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The introductory chapter opens with a brief discussion of recent events in two states, North Carolina and Tennessee. The chapter lays out the contrasting motivations of legal professionalism and partisan/policy responsiveness, which are linked to the ideas of the democratic and legal subcultures described almost 50 years ago by Richard Richardson and Kenneth Vines. A highly abbreviated history of judicial selection in the U.S., emphasizing the various phases, sets the stage for the chapters that follow.
It took three tries for Arkansas to make the change from partisan to nonpartisan elections. Twice, in 1970 and 1980, proposals for revising the state constitution that included changing to nonpartisan judicial elections were rejected by the voters. By 1999, when yet a third proposal was authorized by the legislature, Republican strength in the state had increased substantially. However, there were many more Democrats running for judicial office than Republicans. Because, historically, primary elections were entirely the responsibility of the parties, the parties set and collected filing fees from candidates running in their party primaries. Filing fees from judicial candidates constituted a significant source of revenue for the Democratic Party but not for the Republican Party. The combination of Democratic concerns that Republicans would start winning an increasing share of judicial offices and the Republican desire to deprive the Democratic Party of the revenue from filing fees paid by large numbers of judicial candidates provided the motivation for the legislature to pass and send to the voters another amendment changing to nonpartisan elections.
The conclusion briefly summarizes the results, including a table that lists each state covered and assesses the relative importance of politics/policy versus professionalism in each. There has been a temporal change in the central motivation for change efforts: a shift around 2000 from primary emphasis professionalism to politics/policy. Two other important patterns are also discussed, First, the preference for a more political/policy-driven approach to judicial selection used to be associated with the political left but is increasingly coming from the right side of the political spectrum; two possible explanations for this change are discussed. The second pattern the greater willingness of citizens to surrender their role in contested judicial elections for appellate courts than for local trial courts. To explore this latter point, a short survey was conducted asking respondents to rate the importance of characteristics to be considered in selecting judges. Legal professionalism characteristics tended to be rated as more important than political characteristics, and this was particularly true for state supreme court justices as compared to local trial judges.
West Virginia is the most recent state to have changed from partisan to nonpartisan elections for its judges, with the first nonpartisan elections occurring in 2016. Impetus for change came in significant part after controversial elections for the West Virginia Supreme Court of Appeals, one in 1988 and another in 2004. However, those controversies were not enough to produce the change; it took the capture of the West Virginia legislature by the Republican Party, which had long advocated for nonpartisan elections, to produce the 2015 legislation that made the change. Democratic legislators were divided about the change, with some voting in favor and some opposed; the Democratic governor signed the legislation. Unrelated to the change in election format, in 2018 the justices of the West Virginia Supreme Court of Appeals became embroiled in allegations of misuse of government property and extravagant expenditures on their offices. These allegations led to three justices resigning, one of whom pled guilty to criminal charges, and a second being convicted at trial and sentenced to prison.
The voters in both Florida and South Dakota approved the adoption of a Missouri Plan system for appellate courts, Florida in the 1970s and South Dakota in 1980. Voters in both states later rejected extending the system to trial courts. The adoption of the Missouri Plan for Florida’s appellate courts in 1976 came in the wake of a series of scandals involving the justices of the Florida Supreme Court. Two years later and then again 22 years later, Florida’s Constitution Revision Commission put the question of whether to extend the Missouri Plan to the trial courts before the voters, who then rejected the proposed change. The impetus for change in selection/retention of South Dakota’s Supreme Court justices appears to have come largely from the state bar. In 1980, the voters approved a Missouri Plan system for the South Dakota Supreme Court and did not divide along party lines. In the early 2000s, a proposal to extend the system to the trial courts was presented to the voters, who rejected the proposal.
Minnesota, Pennsylvania, Texas, and New Hampshire differ from one another. In Pennsylvania, there were long-standing efforts by groups such as Common Cause and the League of Women Voters to get a constitutional amendment for a Missouri Plan on the ballot; however, members of the legislature from both parties have not been supportive of the effort. In Minnesota, the decision in Republican Party of Minnesota v. White prompted concern that judicial elections would become politicized. However, the fact that no such politicization has happened, combined with the lack of interest in making such a change among Republican legislators, has meant that little has happened. In Texas, a push for a constitutional amendment implementing the Missouri Plan system was made by some Republican members of the Texas Supreme Court. However, the plan provoked little interest from the Republican-dominated legislature. In New Hampshire, where there are no popular judicial elections, a series of scandals plus conflict between the state supreme court and the legislature led to unsuccessful efforts to impose a nominating commission requirement and/or senate confirmation.
