The United States currently has four methods of selecting state court judges: partisan elections, nonpartisan elections, political appointment (usually by the executive, sometimes by the legislature), and appointment by technocratic commission (often dominated by the American Bar Association). Amidst recent controversy over the judicial selection process, considering two of the most effective judicial selection processes, the political appointment of judges and partisan judicial elections, could provide key insight into what it means to be a good judge and how to fairly select judges. There is no evidence (as of 2009) that any method of selection produces more racial or gender diversity. This piece will explore two of the most popular methods, appointments and partisan elections, and discuss aspects of the systems in relation to other methods of selection and the weaknesses of the systems.
In the system of political appointment, governors appoint judges to the state Supreme Court and also to local courts. Governors appoint judges in nine states; three of these have life-terms and the other six include the option for the governor to reappoint the judge to additional terms. The most prevalent argument in favor of political appointments of judges relies on the notion of democratic separation. This principle asserts that judges should be separate from the electorate, free to make decisions that reflect their understanding of the law instead of the will of the people. While they are shielded from the people, judges who are appointed by their governor reflect the political preferences of the electorate better than any other system. According to researchers at Princeton in 2013, “the information quality for justices who don’t face voters is on average 33 percent larger than that of justices who face retention elections at some point after being appointed and 39 percent larger than that of justices who are elected. That means justices who don’t face voters in general demonstrate a greater ability to analyze information about a case to reach a correct decision under the law.”
Compared to appointed judges, elected judges are sanctioned more often by judicial disciplinary bodies. This could be, however, because more states have election processes than appointment processes, meaning there are more judges in the elected pool than in the appointed pool. Elections fare worse in terms of perceived legitimacy than the other system does because of campaign contributions: the public does not trust judges’ decisions when they have accepted money from any possible lawyer or litigant. While these might be strong arguments in favor of political appointment, appointments also have some deep-rooted flaws. With closed-door discussions leading up to appointments, the general public will not know why judges were chosen or what their credentials might be, which encourages distrust amongst the public. This also creates a situation in which judges might feel indebted to the governor, which destroys the separation of state power.
Partisan judicial elections stand in stark contrast to political appointments. Currently only 7 states hold partisan elections for some of their state supreme court judges: AL, IL, LA, NM, NC, PA, TX. Many aspects of the partisan judicial election are practical and democratic. The easiest way to convey the ideology of judges’ judicial decision making is through publicizing the party affiliations of the candidates. There is also higher voter participation in partisan elections compared to other types of elections for judges. This means that more people are invested in the judicial system and take an interest in it, fostering democracy and civic engagement. Scholars have found that voters in nonpartisan elections and retention elections can also identify their co-partisans and vote for them, effectively defeating the purpose of non-partisan elections. This shows a lack of evidence proving that removing the partisan affiliation of the candidates from the ballot does anything to alter the nature of judicial elections except cause fewer people to participate. In this sense, partisan elections are a stronger option to compare political appointments to than non-partisan elections.
Partisan judicial elections also are more democratic. What voters want, in terms of judicial styles and mindsets, out of judges varies. Because there are so many different views on the judicial system and its practices, the American public differs greatly from the mainstream legal industry. What the lawyers working within the governor’s office believe should qualify judges is not what the American people believe should qualify them in some cases, as we have seen in recent cases of Congressional approval of Supreme Court cases as well as through legislation brought up during the campaign trail that everyday people disagree with. This disconnect, along with the lack of accountability by those choosing judges on behalf of the governor to the American people, dramatically defies democratic principles.
There is no compelling reason not to prefer transparency throughout the judicial selection process over unclear systems that tie the judicial to the executive branch. Partisan elections are superior to other methods of judicial selection because voters are directly involved in selecting both the candidates who run in the general election and the judges who ultimately ascend to the bench. Adding party affiliation to the ballot creates transparency, is practical, and provides information that many voters find helpful. Since the public is not aware of who is chosen or why they are chosen through the appointment process, there is a complete lack of civic engagement and awareness. The judge is not fully separated from undue influence because public officials, rather than the people, hold the future of the judge’s career in their hands. That is why partisan judicial elections are a more effective and democratic way to install state judges.