How to select state judges has been a recurring issue since the founding of the United States. Between 1946 and 2018, 23 of the 38 states that were using some form of popular election for their state supreme courts made significant changes to their methods of selection and/or retention.Footnote 1 The most common change was a switch to a yes–no referendum for retention of judges, what is known as a “retention election.” A total of 18 states switched to retention elections with 3 of those states continuing to use partisan elections for initial terms and the other 15 states relying on appointment for initial selection; 2 of the 15 had previously switched from partisan to nonpartisan elections.Footnote 2 Five additional states switched from partisan to nonpartisan elections. Overall, fifteen states entirely stopped using partisan elections for their supreme courts, six states abandoned nonpartisan elections, and one state abandoned any use of elections for its highest court between 1946 and 2018.Footnote 3 Many similar changes were made for lower level courts, although fewer states shifted away from partisan or nonpartisan elections. During this period, only two states that had stopped using partisan elections switched back:Footnote 4 Tennessee in 1974, from a system combining gubernatorial appointment with retention elections for its Supreme Court,Footnote 5 and North Carolina in 2016–2017 from nonpartisan elections.Footnote 6
In 1971 the Democratic-controlled Tennessee legislature passed a slightly modified version of what was called the Missouri Plan, after the state first that adopted it. The basic Missouri Plan consists of three elements: nomination by a screening body, usually referred to as a nominating commission; selection from the list of nominees by the governor; and periodic retention elections. Proponents of this system have dubbed it “merit selection.” Because that label has also been applied to nonelectoral systems that use a nominating commission to constrain the appointing authority, I will use the label Missouri Plan for systems incorporating the three core elements, including systems that include a requirement of some form of legislative confirmation of the governor’s choice.Footnote 7
In 1972, before any vacancies occurred on the Tennessee Supreme Court, a Republican, Winfield Dunn, was elected governor, and under the system adopted in 1971, he was to have the opportunity to appoint four justices prior to the 1974 election. This led the legislature, still controlled by the Democrats but without a veto-proof majority, to repeal the modified Missouri Plan as applied to the state’s Supreme Court, leaving it in place for the other two appellate courts. Not surprisingly, Dunn vetoed the repeal. He had also vetoed legislation creating a second state medical school, which would compete for resources with the existing medical school located in the governor’s hometown. The governor’s vetoes of both measures were eventually overridden as a result of a vote swap agreed to between the Democratic House speaker and a Republican representative from the district where the new medical school would be built.Footnote 8 Elections for the Tennessee Supreme Court reverted to partisan elections, with nominations made at party conventions.Footnote 9 As is discussed in Chapter 5, a further-modified version of the Missouri Plan was to be readopted in 1992. In 2014 the nomination requirement was dropped in response to a drive by conservative interests to again reinstitute partisan elections.
In the early 2000s, North Carolina changed judicial elections for most of its courts, including all appellate courts, from partisan to nonpartisan.Footnote 10 Then, in 2015, the North Carolina House of Representatives passed a bill that would have returned all judicial elections to the partisan format, complete with partisan primaries. However, the version passed by the state Senate and signed into law was more limited, applying only to elections for the Court of Appeals. Under the law that went into effect for the 2016 elections, candidates for that court were required “at the time of filing the notice of candidacy … [to] indicate on the notice of candidacy the political party recognized under Article 9 of this Chapter with which that candidate is affiliated or any unaffiliated status.”Footnote 11 The ballot for the Court of Appeals included the party affiliation information. If there were more than two candidates, a blanket primary (sometimes called a “jungle primary”) would be held, with all candidates regardless of party running together,Footnote 12 with the top two candidates going on to the general election.Footnote 13 As is discussed in Chapter 2, this change was to be only the first of a series of changes made over the next two years that returned all judicial elections for North Carolina state judges to partisan ballots.
Why would North Carolina switch back to partisan elections when the national pattern since 1946 had been to move away from partisan elections, with many states abandoning the use of any form of contested election? An examination of the political situation, and the later changes that were proposed and then enacted, makes it clear that the goal was to advantage Republican candidates for judgeships. In 2013, for the first time in more than a century, Republicans had gained control of the two “political” branches of the North Carolina government, winning both chambers of the legislature and the governorship. Over the next four years, North Carolina Republicans sought to solidify their control of state government: passing restrictive voting laws that targeted likely Democratic voters, gerrymandering congressional and legislative districts, abolishing public funding of some elections, and changing judicial elections in ways that they hoped would advantage Republican candidates. Even with the election of a Democratic governor in 2016, Republicans retained a veto-proof majority in both houses of the legislature, which allowed them to continue those efforts.Footnote 14
In contrast to developments in North Carolina and Tennessee, most of the changes to judicial selection in the post–World War II era seemingly had the goal of reducing the role of traditional politics, particularly partisan politics, in judicial selection and retention. One mechanism for this was the shift to nonpartisan elections. A more prominent mechanism was the adoption of constraints on who could be appointed to judicial positions by requiring potential appointees to be nominated by a screening body, the argument being that the focus of screening bodies would be on the candidates’ professional qualifications. The nominating commission is one of the central elements of the basic Missouri Plan, versions of which were adopted in fifteen states for some or all courts. However, the requirement of nomination by a screening commission was also added to systems that did not include all three elements of the Missouri Plan. Five states that did not use any form of popular election added a nominating commission to systems of gubernatorial appointment, sometimes in addition to a requirement of legislative confirmation and sometimes replacing such a requirement. South Carolina, where judges are elected by the legislature, added a requirement that the candidates for legislative election be nominated by a judicial merit selection commission. Seven states that continued to use popular elections for some or all courts added the requirement that the filling of interim vacancies by gubernatorial appointment be from a list of candidates nominated by a screening commission.Footnote 15
However, as becomes clear in several chapters of this book, changes that appear on their face to have the goal of reducing partisanship can be intended to preserve the power of one political party or group. For example, Georgia and Mississippi shifted to nonpartisan elections in the 1980s and the 1990s, and similar switches occurred in North Carolina and Arkansas during the first decade of the current century. These changes might have been intended to limit traditional political influences, or they might have been made to protect Democratic incumbents during the period when the one-party Democratic South was fading. As the various chapters show, this was clearly true in North Carolina and somewhat true in Arkansas, but not a major factor in Georgia or Mississippi.
