Why do we elect judges? Wisconsin’s highly partisan race begs the question.

A Policy Brief for Journalists and Editorial Boards

National media is already focusing on the April 4 Supreme Court election in Wisconsin as a major political battle with critical implications for issues ranging from abortion to gerrymandering to voting rights. At stake is the open 7^th seat on the Wisconsin Supreme Court currently divided between often contentious conservative and liberal factions.

The election is nominally nonpartisan – no candidate will have a party label after their name – but barring a very surprising result in the February 21^st primary, Wisconsin voters will choose between two starkly opposed candidates, each strongly backed by one party or the other and each spending record sums, largely from conservative or liberal donors.

News coverage of the election will concentrate on the candidate “horse race” and the potential political implications of a win for either side. But this election should also raise the larger question of whether electing state justices makes sense in the first place, particularly in a state as dangerously polarized as Wisconsin.

This policy brief for journalists and editorial boards summarizes how state supreme court justices are selected across the country and highlights the evidence against judicial elections and in support of a less polarizing approach that deserves more attention called “merit selection.” Used in 23 states, merit selection relies on broadly representative judicial nominating commissions (JNCs) to name a short list of nominees for selection by the governor. Though no system is completely apolitical, many scholars and good government advocates agree that merit selection is the best option for creating an independent and impartial judiciary.

How are state supreme court justices selected across U.S. states?

While details vary by state, there are four main ways that supreme court justices are selected in the U.S.: 1) nonpartisan elections (though candidates’ political affiliation is often well-publicized); 2) partisan elections; 3) political appointments by either the governor or legislature; and 4) by merit selection. As the table below illustrates, nearly half of states use merit selection.

What are the arguments against the election of supreme court justices?

• In a 2001 national survey of judges, nearly half of state court judges agreed that campaign contributions had at least some impact on judicial decisions.
• Studies show that interest group funding and dark money have increased sharply over the last two decades and now dominate judicial campaigns. Litigants and firms representing clients in judicial proceedings are often not prohibited from giving money to an elected justice’s campaign, creating an inherent conflict of interest.
• More and more, judges face election-related cases of critical importance to an increasingly polarized nation. In that context, elected judges, who have close affiliations to a party, significantly undermine the national consensus needed around elections rules and election results. A 2016 study found that judges’ “decisions are systematically biased by … campaign finance and re-election influences to help their party’s candidates win office and favor their party’s interests in election disputes.”

Do nonpartisan elections work in keeping politics out of the judiciary?

Though nonpartisan judicial elections are held in many states, scholarly research and evidence from states like Wisconsin demonstrate that nonpartisan ballots usually do not mean a judge will be nonpartisan in practice.

• Some research indicates that judicial candidates running in nonpartisan races often make more extreme rulings or sentencing decisions in order to “signal” their political orientation to voters, who don’t have party labels to guide them.
• Major court rulings in recent decades have allowed candidates in nonpartisan elections to publicly pledge their allegiance to one party.
• In most states with a nonpartisan election system, political parties and interest groups still make contributions and endorsements, which often defeats the purpose of the nonpartisan label. (A state that may buck this trend is North Carolina, where a recently introduced bill would require publicly funded nonpartisan judicial elections.)

What is merit selection by a judicial nominating commission and how does it work?

Merit selection is a process in which a commission of experts solicits applications for judicial openings and makes recommendations for appointment to another entity, usually the governor.  This method is also known as “assisted appointment.”

• Members of a judicial nominating commission may include representatives of the state bar association, former judges, appointees of legislative minority and majority parties, and members of civil society organizations. (See this study by the Institute for Advancement of the American Legal System for detail on the composition of state JNCs.)
• In most states, the role and composition of the JNC are established in the state constitution. In other states, JNCs are provided for in state statute or executive order.
• In several states with merit selection, once a judge has been appointed, they face a retention election some years following their appointment. In this yes/no vote, citizens decide between allowing the judge to continue serving or vacating the position to have another judge appointed. In other states, judges appointed through a merit selection process must be reappointed by the commission at the end of each term, and in some cases must undergo an application process against other candidates.

What is the best model for a judicial nominating commission?

JNCs vary across the states in the degree to which they achieve separation from politics. The gold standard, recommended by advocacy organizations such as the Brennan Center for Justice, is a structure that precludes selection of a majority of commission seats by either one person, such as the governor, or by one political party. Additional characteristics of this model include:

• There should be an odd number of members with the tiebreaker/chair being a nonpartisan individual (such as a judge or another non-affiliated member agreed upon by other members of the commission).
• Although legal expertise is important to the commission, membership should include both lawyers and non-lawyers, and a range of categories of lawyers should be included (for example, both criminal prosecutors and public defenders). Membership should also reflect the geographic and demographic makeup of the state.
• The final list of candidates for a judgeship should be submitted to the Governor, who must pick from the list. If the governor fails to pick a name, the JNC should be empowered to make the appointment.
• The JNC and its structure should be established in the constitution to ensure its authority cannot be easily rolled back by a partisan legislature.

Why should more states use merit selection?

While political connections and considerations inevitably play some role in any politically important process, merit selection significantly reduces the influence of parties and interest groups on judicial selection, while still involving relevant actors in the government.

• Applicants for judgeships can rely on their experience and background, rather than rhetoric or political connections, to be considered for a judicial position.
• Court rulings will be more likely to be accepted by all sides and viewed with finality, rather than as one side’s victory the other side will organize to counter and overturn.

One comprehensive law review assessment of merit selection concludes: “To foster the appearance of an independent and impartial judiciary, we need a system that emphasizes judicial qualifications, opens the process to all who meet the legal requirements, and in most instances, eliminates the need for political campaigning. Merit selection is such a system.”