Methods of appointing State Supreme Court judges
That law be applied fairly and impartially is a defining ideal of the American legal system. Yet while impartiality lies at the foundation of our courts, it is surprisingly difficult to achieve. Charles Hall, director of communications for Justice at Stake, a nonpartisan campaign for “fair and impartial” courts, told the HPR that even though “judges are sworn to uphold legal impartiality” it is often compromised when judges owe their position to a political party, big donors or the politician who appointed them. The proliferation of, and controversy surrounding, processes to appoint state Supreme Court justices exemplify this difficulty.
There are five different methods by which states select and retain judges for their Supreme Courts. Twenty-four states use either partisan or non-partisan elections, and seven states have their governor appoint judges while five have their state legislatures do the same. Twelve states use versions of a hybrid method, the commission appointment retention elections system. In this method, a bipartisan committee of elected officials, lawyers and citizens nominate candidates for a judgeship, the governor selects one, and in the following election voters decide whether to retain the judge. While all the methods are imperfect, two stand out as the most likely to produce impartial judges: executive appointments and the commission appointment retention election system.
Compromising Campaigns
The pressures on candidates from political parties and financial supporters are seriously problematic for both partisan and nonpartisan elections. In an interview with the HPR Ilya Shapiro of the Cato Institute, who supports the appointment of judges, noted: “A judge will be cognizant of the way the political winds are blowing… these pressures do a disservice.” In addition to the problem of political influence, high spending and conspicuous fund-raising plague both partisan and non-partisan campaigns. Hall believes that the free spending model of partisan elections is worst because “special interests have created a financial arms race in recent years.” Judicial elections are thus the method most susceptible to influence and partiality because of the political and financial pressures candidates face while running.
The system of appointing judges is more fit for filling the bench because it avoids such problems. “Judges running for election is unseemly,” quipped Shapiro, who continued to say “appointments are best because the judicial branch is not meant to be political.” One successful way appointments reduce the influence of special interests, Shapiro continued, is with lifetime or long-term appointments so that “judges are insulated from political pressures.” However, in federal courts lifelong appointments make the appointment of each new judge politically significant. The governor is given the opportunity to fashion their state court as they see fit, which makes appointments susceptible to political pressures, though to a lesser degree.
Creditable Compromise
The system that best incorporates the insulation of appointments without drawing political attention is the commission appointment retention election system. In an interview with the HPR, Malia Reddick, director of research and programs at the American Judiciary Society, said this hybrid system finds “the right balance between protecting judges’ independence and holding them accountable for their performance, as voters have a choice about a judge in every election cycle.” The hybrid approach finds more support among judicial insiders precisely because of this “checks and balances” aspect.
Yet the hybrid approach is far from flawless. As Russell Wheeler of the Brookings Institute told the HPR, “selection committees have been taken over by certain sections of the bar or trial lawyers.” This imperfection is difficult to avoid, as somebody must make the initial appointments. Reddick suggested that voters be given more information to counterbalance the bipartisan committees through initiatives such as the Judicial Performance Evaluation Program, which “rates judges on information that voters should have.” While such a change would likely improve the hybrid approach, its prospects are uncertain.
Winston Churchill once said, “You can always count on Americans to do the right thing—after they’ve tried everything else.” In the case of state Supreme Courts much has been tried, and the struggle for impartiality is one that all judges and courts share. Judges should be impartial because they make decisions based on written law, not the needs or wants of a constituency. Methods of selection that promote impartiality and keep judges away from campaigns and political winds, like appointments or the hybrid approach, will thus continue to be the most desirable.