One can also ask why changes did not occur in some states where they were proposed. For example, in 2007 the Quie Commission, reacting to the U.S. Supreme Court’s 2002 decision in Republican Party of Minnesota v. White,Footnote 16 advanced proposals to change Minnesota’s judicial selection system from one using nonpartisan elections to a Missouri Plan system.Footnote 17 Although the proposal received some positive attention in the Minnesota state legislature and strong support from several former governors, current and former members of the Minnesota Supreme Court, and former vice-president Walter Mondale, it was not adopted.Footnote 18 As is discussed in Chapter 13, at least part of the reason for this result was a lack of interest, if not outright opposition, from Republicans in the state legislature.Footnote 19 This opposition came at a time when the Republican Party was beginning to endorse candidates in Minnesota judicial elections, and it would seem reasonable to infer that at least some in the Republican Party believed that party-endorsed candidates would have a significant chance of defeating incumbents appointed by Democratic governors.
Outline of the Book
This book explores the broad question of the dynamics behind states changing how their judges are selected and retained. There are three primary subquestions:
(1) What are the goals of those seeking to alter how state judges are selected and retained?
(2) What explains the timing of changes that do occur?
(3) Why are some efforts successful and others unsuccessful?
To answer these questions, I examined all major changes in state judicial selection systems that occurred between 1980 and 2018, plus the unsuccessful efforts that got significant traction. The former include changes that occurred in 13 states and the latter include unsuccessful efforts in 11 states. Two states had both successful and unsuccessful efforts, which makes a total of 22 states that I considered.
In the balance of this first chapter, I explicate the theoretical framing that I began this study with, present a brief history of state judicial selection in the United States, and summarize the changes that were made and the changes that were proposed but failed to be enacted. The chapter concludes with a brief methodological note describing one measure that I use in many of the chapters and a brief discussion of sources.
The remainder of the book has three parts plus a concluding chapter. Part I consists of four chapters, each considering one of four states – North Carolina, Arkansas, West Virginia, and Tennessee – where the successful efforts to make major changes to judicial selection reflected clear partisan considerations. As some of those chapters show, the nature of the partisan interests was not always as straightforward as one might expect.
Part II consists of five chapters covering a total of seven states (Georgia, Mississippi, Utah, New Mexico, Connecticut, Rhode Island, and South Carolina) where the impetus for change came more from the legal subculture side of the divide. Sometimes the precipitating factor was scandal and at other times it was part of a broader effort aimed at modernizing the state’s judicial system. Importantly, even if the primary factor was not partisan advantage, there were often elements of partisanship involved.
Part III looks at unsuccessful efforts at change in a total of eleven states.Footnote 20 In eight of these states – Florida, South Dakota, Nevada, Ohio, Minnesota, Pennsylvania, Texas, and New Hampshire – the motivation was largely one of good government, although the opposition in some was clearly more partisan in its motivation. In two of these states – Florida and South Dakota – voters had previously approved a Missouri Plan for appellate courts, but then rejected that system for trial courts. In another two of the seven – Nevada and Ohio – voters rejected Missouri Plan proposals for some or all courts, three times in Nevada. In the three remaining states – Missouri, Kansas, and Oklahoma – efforts for change were precipitated by state Supreme Court decisions that came under attack by conservatives; in all three, the effort was to eliminate the role of a nominating commission that constrained governor’s choice of appellate judges. In Kansas, the legislature was able on its own to eliminate the nominating commission for the state’s intermediate appellate court, but in none of the three states was the legislature able to get the constitutional amendment on the ballot as is required to make a similar change for the courts that are beyond the direct control of the legislature.
The concluding chapter returns to examine the usefulness of my original organizing framework. I find that although the distinction between the legal and democratic subcultures carries some weight in the analysis, the case studies make clear that the politics of judicial selection/retention change are both more complex and subtler. The chapter also discusses two interesting phenomena that come out through the case studies. The first is that groups that were once inclined to be prime backers of systems limiting the role of the electorate and using nominating commissions to constrain whom governors (or legislators) could select for judgeships have switched positions and now tend to favor elections and disfavor the use of constraining nominating commissions. The second is the greater willingness of voters to support Missouri Plan systems for appellate courts than for trial courts. One could make the argument that it is the appellate judges, particularly state supreme court justices, who are the most involved in making policy and hence should be subject to accountability through elections; in contrast, most of the work of trial judges is highly routine and their decisions tend to be highly constrained by the law and are subject to at least one level of appellate review as a matter of right.
The last chapter ends with a report of the results of a brief survey asking respondents to rate the importance of fourteen characteristics, half related to political qualifications and half to professional qualifications, as considerations in who should be elected or selected to be state judges. Each respondent made separate ratings for trial court judges and justices of the state supreme court. The survey shows clearly that professional qualifications dominate over political qualifications – also this is less so for trial courts than for the state supreme court.
Legal and Democratic Subcultures: The Ever-Present Tension
In their 1970 book, Richard Richardson and Kenneth Vines distinguished between what they called the legal and democratic subcultures as important in understanding the courts. Their interest was in decision-making by the lower federal courts, and they sought to emphasize that “courts engage in some activities which are usually seen as legal and others which are commonly identified as political.”Footnote 21 The legal and democratic subcultures are, according to Richardson and Vines, aspects of the larger American political culture and involve fundamental orientations toward aspects of the judiciary including:Footnote 22
(1) cognitive orientations that concern knowledge of the judicial process and provide theories and concepts for intellectual mastery of the objects and processes in judicial institutions; (2) affective orientations that deal with the attitudes and feelings held toward judicial actors, roles, and policies of the federal courts; and (3) evaluative orientations that refer to opinions and judgments concerning various aspects of the judiciary.
Although Richardson and Vines were focused on the lower federal courts, these ideas apply with equal – and in some ways greater – force to the state courts at all levels.
