Posted by: JanF | March 31, 2011

Courting disaster, Part 2 – Appealing Choices

Courts of appeal at the state level are in the news these days and many people are as surprised by the fact that appellate judges are elected as they are by the acrimony involved in these races.

Last night we looked at the ways that appellate court judges are selected. Tonight we will look at the options, think about “what could go wrong?” and “what can go right?”

As we discovered, there are generally three ways that the states (and the District of Columbia) choose appellate court judges:
1. Merit selection from nominating commission
2. Elections, either non-partisan or partisan
3. Appointed by governor or legislature

About half the states use merit selection with a nominating commission. Out of the rest, 21 states have direct elections and 5 are appointed by governors or legislature.

For most of the states that use merit selection, elections are required to affirm the selection. The judges periodically run in retention elections where voters decide whether to retain or release a judge.

Elections are not inconsequential

The horror stories from electing judges are rife as we find that judicial elections in Wisconsin may be about something other than justice:

… it is unfortunate that this race has become a flashpoint for the state’s broader political battle.

But the stakes in judicial elections are high as witnessed by the money flowing into it. Wisconsin Manufacturers & Commerce (WMC) is raising money for Daivd Prosser with this letter:

Dear Wisconsin Business Leader,

The government worker unions are openly attempting to overturn the November elections, buying an activist majority on the Wisconsin Supreme Court, and grinding our democracy to a halt because Governor Scott Walker has refused to raise taxes to balance the budget. […]

Click here to make a generous corporate contribution to counter their efforts. Donations are unlimited and undisclosed. […]

WMC IMC will mount a statewide TV ad campaign to educate the public about Justice Prosser’s common sense approach. And, we will educate the public about Kloppenburg’s radical agenda, and how the union bosses want her to stand in the way of reform.

Please, give today. Our business climate is at stake.


Even when the judge is chosen from a pool put together by a nominating committee there are retention elections to give voters a chance to fix any mistakes that may be made.

What could go wrong? Well, retention elections were used by national organizations in Iowa to remove justices who had ruled in favor of Iowa’s same-sex marriage laws. The retention elections got national attention:

A report from the Associated Press reveals Newt Gingrich donated $150,000 to Renewing American Leadership. It then passed the money on to the American Family Association and the Iowa Christian Alliance. They spent millions to oust the judges because of their part in the unanimous decision that banning same-sex marriage was unconstitutional.

Many people are distressed about the intrusion of outsiders into what should be local politics.

Time to fix it?

The Federalist Society supports partisan judicial elections:

partisan judicial elections have substantial advantages over the alternatives not least in that they provide an additional, significant measure of self-government to voters. We will argue that this additional element of accountability to the public is likely to become even more important in the future: as the legal system comes under increasing destructive pressures from the more aggressive elements of the plaintiffs’ bar.

And so does John Nichols, liberal columnist for The CapTimes and The Nation:

Wisconsin elects judges. That’s a good thing. As the progressive reformers of the last century argued, the last thing a community, county, state or nation needs is an unaccountable — and out-of-touch — judiciary.[…]

What’s notable about Wisconsin’s system of electing municipal, circuit and appellate judges, as well as Supreme Court justices, is that here the voters get to be a part of the judicial debate and the decision making. This, despite what is said by proponents of the corrupt and anti-democratic “merit selection” scheme for elite appointment of judges, is as it should be in a democratic state.

Supreme Court Justice Ruth Bader Ginsberg weighs in:

Justice Ruth Bader Ginsburg said Thursday night that she believes states should give up the practice of electing judges. “If there’s a reform I would make, it would be that,” Ginsburg said.

Sandra Day O’Connor was involved for three years in a project at Georgetown University on the state of the judiciary. On a visit to Iowa, she talked about the Iowa court system:

Retired Supreme Court Justice Sandra Day O’Connor on Wednesday told more than 200 elected officials and guests of the Iowa Bar Association from across the state that she admires Iowa’s court system.

“Iowa has made a good choice,” O’Connor said. “That’s why people say, ‘As Iowa goes, so goes the nation.'”

But she also warned the crowd of the dangers of special interest and campaign fundraising in judicial elections, like that of the big money campaign led by failed gubernatorial candidate Bob Vander Plaats to oust three Iowa Supreme Court justices. O’Connor said ousting justices based on one case is not a proper reaction.

“Justice [David] Souter and I both look at the Court as the one safe place where a person can have a fair and impartial hearing to resolve a legal issue, and we have to keep that,” O’Connor said. “[We] have to address the pressures being applied to that one safe place … to have it where judges are not subject to outright retaliation.”

Merit selection has been proposed for Wisconsin in editorials in the state newspaper of record:

Picking judges based on merit, by a nonpartisan committee in a transparent process, would:
• Reduce the role of money and politics in judicial selection.
• Avoid conflicts of interest that arise when judges are tied to campaign contributors who have interests in cases.
• Improve Wisconsin’s ability to ensure it gains the highest quality judges.
• Restore public trust in impartial justice.

As with every bold idea, the devil is in the details. “Impartial”, “avoid conflicts”, “high quality” sounds great but “appointed by governor”, “still no rules about recusal” and “gaming the commission” may also be possible.

And money from contributions is not the only conflict. Hyper-partisanship by the selection of pure political players to the bench can also create a conflict. In Wisconsin, the current supreme court justice up for re-election was the Republican leader of the state assembly. That is not just a Republican. That is a Republican who was tasked with keeping his party in power by any means possible.

Why do we care? One more time with emphasis

There is a lot of law decided in state courts. While one state’s judgements do not create binding precedents for other states they may present persuasive precedents. For that reason, the rulings of one state may impact another.

So are we courting disaster with the way we are selecting the judges who sit on the highest state courts? If so what can we do to make the changes or improve the process?

Some questions to spur discussion:
1. Can money be eliminated from court elections?
2. Which conflicts matter most: money or partisanship?
3. Can rules be put in place to keep governors from appointing judges as political favors?
4. Is there any way to create a fair impartial court system?
5. Is it okay to settle for “mostly okay”?
6. How do we know if the system is working?

(A version of this post originally appeared on 03/31/2011 on BPI Campus)