In recent decades, state judicial selection has become increasingly politicized, polarized, and dominated by special interests. In the face of these threats to state courts’ legitimacy and to the promise of equal justice for all, it is time to rethink how we choose state court judges.
Introduction
When most people think of the courts — or talk about judicial selection — they focus on the federal courts, particularly the U.S. Supreme Court. But while federal courts get the most attention, Americans are far more likely to find themselves before state court judges. Ninety-five percent of all cases are filed in state court, with more than 100 million cases coming before nearly 30,000 state court judges each year. In recent years, state supreme courts have struck down tort reform legislation, ordered state legislatures to equalize funding for public schools,3 and declared a state’s death penalty unconstitutional.
Because state courts have a profound impact on the country’s legal and policy landscape, choosing state court judges is a consequential decision. And, in recent decades, judicial selection has become increasingly politicized, polarized, and dominated by special interests — particularly but not exclusively in the 39 states that use elections to choose at least some of their judges. Growing evidence suggests that these dynamics impact who is reaching the bench and how judges are deciding cases.
Pennsylvania’s 2015 supreme court election for three open seats exemplifies many of the problems with judicial selection today. The election, which set a new spending record for state supreme courts, was largely funded by business interests, labor unions, and plaintiffs’ lawyers — all groups that are regularly involved in cases before the court. Millions of dollars went into negative ads that characterized candidates as issuing “lenient sentences” and “failing to protect women and children” — amid growing evidence that such attacks make judges more likely to rule against criminal defendants.7 And, in a state where people of color make up more than 20 percent of the population,8 none of the 2015 candidates in the general election was a racial or ethnic minority, and the Pennsylvania Supreme Court remains all-white.
Having monitored judicial elections and other state court issues for almost two decades, the Brennan Center has chronicled numerous threats to the fairness and integrity of state courts that are closely tied to how states choose their judges:
- Outsized role of money in judicial elections: A flood of special interest spending in judicial elections is undermining the fairness of state courts. Judges regularly hear cases involving campaign supporters, and, in one survey of state court judges, nearly half said they thought campaign contributions affected judges’ decision-making.
- Politicization of campaigns: Judicial campaigns have also become more overtly political, regularly including partisan language and statements on contested political issues such as gun rights or religious liberty. For neutral arbiters, this heightened political temperature risks exacerbating pressures to decide cases based on political loyalty or expediency, rather than on their understanding of the law.
- Lack of judicial diversity: Neither elective nor appointive systems of choosing judges have led to a bench that represents the diversity of the legal profession or of the communities that courts serve. Research suggests that diverse candidates face numerous challenges in reaching the bench, from fundraising difficulties, to inadequate pipelines for recruitment, to bias, both explicit and implicit. The resulting lack of diversity undermines public confidence in the courts and creates a jurisprudence uninformed by a broad range of experience.
- Job security concerns affect outcomes: A growing empirical literature suggests that in both elective and appointive systems, concerns about job security are affecting how judges rule in certain high-salience cases, putting judicial impartiality at risk. Numerous studies have found, for example, that when judges come closer to reelection, they impose longer sentences on criminal defendants and are more likely to affirm death sentences. “Reselection” pressures impact judges across the country: In 47 states, judges must be elected or reappointed in order to hold onto their seats.
Recent efforts at reform have focused on either mitigating the role of money in elections through public financing and stronger recusal rules (which govern when judges must step aside from cases), or moving away from contested elections altogether, typically to a “merit selection” system in which a nominating commission vets potential candidates, who are then appointed by the governor and later stand for periodic yes-or-no retention elections. But these reforms have failed to either gain traction or to adequately address the challenges facing courts today.
In the face of growing threats to state courts’ legitimacy and to the promise of equal justice for all, we need to rethink how we choose state court judges.
Identifying the problems facing state courts is only the first step. Any alternative system of choosing judges will have its own advantages and disadvantages, and may advance or impede important values related to the selection of judges — including judicial independence, accountability and democratic legitimacy, judicial quality, public confidence in the courts, and diversity on the bench. Rethinking judicial selection therefore raises important empirical questions about the likely impact of different systems on these values. It also raises normative questions about how to balance these values when they come into tension. To make these judgments, we need to understand how different selection systems actually operate today and what tradeoffs are posed by potential alternatives.
This paper offers a framework for considering these important questions. Part I of the paper looks more closely at some of the problems plaguing our state court systems today, many of which are closely linked to states’ systems for choosing judges. Part II discusses the basic values that judicial selection should promote and describes what we know from existing research about how different selection systems impact these values. Part III suggests a series of unanswered questions and other considerations that should inform inquiries into potential reforms.