North Carolina could be described as the archetype of political/policy motivation in states changing their judicial selection/retention systems. Although the first change from partisan to nonpartisan elections came in response to litigation, most of the changes to nonpartisan elections were made when the Democratic Party controlled the legislature, but Republican judicial candidates were having increasing success in partisan judicial elections. Once Republicans obtained political control in the state, the legislature sought to manipulate judicial selection/retention to advantage Republicans, albeit sometimes being hoisted on their own petard.
Utah was the last state where the voters approved the adoption of a Missouri Plan system. That happened in 1985, but the antecedents of that change can be traced to the mid-1940s when Utah voters approved a constitutional amendment empowering the legislature to decide how state judges should be selected and retained with the specification that partisan politics could not be an element of the process. In 1967, the legislature adopted many elements of the Missouri Plan by requiring the governor to fill vacancies, either interim or at the end of a term of an incumbent who did not run for reelection, from a list of candidates forwarded by a nominating commission. Incumbents faced either a nonpartisan election if an opponent filed to run or a retention election if there was no opponent. In 1985, as part of a larger process of constitutional revision, the voters approved a new judicial article that removed the legislature’s power to determine the means of judicial selection/retention and installed a modified Missouri Plan system.
The common thread in Missouri, Kansas, and Oklahoma is the effort by conservatives, both in the legislature and outside, to end the role of nominating commissions in judicial selection. This effort was prompted in each state by decisions made by the state's supreme court, when the majority of justices were selected by Democratic governors. It also reflects the broader view among conservatives, demonstrated by what happened in Tennessee where the nominating commission was abolished, that the dominance of lawyers on the nominating commission tends to produce liberal judges. In these three states, with the exception of one court, eliminating the nominating commission requires a constitutional amendment. The one exception is the intermediate Kansas Court of Appeals because it is a creation of legislature, which allows the legislature to set the method of selection and retention; in 2014, the Kansas legislature abolished the nominating commission for that court. The Republican-controlled legislatures in these three states have not succeeded in getting the needed majorities, or supermajorities, required to send a constitutional amendment to the voters.
In Nevada and Ohio proposals to adopt the Missouri Plan for some or all of the state’s courts were rejected by the voters on multiple occasions. In neither state does it appear that partisan politics was a major element of the decisions to put to the voters the question of adopting a Missouri Plan system, nor does partisan politics appear to be an element of the voters’ rejection of the proposals. Three times, without success, the Nevada legislature sent proposals for constitutional amendments implementing a Missouri Plan system to the voters (1972, 1988, and 2010). The 2010 proposal came in the wake of an extensive newspaper exposé, tracing the cozy relationships between some Nevada judges and litigants who appeared in their courts. Even with this scandal, voters were unwilling to give up their existing role in judicial selection and retention. In Ohio, an initiative petition put a proposed constitutional amendment on the 1987 ballot that would have adopted the Missouri Plan for appellate judges and would have created a local option for that system for trial judges. Ohioans rejected the amendment by a margin of almost 2 to 1.
One of the motivations for changing judicial selection in Mississippi was court modernization. In the 1970s, Mississippi's judicial systems ranked last on an index of legal professionalism. However, a second motivation was more political: it came in response to demands, and lawsuits, from the African American community to revise the judicial districts from which trial judges were elected in order to increase the number of African American judges. There was also a touch of partisanship involved because not long before the legislature voted to switch to nonpartisan judicial elections, a small number of incumbent judges running for reelection switched from the Democratic Party to the Republican Party. The legislature adopted nonpartisan judicial elections in 1994 on votes that did not evidence significant partisanship.
Connecticut, Rhode Island, and South Carolina do not use any form of popular election in selecting state judges. Selection is (or was) through either election by the legislature or appointment by the governor. In each of the three states, one or more controversies surrounding either the selection process or serving judges provided the impetus for changes that required persons selected as judges to have been screened and either approved or recommended by a committee or commission. In Connecticut and Rhode Island, the screening body forwards a short list to the selecting authority; in South Carolina, the screening body reviews applications from persons who desire to be on a list of those eligible for appointment in the future. To the extent that partisanship influenced the change process, it was primarily focused on the composition of the screening body rather than on whether there should be such a body.