In Richardson and Vines’s conceptualization, the legal subculture focuses on norms that seek to insulate judges from political pressures, calling on them to rely on legal texts, precedent, and the like in arriving at their decisions. This is part of what Charles Gardner Geyh labels the “legal culture paradigm.” In his words, “the legal community has a distinct culture,” the norms of which are inculcated in law school, entrenched in practice, and perpetuated on the bench” and “take the role of law as a constraint on judicial behavior seriously.”Footnote 23 The inculcation of these norms is a central part of American legal education. Law schools do not simply teach budding lawyers the content of the law, but rather to “think like a lawyer,” which includes “an appreciation of the pervasive indeterminacy inherent in the nature of an adversarial system in which opposing lawyers offer competing perspectives on applicable facts and law.”Footnote 24 Central to the legal subculture are the norms of judicial independence and judicial impartiality, but there is also a recognition that the personal values of a judge can influence the judge’s decision in situations of ambiguity subject to the law’s setting the “range of acceptable outcomes.”Footnote 25 These norms are reinforced by interaction with professional peers and by the nature of day-to-day legal practice that for most judges precedes going on the bench. The values and norms of the legal subculture appear in codes of behavior for judges and are advanced by groups such as bar associations, law schools, and associations of judges. Thus the legal subculture is closely tied to the professional world in which judges work, reflecting training, norms of analysis, and respect from professional peers. In the chapters that follow, I refer to the goal of “professionalism” or “legal professionalism” as reflecting the norms of the legal subculture.
The democratic subculture reflects the democratic values of representation and accountability. It is epitomized by the idea that the decisions of those holding government positions should reflect the ideals, goals, and needs of the electorate. Elections are the primary mechanism for achieving this. Federal judges are substantially insulated from democratic pressures because of life tenure. Although democratic values have always played some role in the process of selecting federal judges, particularly Supreme Court justices, those values today suffuse the selection process for most, if not all, Article III judges.Footnote 26 Even with the changes that have occurred in federal judicial selection, most states employ systems of selection and/or retention in which the democratic subculture plays a larger role than it does in the federal system.
Central to the democratic subculture is that judges should reflect the politics and policy preferences of the community in which they serve. By “politics,” I mean the partisan preferences of the community; that is, in constituencies that are strongly oriented toward one political party, the judges serving that constituency should generally come from that party, perhaps having served in other elective offices as members of that party even where judges are not selected through partisan elections. By “policy,” I mean views on specific policy issues, and that judges’ own views on those issues should generally accord with the majority view of their constituency. Thus, judges where there is strong support for the death penalty should themselves be supporters of the death penalty; judges in communities that support environmental concerns over property development should be supportive of environmental concerns. Although “politics” and “policy” are distinct, in early twenty-first-century United States, they are closely related. Thus, in the chapters that follow, I often equate the concerns of the democratic subculture with what I label “politics/policy.”
Clearly, the ideas of the legal and democratic subcultures have some similarities to the frequently discussed tension between the goals of independence versus accountability. This tension can be overstated because there are mechanisms of accountability beyond the traditional tools of reelection and reappointment. First and most obvious is the appellate process. Except for the U.S. Supreme Court and state supreme courts dealing with questions that are purely matters of state law, decisions of judges are subject to review on appeal.Footnote 27 A decision that departs from the law can be appealed and, if appealed, has a significant chance of being overturned. Even factual determination by trial judges has the potential of being overturned if the appellate court finds that the trial judge abused his or her discretion in finding the facts.Footnote 28 Except for decisions on the law based on the U.S. Constitution or on a state constitution, the legislature can change the law, both statutory and common law, as found by a court, although the change will generally not apply to parties in previously decided cases. Research shows that this is not infrequent at the federal level.Footnote 29 Modifying the law as determined on a constitutional basis is more difficult, although it does not always require a constitutional change; the legislature can revise or rewrite the offending law so that it passes constitutional muster.Footnote 30 For decisions based on state constitutions, changes to those constitutions are generally easier than those for the federal constitution, and in nineteen states may be initiated by citizen petitions.Footnote 31
A second form of accountability arises through judges’ concerns about their reputations among what Lawrence Baum refers to as their audiences.Footnote 32 One such audience is their colleagues on the bench.Footnote 33 A particularly important subgroup of colleagues in trial courts may be those with administrative responsibilities that include assignment to courthouses and courtrooms, calendar allocations (i.e., the type or types of cases a judge handles), and the distribution of support personnel.Footnote 34 A second is the broader legal profession, including practicing lawyers, legal academics, and judges of other courts.Footnote 35 A third is the broader public, regardless of whether a judge is concerned about reelection or reappointment.Footnote 36 Judges are no different than other people in their desire for respect and esteem, and this desire serves as a form of accountability outside the processes through which political or democratic accountability function.
A third, but more marginal mechanism of accountability, consists of the various procedures for judicial discipline.Footnote 37 In all states except Hawaii and Oregon,Footnote 38 the legislature has one or more mechanisms through which it can remove a judge from office. These mechanisms are not confined to impeachment, which typically requires the legislature finding that the offending judge has engaged in something akin to “high crimes and misdemeanors.” There are also procedures that allow the removal of a judge without legislative action, typically through a disciplinary body, often with a final decision by the state supreme court.Footnote 39 A prominent example of the latter was the removal or suspension of Alabama Chief Justice Roy Moore twice, once in 2003 over his refusal to remove a Ten Commandments monument and again in 2016 after he ordered the state’s probate judges to disregard the U.S. Supreme Court’s decision in Obergefell v. HodgesFootnote 40 and to refuse to issue marriage licenses to same-sex couples.Footnote 41 Disciplinary processes can also lead to reprimands, either private or public, or short-term suspensions, all of which would be embarrassing to most judges. The result is that judges almost always seek to keep their behavior within the bounds of the state’s judicial code of conduct.
Although the goals of independence and accountability are subsumed by the two subcultures, the subcultures go beyond the independence-versus-accountability dichotomy to include a range of elements. These include the nature of qualifications judges should bring to their work, the nature of the values they should bring, and the appropriate role for various players in the judicial selection and retention process. As one example, what role, if any, should be played by judicial evaluation commissions in decisions concerning judicial retention and what qualifications should members of those commissions have? The legal subculture would expect such commissions to play an important role and expect that the members of the commission should largely be persons acculturated into the norms of the legal subculture. In contrast, the democratic subculture would see little role for such commissions, and if there were such commissions, would believe that the membership should be dominated by elected officials or their surrogates.
