been high-stakes from the beginning. The liberal candidate, Milwaukee County Judge Janet Protasiewicz, and the conservative candidate, former Justice Dan Kelly, have traded partisan barbs for months while their campaigns various PACs flood the airwaves with millions of dollars in advertising.. As of today, more than $45 million has been spent by the candidates and various PACs supporting them. The issues of whether Protasiewicz or Kelly is more qualified or would make the better justice has been lost in the partisan melee, much as it has in every judicial election I have discussed. I do not know as of right now whether Janet Protasiewicz or Dan Kelly will be the Wisconsin Supreme Court’s next Justice, but I do know, and I will still know after this race has been called, that our judicial election system is broken and in need of serious reform.

Policy Solutions:

There are two pressing issues in judicial elections: special interest groups spending millions of dollars to install a judge who will support their causes, and many voters making decisions based on blind partisanship instead of which candidate would make the best judge. It is not truly possible to solve one of these problems, and not the other—they are joined at the hip. An easy solution to the problem of special interest groups influencing judicial elections would be to ban private donations and spending to judicial campaigns and make such campaigns publicly financed. This would prevent special interests from essentially buying judicial seats, but would not solve the problem of partisanship, as even in states with nonpartisan judicial elections state political parties could easily spread the word to their voters about which candidate(s) to support. Making judicial elections nonpartisan demonstrably does not eliminate partisanship. The ongoing race for the Wisconsin Supreme Court is nominally nonpartisan, but there is no doubt that Protasiewicz is a Democrat and Kelly is a Republican, and their parties have accordingly lined up behind them. To truly fix the problems posed by judicial elections, we must take a drastic step: end judicial elections entirely in the states that have them and replace them with merit-based appointment systems.

Judicial elections were implemented in the first place because they were a way to give the public more power over judicial decisions. However, they have only given special interests and partisans more power, and are far from the best method of choosing judges. One alternative method for selecting state-level judges, who typically deal with the types of hot-button issues that inspired multimillion-dollar campaigns, would be to use the method the federal system uses: in this case, the Governor nominating judges who are confirmed by the State Senate. This system would reduce how beholden judges are to special interests and state political parties, but could quickly become gridlocked if a Governorship and State Senate are controlled by different parties. This was demonstrated at the federal level in 2016, when Senate Republicans refused to hold a hearing for President Barack Obama’s liberal Supreme Court nominee, then-Judge Merrick Garland. An alternative system that would be less likely to become gridlocked would be forming a commission in each state to appoint judges to fill vacancies. If I had free rein to set up such a commission, I would want it to have four members, one appointed by the majority and one by the minority leaders of each house of the state legislature (or two by each leader in the case of Nebraska) in order to ensure partisan equity. The commission would be required to consider only the qualifications, experience, and suitability of each prospective judge to fulfill the positions they have applied for, and the commissioners would be required to be political Independents in order to maintain their independence from partisanship. I believe that this is the best possible solution for the problem of how to make selecting judges free of special interest lobbying and blatant partisanship, or at least reducing these factors massively. Judges play a massive role in our justice system, and though their jobs sometimes touch on political issues, they should not be politicians. If we as a country want a functioning and truly independent justice system, we must remember this simple concept: judges should not be politicians.

References:

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