Removing Politics from State Judicial Selection

. . . Through Politics

Garreth A. DeVoe
Currently, six states provide for selection of all of their state court judges exclusively by partisan election.

Currently, six states provide for selection of all of their state court judges exclusively by partisan election.

sirtravelalot via Shutterstock

While federal courts may determine wide-ranging constitutional issues and receive the most press attention, 95 percent of all cases in the United States are filed in state courts. State courts address significant legal issues (e.g., striking abortion laws, revising congressional district maps that have been gerrymandered, etc.). State court judges’ roles include the fair application of laws, but fairness may come into question when considering how state court judges are selected.

At the state supreme court level, more than half of the states have an appointment system whereby a governor nominates a judicial candidate based on a list an independent merit commission provided. At the intermediate appellate level, 19 states use gubernatorial appointments, and 11 use nonpartisan elections. At the trial court level, 19 states hold nonpartisan elections, and 18 states provide for gubernatorial appointments. Currently, six states—Texas, Illinois, Pennsylvania, North Carolina, Louisiana, and Alabama—provide for the selection of all of their state court judges exclusively by partisan election. The small remainder of states generally either use a combination of the above or legislative appointment.

Significantly, rather than a judicial candidate’s experience, legal skills, or temperament, the results of these state judicial elections are often based on nothing more than the party affiliation of the executive or legislative branch candidate at the top of the ballot and the prevailing political sentiment of a geographic area. For example, in November 2018, voters of Harris County, Texas, the third-largest county in the nation, voted to replace more than 30 Republican incumbent judges with Democratic judicial candidates, resulting in Democratic candidates winning all 59 judicial races. Clearly, the loss by every single Republican incumbent judge was not a result of his or her lack of experience, legal skills, temperament, or other ability necessary to carry out the daily duties of a state trial court judge.

Recent pushes for constitutional amendments in Pennsylvania and Texas may result in changes to these states’ judicial selection systems. First, in Pennsylvania, state lawmakers are currently considering a constitutional amendment that would create a bipartisan commission to recommend qualified judges for appellate courts to the Pennsylvania governor, who would then nominate the same to be confirmed by the state senate. In 2015, Democratic judicial candidates won the three open seats on the Pennsylvania Supreme Court, causing the court to shift leftward. More than $15 million was spent on that race, which was the most expensive state Supreme Court race to date. Since 2015, the court has struck down a congressional map drawn by the Republican-controlled state legislature, increased municipal authority, and sustained a broad interpretation of an environmental rights constitutional provision.

Likely as a response to perceived “legislating from the bench,” a Pennsylvania legislator has proposed a merit-based judicial selection commission. Pennsylvania 2019 Session House Bill 111 provides, inter alia, that the 13-member commission will consist of four members appointed by the minority party in the state legislature, four members appointed by the majority in the state legislature, and five members appointed by the governor. Of the five members appointed by the governor, only three members may be registered with the same political party. The commission would publicly solicit nominations for appellate court vacancies, and 10 of the 13 members must affirmatively vote for a list of five of the most qualified individuals, which would then be submitted to the governor for consideration prior to the governor submitting his choice to the Pennsylvania Senate. Upon Senate confirmation, the judge would serve for four years, face a nonpartisan retention election, and subsequently stand for retention election every 10 years.

While this bill is likely the Republican-controlled state legislature’s reaction to the Pennsylvania Supreme Court’s rulings since 2015, the potential benefit of this constitutional amendment is clear: The odds of a Pennsylvania state court judge having the experience, legal ability, and temperament most helpful to being an effective judge will be statistically higher than a judge whose sole qualification (particularly in the case of large cities where citizens vote for dozens of judges in a single election) is an “R” or a “D.”

Second, on June 14, 2019, Governor Greg Abbot of Texas, himself a former Texas Supreme Court justice, signed into law a bill creating the Texas Commission on Judicial Selection, which will make recommendations to the Texas Legislature to potentially alter the state constitution with respect to judicial selection. Although bills to change judicial selection of Texas judges have failed to pass the state legislature eight times since 1993, the chairman of the newly created commission has stated that the governor’s current public support is uniquely helpful to this drive.

The stated purpose of the commission is to consider the fairness and effectiveness of selecting state judges through partisan elections, the fairness and effectiveness of the judicial selection methods adopted by other states, and the relative merits of alternative methods for selecting state court judges. The Commission is required to submit its report, recommendations, and proposed changes to the Texas Constitution to the governor and legislature by December 31, 2020. This commission will undoubtedly review Pennsylvania House Bill 111 with its own proposed stated constitution changes in preparing its recommendations.

While the impetus for the law creating this commission may have itself been partisan, considering the November 2018 Republican judicial election losses in Texas’ largest county, the commission’s creation will nonetheless likely result in recommendations that, if adopted through a constitutional amendment, may create a more qualified and less partisan state judiciary.

While the Texas and Pennsylvania legislatures have taken steps toward selecting judges based on merit, North Carolina has moved in the opposite direction. On March 23, 2017, the Republican-controlled state legislature overrode the governor’s veto of a bill creating partisan judicial elections at the trial court level. Taking effect in 2018, North Carolina completed a years-long transition from a completely nonpartisan judicial selection system, with no merit-selection component, to a completely partisan judicial elections, also with no merit-selection component. Thus, North Carolina’s particularly divided legislature and trend to partisan elections will likely result in a judiciary that is less experienced and less competent than in years past when voters were more likely to research a judicial candidates’ qualifications or abstain rather than vote for a candidate based solely on his or her party affiliation.

The Texas Commission on Judicial Selection will likely recommend a state constitutional amendment similar to that being considered in Pennsylvania. Depending on how willing these states’ legislators are to put aside partisanship in pursuit of the fairest-possible judiciary, the Texas and Pennsylvania judicial selection systems may begin to resemble those of the 44 states with more impartial systems. Ironically, partisan inclinations to preserve the current positions of elected judges affiliated with certain parties by potentially instituting merit-based commissions and retention elections for future judicial candidates may also result in more impartial selection systems. Thus, whether these legislators seek to attain the most qualified and fair judges, act on partisan inclinations, or simply follow the majority of states with nonpartisan judicial elections or gubernatorial judicial appointments combined with merit-based nominating commissions, Texas and Pennsylvania will likely attain judicial selection systems and judiciaries that are more just within the next several years.

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Garreth A. DeVoe

Garreth A. DeVoe is an associate in the Houston office of Seyfarth Shaw. He represents energy companies, technology companies, and health care institutions in complex commercial litigation and helps clients protect their trade secrets and enforce their contractual rights.