In a 2017 review essay of studies of state supreme court elections, Baum adopted the terms “values” and “interests” to refer to concepts very similar to what Richardson and Vines labeled the “legal” and “democratic” subcultures. Baum refers to values and interests as two distinct sets of motivations. In his words, the values motivation “is an effort to improve the performance of the courts, primarily by fostering what advocates view as desirable forms and degrees of accountability.” In contrast, the interests motivation “is an effort to advance the political and policy goals of the participants.”Footnote 42 I will use the subculture labels or the terms “political/policy” and “professionalism” rather than Baum’s two labels for what he calls “motivations.”
As suggested above, the tension between the legal and democratic subcultures is greater for state-level judiciaries than for the federal judiciary, due to the differences in the systems of selection and tenure in office. Federal Article III judges are never subject to reappointment or reelection. The only state whose judges have life tenure is Rhode Island; in New Hampshire and Massachusetts, judges serve without reappointment or reelection until reaching the mandatory retirement age of 70, and in New Jersey after an initial reappointment, judges serve until mandatory retirement at age 70. In the other forty-six states, judges are subject to a retention process involving either reappointment or some form of election.
In some states, the precise nature of selection and retention processes varies depending on the level of court involved, and in a small number of states the nature of these processes for trial-level courts varies geographically within the state. The length of terms judges serve varies between 4 and 14 years, and in states with both long terms and mandatory retirement, such as the 14 years for judges of New York’s highest court (called the Court of Appeals) with mandatory retirement at age 70, many judges may be selected but may never actually face a retention process. Many judges in states with mandatory retirement who were previously retained do not face future retention if their current term expires after they reach the mandatory retirement age.Footnote 43
The nature of the selection and retention process varies greatly among the 50 states.Footnote 44 Some form of popular election is the method used to select and/or retain some or all judges in 39 of the 50 states. In 15 of these states, judges of some or all courts are always initially appointed, most after being nominated by a screening commission. However, even if the state constitution specifies election as the means of selecting (as distinct from retaining) judges, interim vacancies are filled by appointment, almost always by the governor; in all but two states (Arkansas and Louisiana), those appointed to fill a vacancy can then run in the subsequent election to keep their positions. In nine states, the executive makes initial appointments of the judges of some or all courts, with reappointment in those states either by the governor or by some other body. In two states, Virginia, and South Carolina, the legislature selects and reappoints (retains) judges, which essentially means the members of the legislature elect the judges. The previous paragraphs only capture the broad methods of selection and retention; there are many variations, including whether some type of legislative confirmation is required for gubernatorial appointees; the process for retention in states without elections; the type of contested election (partisan, nonpartisan, or “hybrid”Footnote 45); timing of elections; geographic scope of elections for appellate judges; plurality, majority, or supermajority requirement for election or retention; partisan or blanket primaries in states using partisan general elections; term length; single or multiple seat elections;Footnote 46 presence of a straight-ticket option in partisan elections; and whether incumbency is indicated on the ballot.Footnote 47
In his review essay of studies of judicial elections, Baum asserts that “although values typically dominate public discourse about alternative selection systems, on the whole interests play a more powerful part in determining the outcomes of debates over these systems.”Footnote 48 Although it is true that “all the competing systems in the states give central roles in the selection process to people in the political sector (the chief executive, legislators, and the general public) as distinguished from the legal sector (lawyers and judges),”Footnote 49 this does not mean that all systems place equal weight on the two sectors or that the political sector, with its interests and motivations, always plays a more powerful role when selection systems are modified. One way to view the central question addressed in this book is whether Baum is correct: Has “interests”/the democratic subculture been dominant over the “values”/the legal subculture in debates over the methods of judicial selection and retention? As I discuss in the concluding chapter, over the period from 1980 through 2018, there has been a shift, with the legal subculture dominating through 1999 and the democratic subculture dominating between 2000 and 2018. A closely related question is: When does one motivation or subculture succeed and the other fail in efforts to change or block changes to selection/retention systems? These questions are explored throughout the chapters in this book.
A Brief History of Judicial Selection in the United StatesFootnote 50
The history of judicial selection in the United States has been told many times.Footnote 51 In this section I provide a short version of that history to set the context for later chapters.
Selecting State Judges in the Earliest Years of the Republic
In the early years of the United States’ independence from England, almost all judges were either appointed by the executive or elected by the legislature. The one exception was Vermont, which under its 1777 constitution called for the “freemen in each county” to choose judges for many of the nascent state’s lower courts;Footnote 52 however, Vermont abandoned popular elections nine years later in favor of legislative elections.Footnote 53 Some states adopted life tenure (“on good behavior”) for judges, with others limiting the tenure to fixed terms as short as one year.Footnote 54 Retention in the absence of life tenure was either by reappointment or reelection by the legislature.
The Move to Judicial Elections
Judicial elections began to reappear early in the nineteenth century. Georgia provided for the popular election of some judges in 1812, followed by Indiana in 1816.Footnote 55 However, the popular election of state judges was largely a development of the middle third of the nineteenth century.Footnote 56 Mississippi adopted elections in 1832,Footnote 57 and elections were adopted for some trial courts in Georgia in 1835 and in Michigan in 1836.Footnote 58 However, it would be another ten years before any other states made this move. In fact, between 1834 and 1845, nine states held state constitutional conventions, but failed to change to elections for the selection and retention of judges. Over a 14-year period starting in 1846, 17 states, led by New York, held constitutional conventions, and all but 2 of those states adopted judicial elections. Another 8 states amended their constitutions to allow for judicial elections for some or all courts.Footnote 59 Overall, 12 states switched to elections for all judges, with another 5 adopting elections for at least some judges. By 1860, elections were being used to select some or all judges in 23 of the then 31 states.Footnote 60
Because judicial elections began to be adopted during the period associated with Jacksonian democracy, some historians have suggested that the move to elections was intended to increase the accountability of judges. The shift to elections was, in the words of Willard Hurst, “one phase of the general swing toward broadened suffrage and broader popular control of public office which Jacksonian Democracy built on the foundations laid by Jefferson.”Footnote 61 In this view, a central goal in moving from appointment to elections was to increase judges’ accountability to the electorate.
