How Are State Supreme Court Justices Selected? [POLICYbrief]
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How Are State Supreme Court Justices Selected? [POLICYbrief]


State supreme court justices, uh interpret
the Constitution, the statutes in their states, and
then they also make the common law rules in their states. The purpose of the state supreme court is
to be the final arbiter for all cases that are decided involving state law or state
constitutions. Every state has at least one state supreme
court, with the exception of Texas and Oklahoma, who have two. At the founding of our country, everyone used
political appointment. The federal government did, and the states
did. Some states used legislative, some states
used gubernatorial appointment. In legislative appointment systems, the state
legislature is responsible for appointing and re-appointing judges in that state. Gubernatorial appointment systems are most
similar to the federal system. In these systems, the governor is able to
appoint a judge of his or her choosing. And that judge is subject to confirmation
by the state senate. In the early 1800s, states began to move away
from political appointment and start electing their judges with partisan elections. This was a time when the country was becoming
much more enthralled with democracy. Ordinary people having more say over what
their government was doing was becoming a popular philosophy. So as democratic theory was becoming more
popular, many, many states switched from political appointment to partisan elections. By the time we get to the Civil War, the vast
majority of states are using partisan elections to pick their judges. In partisan elections, candidates are nominated
by political parties, either in a primary or convention. And run in the general election with the party
affiliation of these candidates on the ballot. So voters know at the ballot box when they’re
making their selection which candidate is endorsed by Democratic Party and which candidate
is endorsed by the Republican Party. After the Civil War, uh, in the late 1800s
and early 1900s, there was a movement in the United States called the Progressive Movement. This movement was a good government movement,
frankly. They thought that there was a lot of corruption
in politics. And they wanted government to be more transparent
and less corrupt. And so they tried many things to cleanse the
democratic process of the corrupting influences of, uh, party politics. And so one of the first things they did with
judges was, they decided to try nonpartisan elections. In nonpartisan elections, the parties do not
nominate candidates, although in some cases they do endorse them. And when voters go into the ballot box, they
do not know which candidate, if any, is endorsed by the Democratic Party or the Republican
Party. You could have two Democrats running for a
seat, two Republicans running for a seat, or one Democrat, one Republican. And this is where we have kind of the dawn
of the administrative state. The progressives thought that instead of letting
politics pick judges, politics could be ugly and dirty and corrupt, let’s find experts
to pick our judges. They asked a legal profession, the bar. You’re the experts on law, you tell us who
our judges should be. And that was the Missouri Plan, merit selection,
the commission system. The commission-retention system involves a
judicial nominating commission which presents the governor with a list of names, usually
three to five names. And the governor’s constrained to appoint
a judge from that list of names. After a period of time, the judge stands before
voters in a retention election. The state supreme court gets the final say
on what state law means. That can mean interpreting the state constitution,
statues, or it can mean making common law. It’s important to have those judges somewhat
reflective of the democratic opinion uh, in their states. Uh, otherwise, the laws will not be made in
the image of the people, uh, but will be made in someone else’s image. There are two dimensions on which these judicial
selections differ. The first is independence versus accountability. All methods of selection provide for some
measure of ju-judicial independence and some measure of judicial accountability. The question is, who are they independent
from, and who are they accountable to? The second dimension is transparency versus
lack of transparency. Politics enters judicial selection at all
phases, no matter what system is used. The question is, are the politics transparent
and explicit, or are they kept behind closed doors so the public can’t see them? States should be free to pick the methods
that they think wors- works best for them. States have a right to experiment with different
ways of doing things. Um, and they should be free to do that. Each method of selection has its strengths
and weaknesses. And so ultimately, the fact that there are
a lot of different methods of judicial selection in the states, is a testament to the fact
that different voters and policymakers view these strengths and weaknesses differently. And this is one of the great beauties of federalism.

One Comment

  • Maximus Desimus

    hiding which party is supporting a judge is wrong!!!! People need total transparency to make such important decisions!!!

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