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.