Selecting judges through election puts front and center the tension between judicial independence and judicial accountability,Footnote 62 or, in the terms used above, the tension between the legal and democratic subcultures. It seems logical to view the goal of the shift to elections, coming in the wake of the height of Jacksonian democracy, to be to shift the balance in the direction of accountability and the democratic subculture.Footnote 63 However, Shugerman and others argue that the move to elections reflected a goal of increasing judicial independence, although the independence that was sought was from politicians rather than from voters.Footnote 64 In these authors’ view, it was discontent over judges essentially doing the bidding of the elected officials who appointed them that led to the adoption of elections. The reformers believed that elections would separate judges from the other elected officials because the judges would have their own constituencies, and those constituencies would reward judges for acting independently.
Because of the need to keep the courts operating, it was not possible to eliminate appointments completely. Under the system of electing judges, it became common for an elected official, usually the governor, to be empowered to fill judicial vacancies, with the appointee holding office at least until the next election. Not surprisingly, judges appointed to fill vacancies usually would then run for the office they had been appointed to fill on a temporary basis. Regardless of whether an election involved a previously elected incumbent, an incumbent appointed to fill a vacancy that had occurred since the previous election, or an open seat, the candidates were generally highly dependent on the party leaders who played a central role in mid-nineteenth-century elections.
Until the last two decades of the nineteenth century, the mechanics of elections looked very different than what contemporary voters have come to expect. Voting machines did not exist and there were no “official” ballots listing officially nominated candidates. Voters indicated their choices on plain pieces of paper and placed those ballots into a ballot box sitting out in public. Because of the number of offices to be filled, voters often did not know much about the candidates for many of the offices on the ballot and the absence of official ballots meant that there were no cues, such as party labels, for voters. A common practice was for party leaders to prepare preprinted ballots listing the party’s chosen candidates for party workers to distribute to party supporters, who could deposit the preprinted ballots it in the ballot box. If there were judicial offices to be filled, the party’s candidates for those offices would be included on the preprinted ballot. Political machines often went one step further, printing their ballots on a distinct color of paper so that party officials monitoring the polling place could observe the color of the ballot those believed to be their supporters had deposited in the ballot box. Some party bosses would bring their supporters to the polls in groups, distribute the preprinted ballots, and march their voters to the ballot box while the voters held the colored ballots aloft.Footnote 65 With this device, the bosses knew whom to reward for party loyalty and whom to punish for defection. Significantly, this was also before the development of party primaries, which meant that party leaders substantially controlled the nomination of candidates made at party conventions. The result was that party leaders, who were often also the elected officials who would choose whom to appoint as interim judges or who would have appointed judges prior to the shift to elections, had substantial control of who was a candidate for judicial office, thus undercutting the goal of increasing judges’ independence from other politicians.
Most judicial elections then and now are conducted simultaneously with elections for other offices. Some states tried to reduce the influence of political parties by scheduling judicial elections at times apart from other elections.Footnote 66 At least some of those efforts were short-lived due to cost and lack of participation. One state that has done this throughout its existence is Wisconsin; that separation was required under the state’s first constitution. Wisconsin’s judicial elections initially occurred in September but subsequently moved to April, which is when they take place today, along with elections for other nonpartisan state and local offices.Footnote 67
The nature of elections changed after 1884 with the introduction of the Australian ballot, the preprinted, official ballot marked in private that is standard today. The adoption of the Australian ballot was very rapid, with 39 of 45 states using them by 1896.Footnote 68 The use of such ballots reduced the control of party leaders. With the official, preprinted ballot it became easy for voters to split their votes among candidates of different parties, or alternatively to choose not to vote for some offices on the ballot. This was to some extent encouraged in states using the Australian format of the preprinted ballot, today referred to as the “office block” format; this type of ballot is organized so that all candidates for a specific office are listed in a single block in one column.Footnote 69 Many states opted instead for the “party-column” format, which lists candidates for all offices from a particular party in a single column. This latter format makes it easy to provide a single circle or box at the top of the column, which a voter can mark to indicate a “straight-ticket” vote – a vote for all the candidates of the indicated party.Footnote 70 Regardless of which form a state chose to use, there was no easy way for party leaders to monitor the action of individual voters as had possible prior to the adoption of preprinted, official ballots. However, the process of making official nominations to put candidates on the ballot meant that parties continued to play a central role in the election process.
The Development of Nonpartisan Elections
The ability to have a system of formally nonpartisan elections was one of the major impacts of the Australian ballot. With the official ballot, the option was now available to make elections formally nonpartisan by listing candidates on the official ballot without party designations. This did not necessarily eliminate the parties’ role as nominators or as active participants in the election campaign. It did, however, generally dampen partisan patterns in voting. In the early years of the twentieth century, states began adopting nonpartisan elections for a range of offices.
Some of the earliest offices for which nonpartisan ballots were adopted were judgeships.Footnote 71 The first state to do so was Washington in 1907,Footnote 72 with eight others following by 1920.Footnote 73 By 1945, fifteen states, all in the Midwest and West, had adopted nonpartisan elections for the members of their state supreme courts.Footnote 74 The goal of adopting nonpartisan judicial elections was to increase the independence of judges by preventing capture by “ideology and special interests.”Footnote 75 Although the use of nonpartisan elections did dampen partisanship, it quickly became evident that the proponents of nonpartisan elections held overly optimistic views of the electorate, which had lost its single most important voting cue: a candidate’s political party.
The absence of party labels on the ballot led many voters to rely on cues based on the candidates’ names. This was clearly evident in the quirky nature of some election results in which voters relied on mistaken name recognition. A clear example of this occurred in Washington in 1990 when Chief Justice Keith Callow ran for reelection to the Washington Supreme Court. An unknown local lawyer, believing that no election should go uncontested, entered the contest. Much to the challenger’s surprise, to say nothing of the incumbent’s shock and the surprise of the legal establishment in Washington, the challenger won.Footnote 76 The unknown lawyer who defeated Justice Callow was named Charles W. Johnson. There were at the time three relatively well-known Charles Johnsons in the state: a Tacoma television news anchor, a superior court judge, and a former sergeant-at-arms in the state senate. Presumably, many voters mistook Charles W. Johnson for one of these other Charles Johnsons.Footnote 77
Ohio is an interesting state to look at regarding the role of name recognition in the absence of partisan labels on the ballot. In Ohio candidates for the state Supreme Court seek nominations through party primaries, but no party labels appear on the general election ballot. Moreover, in Ohio, there are some family names that have, or at one time had, strong partisan linkages. The most prominent such name is “Taft”;Footnote 78 one might almost say that t-a-f-t is an alternate spelling for “Republican” in Ohio. Even in the absence of party labels, a Taft running for the Ohio Supreme Court produces a strong partisan voting pattern. There is at least one example in Ohio of how name recognition without party labels on the ballot can cause serious confusion. A second name that at one time had a strong association with the Republican Party was “Brown.”Footnote 79 In 1970, Democrat Allen Brown ran against Republican J. J. P. Corrigan; “Corrigan” was a name moderately associated with the Democratic Party, in part because of its Irish origins. The voting pattern in this election had counties that leaned Republican voting more strongly for Brown and counties that leaned Democratic voting more strongly for Corrigan than would normally be expected.
The search for alternate cues and the resulting name confusion was not the only result that can be associated with the adoption of nonpartisan elections. Voter participation declined,Footnote 80 fewer incumbents were turned out of office, and independence did increase, but not necessarily in the way reformers had hoped. However, as incumbents became more secure, an increasing number of judges initially obtained their offices by appointment, because of the power of governors in most states to fill midterm vacancies. Not surprisingly, governors regularly used these positions as a source of patronage, filling vacancies with supporters who were likely to reflect the policy preferences of the governors who appointed them.
Although adoption of nonpartisan ballots in southern and border states did not start until the 1970s,Footnote 81 judicial elections in most southern states were effectively nonpartisan. Nine of the eleven states that were part of the Confederacy employed formally partisan elections prior to the first switch in 1971.Footnote 82 As described by V. O. Key in his classic work, Southern Politics,Footnote 83 for the most part the Democratic Party was the only game in town for state politics, and for most local politics as well. The result was that the Democratic Party primary decided most elections, including judicial elections. This meant that nonpartisan elections for state and local offices, including judgeships, effectively existed in most areas of the South and in many border states because the Democratic primary, sometimes with a runoff, determined the election outcome. Kermit Hall argued that the effect of the southern one-party system was to increase the independence of the appellate judiciary in the South, consequently decreasing its accountability to the electorate.Footnote 84
The Development and Adoption of the Missouri Plan
Even with the elimination of political parties as formal players in judicial elections, elements of what could be labeled the “legal subculture” sought to end direct elections as methods of selecting and/or retaining judges or, failing that, to further limit the role of elections in the judicial selection and retention process. The ideal solution for many proponents of further change was to move to a “short ballot” system whereby only a small number of offices would be filled by election; most of the offices subject to elections, including judgeships, would then be filled by appointment. However, popular sentiment favored elections, as is the case still today.Footnote 85
To solve the problem of retaining a role for the electorate, Northwestern University law professor Albert Kales devised a plan that included what we today call “retention elections.” Under Kales’s 1914 plan,Footnote 86 the state’s chief justice would be the only judge directly elected by the voters. Nominations for other judgeships would be made by a judicial council consisting of presiding judges, with the elected chief justice then making appointments from among the persons nominated by the judicial council; neither the governor nor the legislature would have any role in judicial selection. After a probationary period of two or three years, the judge would stand in a noncompetitive election in the form of a yes–no referendum on whether the judge should retain his office (all judges at this time were male). If retained in office, the judge would serve a full term and then could stand for retention for another term. This would continue until the judge chose not to run, reached mandatory retirement age, resigned for other reasons, was removed from office through some disciplinary procedure, or died.Footnote 87 The retention election was included to mollify the electorate and to create at least an appearance of accountability.Footnote 88 The expectation of Kales and others who advocated for a system along these lines was that the accountability was to be a matter of competence and not related to the judges’ decisional propensities.
Although several variants of Kales’s plan were advanced,Footnote 89 it was not until 1934 that any state adopted a system with some of the innovations Kales had proposed. That year, California adopted a system for its appellate courts, still in use, under which the governor nominates a candidate for a vacant or soon-to-be-vacated judgeship. If the judgeship is then vacant, the nominee is presented to the Commission on Judicial Appointments (consisting of the chief justice, the attorney general, and a presiding judge from the Court of Appeals) for approval, and if approved the nominee assumes office; the judge or justice then stands for retention the next time judicial elections are held. If the current incumbent for the judgeship is still in office but has decided not to run for another term, the nominee is placed on the ballot at the next election and, if successful, takes office upon the expiration of the incumbent’s term. In either situation, the candidate runs without opposition, and the electorate is asked to vote yes or no on the question, “For [office—e.g., Associate Justice of the Supreme Court] shall XXXX be elected to the office for term provided by law?” If the judge currently holds the office, the judge’s title is included with his name (e.g., “… shall Associate Justice XXXX be elected … ?”).Footnote 90 Unlike Kales’s plan or methods used in most states that subsequently adopted plans derived from what Kales proposed, the California system does not limit the governor’s choice by restricting that choice to a candidate nominated by a required screening commission.
In 1940, Missouri adopted the second system derived from Kales’s model.Footnote 91 Under Missouri’s Nonpartisan Court Plan, or the “Missouri Plan” as it came to be called, a nominating commission consisting of a mix of lawyers selected by the bar, lay persons selected by the governor, and one judge screens potential nominees. The commission then forwards three names to the governor, who has sixty days to make a selection from that list; if the governor fails to act, the nominating commission then makes a selection.Footnote 92 The selected person serves for one year and then stands for election on the question, “Shall Judge XXX be retained in office?” At the end of each subsequent term, the judge stands again for retention.Footnote 93 The next state to adopt a Missouri Plan type system was Kansas in the late 1950s; the system applied only to positions on the Kansas Supreme Court.Footnote 94 Subsequently fourteen states have adopted some version of the Missouri Plan involving nominating commissions, gubernatorial appointment, and retention elections for some or all of their courts; no state has adopted or extended the use of this system since 1994 when Tennessee extended it to justices of its Supreme Court,Footnote 95 although there has been at least one local adoption of a Missouri Plan system where a local option exists.Footnote 96
In the late 1950s, proponents of the Missouri Plan dubbed it “merit selection.”Footnote 97 The argument of the proponents is that the screening by a nominating commission improves the quality of those appointed to the bench. It is likely that labeling the system “merit selection” contributed to its adoption in many of the states that switched to that system. However, the extensive academic literature comparing the judges under different selection systems dating back 50 yearsFootnote 98 has found little or no systematic evidence that judges selected using a nominating commission are better than those either appointed without the use of such a commission or directly elected by the voters,Footnote 99 although there is good evidence that the system of retention can influence directly or indirectly the decisions judges make.Footnote 100
Although retention elections are generally associated with the Missouri Plan, that need not be the case, as was true with the first adoption of retention elections by California in the 1930s. In additional to California, there are three other variants in how retention elections are used without a Missouri Plan type nominating commission. First, two states using nonpartisan elections adopted a provision whereby if an incumbent was unopposed for election, the election reverted to a retention format. Montana adopted this practice in 1973, and Utah had it starting in 1967, lasting until it switched to a complete Missouri Plan system in 1985.Footnote 101 The second variant combines a partisan election for an initial term with retention elections for subsequent terms; this system has been adopted in Illinois (1964), New Mexico (1988), and Pennsylvania (1968). Third, Kansas in 2013 and Tennessee in 2016 adopted systems for some courts that combined retention elections with gubernatorial appointment without a merit-based nominating commission but with legislative confirmation.Footnote 102 To avoid confusion I use the label “retention elections” to refer to any system using yes–no referenda to retain (or in California to sometimes confirm) judges. I reserve the term “Missouri Plan” for systems with the three elements of (1) a mandatory nominating commission, (2) gubernatorial appointment from among those nominated by the commission, and (3) retention elections; I include under this label states that also require legislative confirmation of the governor’s selection from the nominating commission. I prefer “Missouri Plan” to the alternative “merit selection,” because the latter has also been applied to systems without retention elections in which a nominating commission must be used to identify candidates.Footnote 103 I refer to the systems in states using a nominating commission without the use of retention elections as using a system of “constrained appointment”; I include here South Carolina where judges are “elected” by the legislature from a list of candidates provided by a nominating commission.
Patterns of Change in Judicial Selection: A Summary
Over time there has been a pattern to the changes in state judicial selection. In the mid-nineteenth century the shift was from appointment to elections, with new states also adopting judicial elections. Over about a thirty-year period, from 1907 through the late 1930s, several western and midwestern states switched from partisan elections to nonpartisan elections. From the late 1950s through about 1980, changes again came in several western and Midwestern states in the form of shifts from contested elections to Missouri Plan systems. And starting in the 1970s, six southern and border states shifted from partisan elections to nonpartisan elections; three southern states adopted Missouri Plan systems for their appellate courts starting in the late 1960s. Clearly, the types of changes that have occurred have tended to come in clusters.
Changing Methods of Judicial Selection, 1980–2017
Between 1980 and 2017 thirteen states made major changes in their processes for selecting and retaining some or all of their judges. Most states made changes similar to what had been done by other states in earlier years. The most common change, seen in five states, was a shift from partisan to nonpartisan elections:
Mississippi, 1994, by statute.Footnote 104
North Carolina, 1996 for superior court judges, 2001 for district court judges, and 2002 for appellate court judges, all by statute.
Three states shifted to Missouri Plan systems for some or all judges:
South Dakota, 1980 for Supreme Court, by constitutional amendment, from nonpartisan elections.
Tennessee, 1994 for Supreme Court, by statute, from partisan elections.Footnote 105
Utah, 1985, by constitutional amendment, from nonpartisan elections.
One state combined appointment from a nominating commission list with a system of partisan elections for initial terms and retention elections for subsequent terms:Footnote 106 New Mexico, 1988, by constitutional amendment. All these changes followed broad patterns of earlier changes to nonpartisan elections, Missouri Plan type systems, or the combination of partisan elections followed by retention elections. Most recently, there have been changes deviating from these earlier patterns.
Three of the states not using popular elections also made changes that were in some ways consistent with the pattern of moving away from highly partisan systems. In Rhode Island, for example, Supreme Court justices had previously been elected by the two chambers of the state legislature sitting together as a “grand committee,” with lower court judges appointed by the governor subject to legislative confirmation. In 1994, the legislative election of Supreme Court justices was ended in favor of having all judges appointed by the governor from a list of nominees provided by a nominating commission, with confirmation by the Senate. In Connecticut, where judges had been appointed by the governor subject only to legislative approval,Footnote 107 the system was modified to limit the governor’s selection to a standing list of persons who had been found to be qualified by the Judicial Selection Commission. In South Carolina, where judges are elected by the legislature, a nominating commission was added to the process; only persons on lists provided by the nominating commission can be chosen by the legislature.
As discussed earlier, North Carolina shifted back toward partisan elections for its Court of Appeals in 2015. In 2016, the North Carolina legislature passed a bill, signed into law by the governor, that changed selection/retention for its Supreme Court to a system that was similar to what existed in Illinois, New Mexico, and Pennsylvania: a contested election for the initial terms followed by retention elections for subsequent terms; the contested election was to remain in the nonpartisan format. However, as is discussed in detail in Chapter 2, that change was struck down by a state court as violating the state constitution. In 2017, the North Carolina legislature passed legislation that was signed into law, reverting to partisan elections for all levels of courts. Kansas passed legislation that was signed into law, eliminating the role of the nominating commission element of the Missouri Plan – the first state to do soFootnote 108 – for its Court of Appeals in 2013; with this change, governors are no longer limited in their choices to persons nominated by a nominating commission. Under the new system, which is modeled on the process for appointing federal judges, the governor is empowered to appoint any person with the qualifications required by law, subject to confirmation by a majority vote of the state Senate;Footnote 109 retention elections continue to be used for subsequent terms. In 2014, Tennessee voters passed a state constitutional amendment adopting a plan for the state’s appellate courts similar to that adopted the prior year for the Kansas Court of Appeals; Tennessee governors can now appoint any person with the required legal qualifications, subject to confirmation by both chambers of the state legislature, with the judges standing in retention elections for subsequent terms.Footnote 110
In addition to these major changes, states made a range of minor, but still important, changes to various procedures. For example, Washington (2013) ended the practice of judicial elections being decided at the primary election when there were only two candidates. West Virginia (2013) instituted a requirement that when a vacancy occurs for a position of magistrate judge, the person appointed to fill the position must be of the same party as the departing judge. Texas passed legislation in 2017, effective with the 2020 election, eliminating the straight-ticket option on ballots that had included all levels of courts and often had a significant effect on results in trial court elections in some of the large urban counties. Several states established systems for judicial performance evaluations, and various changes were instituted in the membership and/or processes used by nominating commissions or performance evaluation commissions.
The changes that were made are only a small fraction of the proposals that received at least some legislative action between 1980 and 2018. I was able to identify almost 100 unsuccessful proposals for changes coming from thirty-one different states that received at least some serious legislation attention. There were many more proposals introduced that failed to receive any legislative action. From 2008 through 2018, the Gavel-to-GavelFootnote 111 website lists almost 1,700 proposals for change to judicial selection systems or procedures, although many of those listings represented minor variations on other listings, concerned relatively minor matters of selection/election administration, or had been carried over from the previous legislative session. Nonetheless, there were probably between 800 and 1,000 distinct proposals for changes to state judicial selection with only 2 or 3 percent becoming law.
Contemporary Politics of Judicial Selection Reform
The chapters that follow examine the politics of judicial selection reform since 1980, covering both successful and unsuccessful efforts to make changes. What will become evident through these chapters is that there has been a shift in the dynamics of judicial selection change. From the 1950s through the 1980s, change was largely in the direction of reducing the explicit role of partisan and interest politics by shifting to constrained appointment or some version of the Missouri Plan, which in the words of a pair of advocates for the system, “minimize[s] the role of politics in judicial selection [which means that] judicial aspirants in merit plan states are not required to raise money, seek party support, or campaign for office as are judicial candidates in elective states.”Footnote 112 However, by the 1990s one begins to see efforts to make changes that, although possibly labeled as reducing partisanship, have clear partisan or interest-group motivations and were intended to maintain or shift which side of the political spectrum would be advantaged in the selection and retention process.
The latter shift is evident in two phenomena. First, there has been a growing effort to end or effectively alter the role of the nominating bodies that were claimed to make the Missouri Plan a system of merit selection. At least some advocates tie this to the dominant role of lawyers, many of whom were selected in some way by their professional colleagues, on most of the nominating bodies. The ending of the requirement regarding some courts in Tennessee and Kansas that the governor select appointees from lists prepared by an independent nominating commission was mentioned previously. When the Tennessee statute requiring the use of a nominating commission was renewed for two years in 2009, the composition of the commission was changed so that all members were appointed by legislative leaders and required that at least one and no more than seven of the members be nonlawyers.Footnote 113 Previously, 14 of 17 members had to be lawyers, and although the legislative leaders made the appointments, 12 of the 14 lawyer members had to come from names submitted by four specific lawyer organizations.Footnote 114 The move to limit or end the role of independent nominating commissions was motivated in part by the perception, or at least the assertion, that the domination of the commissions by members of the legal profession resulted in nominees who were too liberal because the legal profession leaned to the Democratic, and hence liberal, side of the political spectrum.Footnote 115
The second development is seen in changes in North Carolina, which is discussed in detail in Chapter 2. First came a change under Democratic control from partisan to nonpartisan elections for judicial offices when it became clear that Republicans were winning an increasing number of those elections. Then, after Republicans gained control of the “political” branches of state government, there was a change back to partisan elections, arguably because Democrats had continued to have significant success in the nonpartisan Supreme Court elections. Another example can be seen in West Virginia. After Republicans gained control of the state legislature, they shifted to nonpartisan elections, probably because Democrats were having continued success in those elections; interestingly, the legislation making the change was not vigorously opposed by Democrats and was signed by the Democratic governor.
Why was there a shift in the direction of the successful change efforts after the 1980s? One explanation is that much of the change was happening in formerly one-party Democratic states in the South. The timing of this shift coincided with the breakdown of Democratic dominance in the state politics of southern states and led to efforts by Democrats to slow down Republicans gaining control of the appellate courts or efforts by Republicans to seize or consolidate control. The second explanation relates to the success of efforts in 1986 by business interests to remove three California Supreme Court justices seen as unsympathetic to those interests. Prior to this time, business interests tended to view the election of judges as threatening their interests because candidates would need to appeal to voters who would not be sympathetic with big business. The 1986 experience in California taught conservatives and other business interests that they could use the public’s fear of crime as a vehicle to attack incumbent judges they wanted to get off the bench or to oppose candidates for open seats they feared would be unsympathetic to business interests.
A Methodological Note and a Comment on Sources
In several of the chapters I use a measure of partisanship in statewide judicial elections that I label the “partisan correlation.” This measure, which I used extensively in my book on state supreme court elections,Footnote 116 was pioneered by Kathleen Barber, David Adamany, and Philip Dubois.Footnote 117 The partisan correlation uses county level election results for judicial elections and gubernatorial elections. For partisan judicial elections and formally nonpartisan judicial elections in which candidates are formally nominated by the political parties, the measure is the correlation between the percent in each county voting for the Democratic gubernatorial candidate and for the Democratic judicial candidate. When there is no contemporaneous gubernatorial election, the average percent in each county across the gubernatorial elections most immediately preceding and following the judicial election is used to compute the correlation.Footnote 118 In theory, this correlation can be either positive or negative, and has occasionally been negative in the two states where parties nominate judicial candidates, but the general election is formally nonpartisan because no party label appears on the general election ballot. In the case of the other nonpartisan elections, those without formal party nominations, no attempt was made to identify the party affiliations of the judicial candidates, and the absolute value of the correlation is used. For retention elections, the correlation is between the percent voting in favor of retention and the percent voting for the Democratic gubernatorial candidate; this correlation can be negative if counties voting more heavily Republican also voted more heavily in favor of retention.
The research for the chapters that follow relied upon a wide range of sources, including reports, scholarly articles, articles in bar journals, voting records in legislative journals, interviews or correspondence with key actors or knowledgeable academics, online sources such as Ballotpedia.com and Wikipedia.com,Footnote 119 and newspaper reports. The newspaper sources were what was available in digitized form. Some of these were in the form of online publications of individual newspapers or broadcast media. Much more came from two digitized collections of newspapers, newspapers.com and newsbank.com; where possible, when articles found on one of these sources include the original page number in the printed version, I have included that information in the relevant footnote. I also draw on data on state supreme court elections, either those specifically reported in my book on those elections,Footnote 120 or those that I have archived on Dataverse.Footnote 121
